Gannett GP Media, Inc. v. Ohio Dept. of Pub. Safety

[Cite as Gannett GP Media, Inc. v. Ohio Dept. of Pub. Safety, 2017-Ohio-4247.]
GANNETT GP MEDIA, INC., Case No. 2017-00051-PQ
D/B/A, THE CINCINNATI ENQUIRER
Special Master Jeffery W. Clark
Requester
REPORT AND RECOMMENDATION
v.
OHIO DEPARTMENT OF PUBLIC
SAFETY
Respondent
{¶1} Ohio is a party state to the interstate Emergency Management Assistance
Compact (EMAC). R.C. 5502.40. The EMAC facilitates mutual assistance between
compact states to manage any emergency or disaster that is duly declared by the
governor of an affected state. The authorized representative of a party state requests
assistance by contacting the authorized representative of another party state. Requests
must provide the following information:
(i) A description of the emergency service function for which assistance is
needed, such as but not limited to * * *, law enforcement, * * *.
(ii) The amount and type of personnel, equipment, materials and supplies
needed, and a reasonable estimate of the length of time they will be needed.
(iii) The specific place and time for staging of the assisting party's response and a
point of contact at that location.
Id. Article III(B). R.C. 5502.40 contains no language prohibiting disclosure of any
assistance records. EMAC requests, agreements, and billing are made using
standardized forms, including the multi-section “REQ-A” request form. A sample blank
REQ-A form (Excel file, sections separated into 8 sheets) can be viewed at:
http://www.floridadisaster.org/Response/Operations/EMAC/documents/EMAC%20REQ-
A%20Form%2012-2011.xlsx. See also http://www.emacweb.org/ for EMAC overview,
processes, and forms (both pages accessed April 13, 2017.)
Case No. 2017-00051-PQ -2- REPORT AND RECOMMENDATION
{¶2} In the fall of 2016, the North Dakota Emergency Management Agency
requested, and the Ohio State Highway Patrol (OSHP) agreed to provide, assistance in
responding to protests over the Dakota Access Pipeline (DAPL) under construction near
the Sioux Tribe Native American Reservation. Ex. A, ¶ 7-9. This agreement was
memorialized by the parties through completion of an EMAC REQ-A form.
{¶3} The Ohio State Highway Patrol is a division of respondent Ohio Department
of Public Safety (DPS). On November 3, 2016, an employee of requester
Gannett GP Media d/b/a The Cincinnati Enquirer (GP Media), made a public records
request to DPS for the following:
1. A list of the names and ranks of the 37 Ohio troopers sent to North Dakota via an
agreement with the Emergency Managemet [sic] Assistance Compact (EMAC).
2. Any and all communication issued or received by any employee of the Ohio State
Highway Patrol, regarding the deployment of these officers.
3. Any document that outlines the agreement between the EMAC and the OSHP
regarding the action of sending the 37 troopers.
4. Any OSHP bylaws or procedures which govern agreements with EMAC.
{¶4} On November 23, 2016, P.R. Casey, IV, Associate Legal Counsel and
Public Records Manager for DPS, responded to each numbered request as
summarized below:
1. Records withheld based on the Security Records exception, R.C. 149.433(A)(1)
& (2)(a), and the Fourteenth Amendment protected privacy interest in officers’
personal security and bodily integrity,
2. Request denied as overly broad, but DPS encloses 39 pages of responsive
records from a previous, more specific request, subject to redactions under
R.C. 149.433(A)(1) & (2)(a),
3. Records withheld on the same basis as request #1,
4. DPS has no public records responsive to this request.
{¶5} On November 29, 2016, John Greiner, legal counsel for GP Media, sent a
letter disputing Casey’s November 23, 2016 responses as to requests numbered 1, 2,
and 3. On December 2, 2016, Casey replied to Greiner’s concerns, and added to his
previous response to Request No. 2 the following:
Case No. 2017-00051-PQ -3- REPORT AND RECOMMENDATION
“DPS does not keep its email records organized in such a manner as to allow for
a successful search based on the overly broad terms provided. Fulfillment of
your request would require our office to scrutinize and analyze every email for
any records containing information responsive to your request. * * * Please be
aware however, my offer from the November 23 letter to work with your client to
narrow the terms of the overly broad search, remains unchanged.”
In a letter dated December 22, 2016, Greiner responded to the December 2, 2016
letter, disputing in further detail the grounds given by DPS for its denials. On
January 11, 2017, Casey responded by affirming his previous responses, and
reiterating that, “I remain ready and willing to work with you or your client to discuss
ways to find actual records. Again, please feel free to contact me at your earliest
convenience to discuss request #2 in more detail.”
{¶6} On January 17, 2017, GP Media filed a complaint under R.C. 2743.75
alleging denial of access to public records in violation of R.C. 149.43(B). GP Media
attached copies of the original records request, and the above-referenced
correspondence with DPS. On February 14, 2017, mediation was conducted with a
representative of GP Media and representatives of DPS. On February 17, 2017, the
court was notified that the case was not resolved and that mediation was terminated.
On March 6, 2017, DPS filed its response pursuant to R.C. 2743.75(E)(2). DPS
attached the affidavits of OSHP Lieutenant Colonel Kevin Teaford; North Dakota (N.D.)
Criminal Intelligence Analyst Cody Larson; Bismarck, North Dakota Police Department
Lieutenant Jason Stugelmeyer; and a printout of a PowerPoint presentation used by
Larson to document and train on the practice of online “doxing.” On March 8, 2017, the
court ordered DPS to submit, under seal, an unredacted copy of the withheld records,
which DPS states are all contained in the REQ-A completed by North Dakota and Ohio,
and invited an affidavit explaining DPS application of a claimed exception to each part
of the withheld records.
{¶7} R.C.149.43(C) provides that a person allegedly aggrieved by a violation of
division (B) of that section may either commence a mandamus action, or file a complaint
Case No. 2017-00051-PQ -4- REPORT AND RECOMMENDATION
under R.C. 2743.75. In mandamus actions alleging violations of R.C. 149.43(B), a
relator must establish by “clear and convincing evidence” that they are entitled to relief.
State ex rel. Miller v. Ohio State Hwy. Patrol, 136 Ohio St. 3d 350, 2013-Ohio-3720,
¶ 14. As for actions under R.C. 2743.75 alleging violations of R.C. 149.43(B), neither
party has suggested that another standard should apply, nor is another standard
prescribed by statute. R.C. 2743.75(F)(1) states that such claims are to be determined
through “the ordinary application of statutory law and case law * * *.” Accordingly, the
merits of this claim shall be determined under a standard of clear and convincing
evidence, i.e., “that measure or degree of proof which is more than a mere
‘preponderance of the evidence,’ but not to the extent of such certainty as is required
‘beyond a reasonable doubt’ in criminal cases, and which will produce in the mind of the
trier of facts a firm belief or conviction as to the facts sought to be established.” Cross v.
Ledford, 161 Ohio St. 469 (1954), paragraph three of the syllabus.
{¶8} For the reasons stated below, the special master concludes that the request
for all communication to or from all OSHP employees regarding the 2016 deployment
was properly denied as ambiguous and overly broad, but that DPS improperly denied
GP Media’s requests for the names of Troopers and documents outlining the assistance
agreement when it withheld responsive records in their entirety, instead of redacting
only items within the records that were exempt from disclosure.
Request No. 2: All Communication by Any OSHP Employee Regarding
Deployment
{¶9} To demonstrate a denial of access to public records in violation of
R.C. 149.43(B), an allegedly aggrieved person must show that they have made a proper
request for reasonably identified public records. “‘[I]t is the responsibility of the person
who wishes to inspect and/or copy records to identify with reasonable clarity the records
at issue.’ * * * ” State ex rel. Morgan v. New Lexington, 112 Ohio St. 3d 33, 2006-Ohio-
6365, ¶ 29. Determination of whether such requests are proper or improper is based on
Case No. 2017-00051-PQ -5- REPORT AND RECOMMENDATION
the facts and circumstances of each case. State ex rel. Zidonis v. Columbus State
Comm. College, 133 Ohio St. 3d 122, 2012-Ohio-4228, ¶ 26; State ex rel. O'Shea &
Assocs. Co., L.P.A. v. Cuyahoga Metro. Hous. Auth., 131 Ohio St. 3d 149, 2012-Ohio-
115, ¶ 21.
{¶10} An ambiguous request for research rather than specific records
undermines the legitimate interests of both the public office and the requester. A
request to find all communications “regarding” a topic, to or from any employee,
anywhere in the office, requires a needle-in-the-haystack search through the office’s
paper and electronic communications. It also requires judgment calls as to whether any
given communication – whether personal, tenuous, or duplicative – is “regarding” the
topic. If a public office attempts such a universal search, the time involved results in
delay for the requester. Nor can a public office assume that agreeing to “do the best it
can” with an ambiguous or overly broad request, instead of denying it, will shield it from
liability. See State ex rel. Bott Law Group, LLC v. Ohio Dep't of Natural Res., 10th Dist.
Franklin No. 12AP-448, 2013-Ohio-5219. The dilemma for the public office may not be
whether the public office can identify any records responsive to the request, but whether
the terms of the request permit it to reasonably identify all responsive records. Request
No. 2 poses a potentially impossible task to respond fully to its ambiguous and overly
broad terms.
{¶11} Ohio’s public records statutory and case law incentivize requesters and
public offices to cooperate in clarifying ambiguous and overly broad requests, with the
goal of finding the specific records that the requester seeks while minimizing the burden
on the public office. First, R.C. 149.43(B)(2) shields public offices by permitting them to
deny such a request, subject to revision:
(B)(2) * * * If a requester makes an ambiguous or overly broad request or has
difficulty in making a request for copies or inspection of public records under this
section such that the public office or the person responsible for the requested
public record cannot reasonably identify what public records are being requested,
the public office or the person responsible for the requested public record may
Case No. 2017-00051-PQ -6- REPORT AND RECOMMENDATION
deny the request but shall provide the requester with an opportunity to revise the
request by informing the requester of the manner in which records are
maintained by the public office and accessed in the ordinary course of the public
office's or person's duties.
In State ex rel. Shaughnessy v. Cleveland, Slip Opinion No. 2016-Ohio-8447, ¶ 10, the
Supreme Court cited examples of unreasonable requests to conduct research rather
than identifying the records sought:
“The Public Records Act does not compel a public office ‘to do research or to
identify records containing selected information.’ See State ex rel. Fant v. Tober,
8th Dist. Cuyahoga No. 63737, 1993 Ohio App. LEXIS 2591, 1993 WL 173743,
*1 (Apr. 28, 1993), aff'd, 68 Ohio St. 3d 117, 1993 Ohio 154, 623 N.E.2d 1202
(1993). See also Morgan, 121 Ohio St. 3d 600, 2009-Ohio-1901, 906 N.E.2d
1105, at ¶ 14-15 (request for “[a]ny and all email communications * * * which
reference * * * the ‘evidence-based model’ or education funding in general” was
overbroad) (first ellipsis sic); State ex rel. Thomas v. Ohio State Univ., 71 Ohio
St.3d 245, 246, 1994 Ohio 261, 643 N.E.2d 126 (1994) (noting denial of writ of
mandamus where request for records sought selected information ‘regarding or
related to’ any pro-animal-rights action group or individual), citing Fant.”
The request found improper in Shaughnessy required research through seven days of
police incident reports to identify only those reports containing injuries of interest to the
requester. Id.; accord State ex rel. Daugherty v. Mohr, 10th Dist. Franklin No. 11AP-5,
2011-Ohio-6453, ¶ 32-35 (“all * * * policies, emails, or memos regarding whether prison
officials are authorized to ‘triple cell’ inmates into segregation”); State ex rel. Dillery v.
Icsman, 92 Ohio St. 3d 312, 314, 750 N.E.2d 156 (2001) (request for “any and all
records generated * * * containing any reference whatsoever to Kelly Dillery”); State ex
rel. Glasgow v. Jones, 119 Ohio St. 3d 391, 2008-Ohio-4788, ¶ 16-19 (request for any
and all email sent or received for six months by one official); Zidonis, supra, ¶¶ 4, 28-32
(request for all email between two employees where the office did not maintain email
records so that they could be retrieved based on sender and recipient status); but see
State ex rel. Carr v. London Corr. Inst., 144 Ohio St. 3d 211, 2015-Ohio-2363, ¶ 25-29
(request for email between one person and one department for two months found not
Case No. 2017-00051-PQ -7- REPORT AND RECOMMENDATION
overly broad). A request for communications is also ambiguous or overly broad when it
identifies correspondents only as belonging to titles, groups or categories, for which
research is required to establish a correspondent’s membership. State ex rel. Oriana
House, Inc. v. Montgomery, 10th Dist. Franklin Nos. 04AP-492, 04AP-504, 2005-Ohio-
3377, ¶ 9, overturned on other grounds, 2005-Ohio-6763.
{¶12} GP Media requested “[a]ny and all communication issued or received by
any employee of the Ohio State Highway Patrol, regarding the deployment of these
officers.” This request falls squarely within the above case citations of ambiguous or
overly broad requests. The request is not limited to a mission file, or to communications
during a fixed time with North Dakota authorities. Instead, the request compels DPS to
perform a search through all communications – internal and external, paper and
electronic – “issued or received by any employee of the Ohio State Highway Patrol.”
The request gives no time frame, and does not describe OSHP records as they are
maintained and accessed. The research topic of desired communications is, “regarding
the deployment of these officers,” an ambiguous phrase that could encompass anything
from the deployment agreement (which GP Media did separately and specifically
request) to personal communications with family, press releases, or tangential mention
in remotely related records, with no clear limit. Without revision, the request fails to
enable DPS to identify all potentially responsive records, and only responsive records,
in a search through OSHP’s universe of communications. Oriana House, Id.;
Shaughnessy ¶ 10, citing Thomas. I conclude that Request No. 2 was improperly
ambiguous, overly broad, and requested a search or research rather than reasonably
identifying the records sought.
{¶13} After an office has denied a request that is ambiguous, overly broad, or
otherwise does not reasonably identify the records requested, it is then required to
“provide the requester with an opportunity to revise the request by informing the
requester of the manner in which records are maintained by the public office and
Case No. 2017-00051-PQ -8- REPORT AND RECOMMENDATION
accessed in the ordinary course of the public office’s or person’s duties.” R.C.
149.43(B)(2). The statute does not require the office to provide a comprehensive
records maintenance tutorial, or to rewrite the requester’s request for them, but the
office should convey some relevant information to support revision of the request.
Options include, but are not limited to, offering to discuss revision with the requester,
Morgan v. Strickland, supra, ¶ 14-20; Zidonis ¶ 40; Bott, supra, ¶ 52, a written
explanation of how records are maintained and accessed, and providing the requester
with a copy of the office’s records retention schedule. Zidonis ¶ 33-41. A requester’s
demonstrated ability to craft proper requests in the past, or the requester’s preexisting
knowledge of the responding office’s records practices, can show that the requester
already possesses information necessary to revise and narrow a request. Id. A public
office’s voluntary effort to provide some responsive records, notwithstanding denial of
the request, is considered favorably in evaluating its response to an ambiguous or
overly broad request. Id.; Morgan v. Strickland, ¶¶ 6, 14.
{¶14} After DPS exercised its right to deny Request No. 2 as ambiguous and
overly broad, it invited GP Media to revise the request, and repeatedly offered to
discuss the request to help GP Media clarify the records sought. DPS advised that it
did not have the capability to search department email using the terms given in Request
No. 2. (Casey letter of December 2, 2016.) DPS voluntarily provided GP Media with 39
pages of records previously produced to a different requester in response to a narrower
request. (Compl. Attachments, pp. 5-43.) DPS’s quotation of this narrower request
provided an example to GP Media of reasonable identification of email records, and the
court takes notice that requester was assisted in correspondence by experienced public
records legal counsel. I conclude that DPS sufficiently met its obligation to provide
GP Media with the opportunity and information to revise this request.
{¶15} GP Media has failed to show by clear and convincing evidence that
Request No. 2 was a proper request that reasonably identified the records sought. I
Case No. 2017-00051-PQ -9- REPORT AND RECOMMENDATION
therefore recommend that GP Media’s claim of denial of access with respect to Request
No. 2 be DENIED. The parties retain the ability to continue negotiating their respective
interests in obtaining and providing any records that GP Media seeks. In their
correspondence, DPS offered to discuss narrowing the request and ways to find actual
records. GP Media responded that it welcomed the opportunity to discuss the matter in
more detail. Such discussions are favored by the courts, and could profitably include
DPS referring GP Media to online records retention schedules relevant to the request,
and GP Media narrowing the request with this and other information provided through
discussion,1 Nat'l Fedn. of the Blind of Ohio v. Ohio Rehab. Servs. Comm'n, 10th Dist.
Franklin No. 09AP-1177, 2010-Ohio-3384, ¶ 39. The parties are encouraged to
cooperate going forward to achieve a mutually acceptable resolution of their interests.
Exceptions Asserted By DPS
{¶16} In asserting exceptions to an otherwise proper public records request, a
public office bears the burden of proof:
Exceptions to disclosure under the Public Records Act, R.C. 149.43, are strictly
construed against the public-records custodian, and the custodian has the
burden to establish the applicability of an exception. * * * A custodian does not
meet this burden if it has not proven that the requested records fall squarely
within the exception.
State ex rel. Cincinnati Enquirer v. Jones-Kelley, 118 Ohio St. 3d 81, 2008-Ohio-1770,
886 N.E.2d 206, ¶ 10. “If a public record contains information that is exempt from the
duty to permit public inspection or to copy the public record, the public office or the
person responsible for the public record shall make available all of the information within
the public record that is not exempt.” R.C. 149.43(B)(1); State ex rel. Rocker v.
Guernsey Cty. Sheriff’s Office, 126 Ohio St. 3d 224, 2010-Ohio-3288, ¶ 8-15; State ex
1 DPS did not direct GP Media to relevant record series titles, although OSHP records retention
schedules are available to the public online: http://apps.das.ohio.gov/rims/Search/PublicSearch.asp.
DPS agency code = DHS, and OSHP division code = OSHP. Accessed April 18, 2017.
Case No. 2017-00051-PQ -10- REPORT AND RECOMMENDATION
rel. Cincinnati Enquirer v. Ohio Dept. of Pub. Safety, Slip Opinion No. 2016-Ohio-7987,
¶ 49-50. Where a public office claims an exception based on risks that are not evident
within the records themselves, the office must provide more than conclusory statements
in affidavits to support that claim. State ex rel. Besser v. Ohio State Univ., 89 Ohio
St.3d 396, 400-404, 732 N.E.2d 373 (2000). More than bare allegations in an affidavit
are necessary to meet the government’s burden to show that a record would disclose
information that would endanger the life or physical safety of law enforcement
personnel, crime victims, witnesses or confidential information sources (under
analogous R.C. 149.43(A)(2)(d)). State ex rel. Nelson v. Cleveland P.D., 8th Dist.
Cuyahoga No. 62558, 1992 Ohio App. LEXIS 4134, *5-7; State ex rel. Jenkins v.
Cleveland, 82 Ohio App. 3d 770, 785, 613 N.E.2d 652 (8th Dist.1992).
{¶17} DPS does not dispute that Requests Nos. 1 (Trooper names and rank) and
3 (documentation of agreement to deploy) were proper requests for records
documenting official functions of the OSHP. DPS denied these requests by stating that
all responsive records were “security records” excepted from public disclosure. DPS
additionally responded that release of the names/ranks and EMAC Agreement would
violate the Troopers’ 14th Amendment right to privacy. Requests Nos. 1 and 3 will be
analyzed based on each exception asserted. However, the REQ-A submitted under
seal does not contain the rank of any Trooper listed therein and therefore disclosure of
rank will not be included in the analysis of these requests.
Request No. 1: Names of Troopers
Fourteenth Amendment Right to Privacy
{¶18} DPS asserts that the Troopers’ names are excepted from release because
disclosure would violate their constitutional right of privacy under the Fourteenth
Amendment. Upon careful review, the evidence in this case supports the privacy
exception only to the extent of withholding the Troopers’ names during deployment.
The evidence does not justify the continuing use of the exception following the
Troopers’ return to Ohio.
Case No. 2017-00051-PQ -11- REPORT AND RECOMMENDATION
{¶19} Law enforcement officers have a fundamental constitutional interest in
preventing the release of private information when disclosure would create a substantial
risk of serious bodily harm or death from a perceived likely threat. Kallstrom v.
Columbus, 136 F.3d 1055, 1064 (6th Cir.1998) (Kallstrom I). Any such disclosure by
the state should be measured under strict scrutiny. Where state action infringes upon a
fundamental right, such action will be upheld under the substantive due process
component of the Fourteenth Amendment only where the governmental action furthers
a compelling state interest, and is narrowly drawn to further that state interest. Id.; State
ex rel. Enquirer v. Craig, 132 Ohio St. 3d 68, 2012-Ohio-1999, ¶ 14. The fact that the
requesting party does not pose a threat is irrelevant to a public office’s allegation that
released information “may fall into the wrong hands.” Id. ¶ 19. Records found to be
protected under the Fourteenth Amendment privacy right are “[r]ecords the release of
which is prohibited by state or federal law,” and therefore excepted from the definition of
“public record” by R.C. 149.43(A)(1)(v). Id. ¶ 13.
{¶20} OSHP Lieutenant Colonel Teaford received pre-deployment reports of
threats to North Dakota and other-state law enforcement personnel assisting with the
DAPL protest response. He related briefing by the OSHP Intelligence Unit of incidents
and threats of assault and vandalism at the North Dakota site against some officers and
equipment. (Ex. A ¶¶ 14-20, 22, 27, 33; see also Ex. B ¶ 3-9 and attached slides.)
While this evidence established that law enforcement officers were exposed to a risk of
physical harm while in contact with protesters, no evidence is presented that a Trooper
was more likely to be physically attacked, or be exposed to greater physical harm,
simply because their name was known to a person facing them at the site. However,
Lieutenant Colonel Teaford further stated that he had been informed that Pipeline
protesters or their supporters engaged in “doxing” some law enforcement officers
serving at the DAPL site. “Doxing” involves posting a known person’s identity and other
personal information online with the intent to intimidate, harass or cause physical or
Case No. 2017-00051-PQ -12- REPORT AND RECOMMENDATION
financial harm to the persons identified, and to their family members. (Response at
pp. 3, 14-15; Ex. A, ¶ 18; Ex. B, ¶ 4, Ex. C ¶ 4-11.) Although much of the text in the
slides attached to Ex. B is difficult to read, it appears that the doxing therein relates
substantially if not entirely to North Dakota law enforcement personnel. (Ex. B, ¶ 4-9
and attached slides; Ex. C,¶¶ 5, 7-9, 11-12.) DPS does not document any incident
where an OSHP Trooper has been doxed, or where other out-of-state law enforcement
personnel have been doxed. However, the reports and briefings received by the OSHP
in advance of deployment supported a reasonable belief that release of Trooper
identities while they were a physical focus of attention for protesters at the DAPL site
posed a substantial risk of retaliatory harassment or serious physical harm to Troopers’
families, through doxing. (Ex. A ¶ 17-18.) The withholding of names in response to
GP Media’s November 3, 2016 request, like the removal of name bars from the
Troopers’ uniforms, (Ex. A ¶ 19.), was designed to reduce that perceived risk.
{¶21} However, once the risk of physical harm or non-physical retaliation has
receded, a public office may be obligated to produce information previously withheld
under the Fourteenth Amendment right of privacy. State ex rel. Quolke v. Strongsville
City School Dist. Bd. of Edn., 142 Ohio St. 3d 509, 2015-Ohio-1083, ¶ 25-31. Quolke
upheld a finding that,
“during the strike, the board reasonably concluded that disclosure of the names
and other personal information about the replacement teachers would expose
them to substantial risk of serious harm. However, in general, a court is to
consider the facts and circumstances existing at the time that it makes its
determination on a writ of mandamus, not at some earlier time. State ex rel.
Pressley v. Indus. Comm., 11 Ohio St. 2d 141, 162, 228 N.E.2d 631 (1967).”
Id. ¶ 28-29. The Court affirmed that records showing names and identification numbers
of replacement teachers employed during a teachers’ strike were no longer exempt from
disclosure, where there was no evidence that once the strike was over there was any
remaining threat to them. Id. ¶ 25-31. An assertion of ongoing or future risk must be
supported by relevant evidence specific to that time period. “[W]ithout a clear
Case No. 2017-00051-PQ -13- REPORT AND RECOMMENDATION
development of the factual circumstances that would accompany any future release of
personal information * * *, any finding regarding future risk to the personal safety of the
officers and their families would be speculative.” Kallstrom I at 1068. Notably, upon
remand from Kallstrom I the federal district court found that Officer Kallstrom and her
fellow plaintiffs had “failed to provide any potentially admissible evidence to suggest that
the release of any information contained in the three personnel files may place any of
the plaintiffs at any risk of serious bodily harm. Nor have they identified a current
‘perceived likely threat.’” Kallstrom v. Columbus, 165 F. Supp. 2d 686, 695 (S.D.Ohio
2001) (Kallstrom II).
{¶22} Only one case cited by DPS upheld withholding the names of law
enforcement officers.2 The other cases cited fail to support the indefinite withholding
of officer personal information based on conclusory assertions of risk. In State
ex rel. Keller v. Cox, 85 Ohio St. 3d 279, 707 N.E.2d 931 (1999), a request identified
Detective Paul Reece by name, and sought access to Reece’s personnel and internal
affairs records. Reece’s affidavit stated that the criminal defendant on whose behalf the
request was made, and a person the defendant had contacted, had threatened Reece
and his wife. Although the Supreme Court found that the affidavit could not be
considered for purposes of the dispositive Civ.R. 12(B)(6) motion, it upheld exemption
of Reece’s personnel file based on Kallstrom I, finding that,
“files that contain the names of the officers’ children, spouses, parents, home
addresses, telephone numbers, beneficiaries, medical information, and the like
should not be available to a defendant who might use the information to achieve
nefarious ends.”
Id. p. 282. Keller applied Kallstrom I to withhold family and residence information, but
not Keller’s name. A later federal decision clarified that Kallstrom I “did not create a
2 DPS states that Kallstrom I and Keller both held that “the officer’s name” could be withheld.
(Response pp. 11,13) However, neither case contains such a holding. DPS elsewhere correctly states
that the officer’s identity was already known in Keller (Id. p. 13.), and there is no indication in Kallstrom I
that officers’ names were either withheld, or held by the court to be subject to Fourteenth Amendment
privacy.
Case No. 2017-00051-PQ -14- REPORT AND RECOMMENDATION
broad right protecting plaintiffs’ personal information. Rather, Kallstrom created a
narrowly tailored right, limited to circumstances where the information disclosed was
particularly sensitive and the persons to whom it was disclosed were particularly
dangerous vis-à-vis the plaintiffs.” Barber v. Overton, 496 F.3d 449, 456 (6th Cir. 2007)
(release of correctional officers’ social security numbers and birth dates to an inmate did
not violate the officers’ due process rights).
{¶23} In the one cited case where law enforcement officers’ names were withheld
under the constitutional privacy exemption, the circumstances were exceptional.
Cincinnati police officers had engaged in a gunfight with an outlaw motorcycle gang, in
which the gang’s national “enforcer” was killed, and two officers were wounded. Craig,
132 Ohio St. 3d 68, 2012-Ohio-1999, ¶¶ 2-4. The police chief received information that
there was a good possibility the gang would target Cincinnati police in retaliation,
especially those involved in the gunfight, “and that the threat of retaliation for the death
of the national enforcer could last indefinitely.” Id. ¶ 5. The Chief testified that,
“[B]ased on his ‘historic knowledge,’ it is not unusual for an outlaw motorcycle
gang to seek revenge against the police when one of its members is shot and
killed by the police. Both officers who had been wounded had themselves
returned fire, and both were concerned that if the Iron Horsemen discovered their
identities, the gang would retaliate by attacking them or members of their
families.”
Id. In the Chief’s deposition, filed under seal, he provided “confidential information
confirming the existence of threatened retaliation against the wounded officers.” Id.¶ 22.
The Supreme Court held that the identifying information of the wounded police officers
was excepted from disclosure, based on credible evidence of a perceived likely threat
that the motorcycle gang would retaliate against the wounded officers for killing the
gang’s national enforcer. Id. ¶ 20-23. DPS has provided no comparable evidence in this
case of violent incidents involving Troopers from which to anticipate individual
retaliation; no threat of physical harm or doxing of any individual Ohio Trooper before or
since their return; no evidence that earlier, general threats of retaliation could last
Case No. 2017-00051-PQ -15- REPORT AND RECOMMENDATION
indefinitely; and no affidavit from any Trooper in support of nondisclosure of their
identity. State ex rel. Cincinnati Enquirer v. Streicher, 1st Dist. Hamilton No. C-100820,
2011-Ohio-4498, ¶ 28-30; Craig ¶¶ 5, 20.
{¶24} Separate from any alleged future risk of serious bodily harm or death, DPS
asserts that “Troopers also have a right to protect themselves against ‘doxing’ and
perceived threats that are not physical in nature.” (Response p. 14.) DPS cites State
ex rel. Beacon Journal Publishing Co. v. Akron, 70 Ohio St. 3d 605, 612, 640 N.E.2d
164, which held only that city employees have a constitutional privacy right against
unchecked release of their Social Security numbers, due to the risk of identity theft.
Notably, other personal information in that case, including “[e]mployees’ addresses,
telephone numbers, salaries, level of education, and birth dates, among other things,
were all provided” without objection from the employees. Id. pp. 605, 610-611. The
Quolke Court considered Beacon Journal v. Akron, and threats of nonphysical harm like
those that DPS asserts on behalf of the Troopers, but did not find them persuasive.
Quolke ¶¶ 26-27, 30. Finally, the federal Sixth Circuit has limited the scope of
informational privacy rights under the Fourteenth Amendment, and determined that a
mere risk that information disclosure could result in identity theft or damage to credit
rating does not implicate a fundamental constitutional interest. “[I]dentity theft
constitutes a serious personal invasion, [but] it simply does not implicate the well-
established right to personal security as contemplated by this court in Kallstrom.”
Lambert v. Hartman, 517 F.3d 433, 444-445 (6th Cir.2008). No Ohio case has created
a general fundamental constitutional interest in the privacy of one’s name. But see
State ex rel. McCleary v. Roberts, 88 Ohio St. 3d 365, 372, 725 N.E.2d 1144 (2000)
(database of photographs, names, addresses and other personal information of
uniquely vulnerable juvenile customers found subject to Fourteenth Amendment privacy
right).
Case No. 2017-00051-PQ -16- REPORT AND RECOMMENDATION
{¶25} Ohio does have a robust statutory framework of exceptions for peace
officers’ and their families’ “personal information,” but the names of peace officers are
not protected. To the contrary, the Revised Code expressly requires that every law
enforcement agency, as a public office,
“shall maintain a database or a list that includes the name and date of birth of all
public officials and employees elected to or employed by that public office. The
database or list is a public record and shall be made available upon a request
made pursuant to section 149.43 of the Revised Code.”
R.C. 149.434(A). Statutory provisions for confidentiality of peace officer3 personal
information include: R.C. 4501.271 (upon request, the Bureau of Motor Vehicles shall
not disclose a peace officer’s residence address, or shall provide a business address on
his or her driver’s license, or both); R.C. 149.45(D) (upon request, public offices other
than county auditors must redact the address of the requesting peace officer from any
record it makes available to the general public on the internet); R.C. 319.28(B) (upon
request, the county auditor must remove the name, and replace it with the initials, of a
peace officer from any record made available to the general public on the internet or a
publicly accessible database and the general tax list of real and public utility property
and the general duplicate of real and public utility property, as the name of the person
that appears on the deed); R.C. 2921.24 and 2921.25 (no officer, court or employee of a
law enforcement agency shall disclose, without a determination of good cause, the
home address of a peace officer who is a witness or arresting officer in a pending
criminal case); R.C. 149.43(A)(1)(h) and (A)(2)(d) (exception for records pertaining to a
particular law enforcement matter, the release of which would create a high probability
of endangering the life or physical safety of law enforcement personnel). In addition,
R.C. 149.43(A)(1)(p) and (A)(7) exempt release of a peace officer’s personal residence
address, social security and banking numbers, benefit information, and similar
3Each of the statutes cited in this paragraph uses or creates a definition of “peace officer” that
includes OSHP Troopers.
Case No. 2017-00051-PQ -17- REPORT AND RECOMMENDATION
information regarding the peace officer’s family members, as well as photographs of
peace officers who may engage in undercover assignments. Of these exceptions, only
R.C. 149.43(A)(2)(d) implies authority to withhold a peace officer’s name, under specific
circumstances within a law enforcement investigation. By enumerating public records
exceptions for specific peace officer information, the General Assembly has already
weighed and balanced the competing public policy considerations between the public’s
right to know that information generally, and the potential harm, inconvenience or
burden imposed on the agency by disclosure. State ex rel. James v. Ohio State Univ.,
70 Ohio St. 3d 168, 172, 637 NE.2d 911 (1994). Compare State ex rel. Vindicator v.
Wolff, 132 Ohio St. 3d 481, 2012-Ohio-3328, ¶ 32-37 (alternative access to the same
records, and other protections for the rights sought to be defended, counter plaintiffs’
demand for restricted access to records under Sup.R. 45(E)). Thus, while officers’
residential and familial records have specific protections, statutory and constitutional law
are far more restrained when it comes to concealing the names of law enforcement
officers.
{¶26} The policy underlying the Public Records Act is that “open government
serves the public interest and our democratic system.” State ex rel. Dann v. Taft, 109
Ohio St. 3d 364, 2006-Ohio-1825, 848 N.E.2d 472, ¶ 20. “[O]ne of the salutary purposes
of the Public Records Law is to ensure accountability of government to those being
governed.” State ex rel. Strothers v. Wertheim, 80 Ohio St. 3d 155, 158, 684 N.E.2d
1239, 1242 (1997). Therefore, R.C. 149.43 must be construed “liberally in favor of
broad access, and any doubt is resolved in favor of disclosure of public records.” State
ex rel. Cincinnati Enquirer v. Hamilton Cty., 75 Ohio St. 3d 374, 376, 662 N.E.2d 334
(1996). Exceptions to disclosure must be strictly construed. State ex rel. Thomas v.
Ohio State Univ., 71 Ohio St. 3d 245, 247, 643 N.E.2d 126 (1994). This applies to any
exception, including the constitutional right to personal security and bodily integrity.
Social workers, patrol officers, strikebreaking employees, judicial officers, prosecutors,
Case No. 2017-00051-PQ -18- REPORT AND RECOMMENDATION
health and zoning inspectors, politicians, corrections officers, and scores of other public
employees can be subject to harassment and threats of serious physical harm in the
course of their duties, yet their names are available to the public. As the federal district
court concluded in releasing information regarding the Kallstrom officers: “The Court
appreciates the need to protect the health and safety of law enforcement officials and
their families. But the health and safety of this democracy depend on a press that can
function without additional burdens being imposed based on its ability to publish
information concerning government activities.” Kallstrom v. Columbus, 165 F. Supp. 2d
686, 703 (S.D. Ohio 2001).
{¶27} The risk that was perceived during deployment has now receded. DPS
presents no evidence of retaliatory pursuit of the Troopers or their families. At the
present remove in time and distance from the North Dakota protesters, DPS has not
provided the required “clear development of the factual circumstances that would
accompany any future release” of the Troopers’ names. Kallstrom I, p. 1068. The bare
allegations of continuing physical risk in the response and in Exhibits A-C are
speculative and non-specific. An attenuated and receding risk of online harassment is
not the kind of threat that justifies indefinitely concealing the names of law enforcement
officers who exercised plenary police power during a public, uniformed mission. Even
under strict scrutiny, the evidence does not support a finding that disclosure of the
Trooper names would pose a current substantial risk of serious bodily harm or death to
the Troopers or their families from any perceived likely threat, and DPS has therefore
failed to prove that the Fourteenth Amendment right of privacy applies to the names of
the Troopers at the present time.4
4 Even had the requisite level of future threat been shown, release would still satisfy the
remainder of the constitutional balancing test. The courts assume that the interests served by allowing
public access to public records rise to the level of a compelling state interest, Kallstrom I. at 1065; State
ex rel. Cincinnati Enquirer v. Streicher, 1st Dist. Hamilton No. C-100820, 2011-Ohio-4498, ¶ 31. And the
request for names and the agreement was narrowly drawn to serve the interest of public access, as it
requested none of the residence or family information found problematic in Kallstrom I. Unlike the
Case No. 2017-00051-PQ -19- REPORT AND RECOMMENDATION
Request No. 1: Names of Troopers
Records Directly Used to Protect Against Attack, R.C. 149.433(A)(1)
{¶28} DPS separately asserts that the Troopers’ names are excepted from
release pursuant to R.C. 149.433(A)(1) and (B)(1):
(A) As used in this section: * * * ‘Security record’ means any of the following:
(1) A record that contains information directly used for protecting or maintaining
the security of a public office against attack, interference, or sabotage.
(B)(1) A record kept by a public office that is a security record is not a public
record under section 149.43 of the Revised Code and is not subject to mandatory
release or disclosure under that section.
“Public office” as used in the statute includes officials and employees. State ex rel.
Plunderbund Media, L.L.C., v. Born, 141 Ohio St. 3d 422, 2014-Ohio-3679, ¶ 20.
{¶29} As detailed in the Fourteenth Amendment analysis, DPS provides no
evidence that the Troopers were any more subject to physical attack or sabotage at the
DPS site whether protesters knew their names, or did not. The evidence shows that the
predicted risk of “doxing” perceived by the OSHP in advance of and during deployment
justified withholding Trooper names to protect them during deployment from the
“interference” of threats against their families. The evidence does not justify the
continuing use of this exception following the Troopers’ return to Ohio.
{¶30} In Plunderbund, supra, ¶¶ 3-7, 19-31, DPS records of the investigation of
direct threats against the governor were found to meet the definition of “security
records” in R.C. 149.433(A)(3)(a) – recodified in 2016 as R.C. 149.433(A)(1), 2016
Sub.S.B. No. 321. However, like the federal court in Kallstrom I, the Plunderbund Court
cautioned DPS specifically, and agencies generally, that the exception must be proven
in each case:
This is not to say that all records involving criminal activity in or near a public
building or concerning a public office or official are automatically ‘security
request in Craig, the request for Trooper names was not mitigated by any release of other enlightening
mission information from the REQ-A. Craig ¶ 21.
Case No. 2017-00051-PQ -20- REPORT AND RECOMMENDATION
records.’ The department and other agencies of state government cannot simply
label a criminal or safety record a “security record” and preclude it from release
under the public-records law, without showing that it falls within the definition in
R.C. 149.433.
Id. ¶29. Nor should this exception be asserted beyond the person(s) demonstrably at
risk, or after the risk has abated. In State ex rel. Ohio Republican Party v. FitzGerald,
145 Ohio St. 3d 92, 2015-Ohio-5056, the county withheld as “security records” key-card-
swipe data for the one employee against whom verified threats had been received, but
released the same data for employees who had not received threats. Id. ¶¶ 6-8, 24.
The Court determined that when the threatened employee left his position, the key-card-
swipe data were no longer security records, and ordered their release. Id. ¶¶ 27-28, 30.
{¶31} In contrast with the records withheld in Plunderbund and FitzGerald
involving direct threats against particular officials, DPS shows no direct threats made
against these Troopers either individually or as a group. However, for the same
reasons discussed in connection with the Fourteenth Amendment Right to Privacy, I find
that withholding the names in response to GP Media’s November 3, 2016 request, like
the removal of name bars from the Troopers’ uniforms, was designed to reduce a
perceived substantial risk of online harassment including physical threats toward
Troopers’ families, threatening “interference” with the Troopers’ mission. (Ex. A, ¶¶ 17-
19, 29). The list of names therefore qualified as “security records” during deployment.
{¶32} An initial correct withholding of a record as a security record under
R.C. 149.433(A)(1) does not establish the exception in perpetuity. The courts must take
into account that violence, harassment, and online threats associated with a particular
event often recede as a function of time and distance. In the analogous Quolke case,
the facts justifying withholding the names of replacement teachers during a strike
included protesters chanting, jeering, and cursing; acts of harassment and intimidation;
taking and posting photographs online with derogatory and offensive comments; posting
of signs in neighborhoods where some replacement teachers lived identifying them by
Case No. 2017-00051-PQ -21- REPORT AND RECOMMENDATION
name and disclosing their addresses; violence against vehicles, and using vehicles; and
threats that consequences would follow replacement teachers “throughout their
careers.” Id. ¶¶ 5-9, 29, 30, However, the Court found that by the time the action was
filed:
“the board had presented little or no evidence that once the strike was over, there
was any remaining threat to the replacement teachers. That decision was issued
“taking into consideration the facts and circumstances as they exist[ed] * * *,
several months after the strike.”
Id. ¶ 30. Five months have passed since the Troopers’ return to Ohio from North
Dakota. Further, unlike the replacement teachers in Quolke, the Troopers do not reside
near the protest site, or work in the same profession as the protesters. Against this
separation in time and distance, DPS presents little or no evidence of credible current
threats directed against the Troopers or their families. DPS has not shown that actual
doxing of Ohio Troopers has occurred, either collectively or individually. The evidence
fails to support any continuing or new threat of physical harm following the return of the
Troopers to Ohio. The bare allegations of continuing risk are non-specific and
speculative, and do not establish withholding of names as “directly * * * protecting or
maintaining the security of [these Troopers] against attack, interference, or sabotage.”
The evidence does not establish that release of the list of names at this time threatens a
substantial risk of future physical or even nonphysical harm.
{¶33} I find that during the DAPL deployment DPS officials were permitted5 to
withhold the list of Trooper names pursuant to R.C. 149.433(A)(1), based on reports
that law enforcement officers and their families would be targeted for retaliation through
5 The wording of R.C. 149.433(B) (“a security record is not a public record under section 149.43”)
establishes only a discretionary exception to the Public Records Act, and does not prohibit release of
security records. 2000 Ohio Op. Att’y Gen. No. 021 (“R.C. 149.43 does not expressly prohibit the
disclosure of items that are excluded from the definition of public records, but merely provides that their
disclosure is not mandated.”)
Case No. 2017-00051-PQ -22- REPORT AND RECOMMENDATION
doxing if their identities were known. However, the evidence does not justify the
continuing use of the exception to withhold Trooper names following their return to Ohio.
Request No. 3: EMAC Agreement
Fourteenth Amendment Right to Privacy
{¶34} DPS parenthetically asserts that other identifying information in the EMAC
agreement would violate the Troopers’ constitutionally-protected privacy rights
to personal security and bodily integrity. (Response p. 11.) In support, DPS states
that “information such as hourly pay rate that could easily lead to the Trooper’s
identities * * *.” (Response p. 14.) Lieutenant Colonel Teaford suggests how hourly pay
rate could be traced to a Trooper’s name, and adds the item, “employee ID,” as
information that could disclose identity. (Ex. A ¶ 27.)
{¶35} Based on the same evidence and reasoning applied to the Troopers’
names, I find that the employee ID numbers contained in the EMAC Agreement were
subject to withholding under the Fourteenth Amendment right to privacy during the
Troopers’ deployment to North Dakota, but not at the present time. However, the
argument that a person could use a known hourly pay rate to research a particular
employee’s identity is too attenuated to make pay rate release a “disclosure of identity.”
Twenty-one of the thirty-seven hourly rates in the REQ-A appear beside more than one
name, even before considering their likely duplications with over fifteen hundred other
Troopers employed by the OSHP. In the absence of any direct risk shown, disclosure
of financial and time records violates neither equal protection nor substantive due
process guarantees. State ex rel. Beacon Journal Publ. Co. v. Bodiker, 134 Ohio
App.3d 415, 429-430, 731 N.E.2d 245 (10th Dist. 1999). I conclude that the Fourteenth
Amendment right of privacy did not apply to the Troopers’ pay rates listed in the EMAC
Agreement at any time during or following deployment.
Request No. 3: EMAC Agreement
Records Directly Used to Protect Against Attack, R.C. 149.433(A)(1)
Case No. 2017-00051-PQ -23- REPORT AND RECOMMENDATION
{¶36} DPS argues that the entire EMAC Agreement meets the definition of
“security record” set out in R.C. 149.433(A)(1):
(1) Any record that contains information directly used for protecting or
maintaining the security of a public office against attack, interference, or
sabotage;
DPS asserts that the withholding of “deployment plans,” “vulnerability assessments,”
and “tactical response plans” allegedly contained in the form is a direct use to protect or
maintain the security of the Troopers. (Response at pp. 8-11.) However, most of the
sections in the REQ-A form contain only administrative and billing information. A limited
number of records in a few sections do meet the definition of “security records,” and
may be redacted.
{¶37} As noted in the application of this exception to the list of Trooper names,
the Supreme Court has cautioned DPS and other agencies of state government that
simply labeling records involving criminal activity concerning a public office or official as
“security records” is insufficient, without showing that it falls squarely within the
definition in R.C. 149.433. Plunderbund, supra, ¶¶ 19-31. In State ex rel. Miller v.
Pinkney, Slip Opinion No. 2017-Ohio-1335, a sheriff’s office broadly labeled as “security
records” all offense and incident reports in which the county executive was identified as
a reportee, complainant, or victim. Upon examination in camera, the Supreme Court
determined that nine withheld reports “are not security records and are subject to
release with the redaction of exempt information.” Id. ¶ 1-4, Appendix. Regarding
security of government equipment, see State ex rel. Data Trace Info. Servs., L.L.C. v.
Cuyahoga Cty. Fiscal Officer, 131 Ohio St. 3d 255, 2012-Ohio-753, 963 N.E.2d 1288,
¶ 65 (CDs documenting procedure and operation of recorder’s office to make backup
copies of instruments recorded are not “security records.”).
{¶38} DPS alleges that the REQ-A contains the OSHP’s entire deployment plan
for the North Dakota Pipeline protest. (Response p. 9; Ex. A ¶ 24.) In identifying
Case No. 2017-00051-PQ -24- REPORT AND RECOMMENDATION
“information directly used to protect” the Troopers from attack, interference, and
sabotage, DPS refers to “operational tactics used,” “future response plans,” plans of “an
operational response for each day,” “a law enforcement response plan to violent
protests and criminal acts,” “specific and unique vulnerability assessments,” and
“specific and unique response plans.” (Response pp. 3-4, 8-9) However, upon review
of the REQ-A, which was completed and signed prior to deployment, I find that it
contains no “plans” in the sense of detailed proposals for operational actions and
responses. Instead, both the response, and the affidavit of Lieutenant Colonel Teaford,
show that any such plans were created as part of briefings that took place after the
REQ-A was completed. (Response ¶ 3-4.) For example, in his affidavit, Lieutenant
Colonel Teaford warns against release of briefings and updates that occurred during
deployment, such as,
“daily email briefing from one of the commanders, which included updates on
North Dakota authorities’ written daily intelligence records. In my review of these
records, I can confirm that the documents contained known threats to law
enforcement, security vulnerabilities, and tactical response plans for each day.”
(Ex. A ¶ 20.),
“One of the commanders also updated me on the previous day’s activities,
including the Troopers’ tactical responses to violent protests. These response
plans were unique * * *. (Ex. A ¶ 21.),
“The information from these briefings was used each day by law enforcement to
prepare for the day’s protest response * * *.” (Ex. A ¶ 22.), and
“we would * * * likely use the same operational response plans set forth in the
prior daily email briefings.” (Ex. A ¶ 24.).
These extended references to post-deployment briefings, North Dakota daily
intelligence records, the “plans” developed during deployment, as well as any security
opinions to the extent that they rely on these references (e.g. Ex. A ¶¶ 25, 27-32), are
irrelevant in evaluating the actual contents of the REQ-A.
Case No. 2017-00051-PQ -25- REPORT AND RECOMMENDATION
{¶39} In the REQ-A form, only the lists of equipment promised by the OSHP, and
prospective disclosure of the staging area, appear to meet the definition of “security
record” in R.C. 149.433(A)(1). The evidence does not establish any direct relationship
between withholding the administrative and billing information that constitute the rest of
the contents of the REQ-A, and the security of Troopers from attack, interference or
sabotage. Regarding the similarly worded exception for trial preparation records,
Time sheets and billing records generally can be categorized as “routine office
records” that fall outside the definition of “trial preparation records.” See State ex
rel. Carpenter v. Tubbs Jones (1995), 72 Ohio St. 3d 579, 580, 651 N.E.2d 993.
Bodiker, supra at 427.
{¶40} Based on the above, I find that only the records within the REQ-A
regarding equipment and staging area are subject to R.C. 149.433(A)(1), and the
remainder are routine administrative and billing records that do not meet the definition of
“security records.” Appended to this report is an Attachment - Recommended
Redactions To REQ-A in which the sections and fields of the EMAC Agreement/REQ-A
are listed beside specific recommendations as to what information is subject to
withholding under the “security record” exception in R.C. 149.433(A)(1).
{¶41} DPS asserts that the “security record” exemption for these records
continues after the Troopers’ return, alleging risk to future officers through disclosure of
the REQ-A “operational response plans and briefings,” and operational tactics used.
(Response at p. 10-11.) However, this exception does not automatically apply in
perpetuity, and requires proof of continuing application. In Plunderbund, the records of
investigations of threats against the governor were found still to be “security records,”
regardless of investigation status or the passage of time, but in Plunderbund, DPS
provided much more detailed testimony connecting the disclosure of that information to
future risks to the governor and his successors. Plunderbund. ¶ 24-31. In FitzGerald,
documents were found no longer security records once the county executive left office.
Id. ¶¶ 27-28, 30. See Pinkney, Slip Opinion No. 2017-Ohio-1335, Appendix (documents
Case No. 2017-00051-PQ -26- REPORT AND RECOMMENDATION
appear to contain innocuous information, unfounded threats, and/or were several years
old). The evidence in this case supports withholding only the lists of the OSHP
equipment promised, based on testimony that the same lists would be used in future
similar operations. (Ex. A ¶¶ 13, 29-32.) After deployment and return, the location of
the initial staging area in North Dakota is only historical information and no longer meets
the definition of a “security record.”
{¶42} Applying R.C. 149.43(A)(2)(d), an analogous exception involving officer
safety, the Eighth District Court of Appeals found that prospective release of a “strike
plan” that would reveal specific procedures, plans and techniques at a time of potential
civic unrest “is precisely the kind of ‘information that would endanger the life or physical
safety of law enforcement personnel * * *.’’ State ex rel. Cleveland Police Patrolmen’s
Ass’n v. Cleveland, 122 Ohio App. 3d 696, 699-701 (8th Dist.1997). However, an
attempted retrospective application of R.C. 149.43(A)(2)(d) was rebuffed in Conley v.
Corr. Reception Ctr., 141 Ohio App. 3d 412, 414-416, 751 N.E.2d 528 (4th Dist.2001)
where an inmate made a request for work schedules and photographs of corrections
officers who had worked in his segregation unit on two past dates, with the purpose of
identifying particular officers who he claimed had battered him. The appellate court
overruled the trial court’s dismissal of the claim, holding that the correctional institution
was required to present “an affirmative showing that disclosure would endanger the
officer.” Id. p. 416. The court observed that even granting that the inmate had a motive
to attempt to harm his alleged assailants was not enough to establish a high probability
of danger as a matter of law, especially since the inmate had been transferred to
another institution. The court noted that “[a] different case would be presented if the
[inmate]’s request involved future work schedules, or similar information which could be
used to discern specific law enforcement tactics or techniques on a given day and
location.” Id. p. 417. The level of proof required by these cases is not present in this
case.
Case No. 2017-00051-PQ -27- REPORT AND RECOMMENDATION
{¶43} DPS also asserts that the “security record” portions of the REQ-A may be
reused in hypothetical future OSHP deployments to North Dakota or in preparing OSHP
requests for assistance, and that disclosing the current REQ-A may put other states at
risk by revealing the specific request information from North Dakota. However, the
REQ-A does not contain either operational response plans or briefings, and the
affidavits provide only conclusory opinions and factually contradicted assertions. For
example, DPS asserts that dissemination of the REQ-A would threaten the security of
out-of-state law enforcement:
[T]he EMAC agreement in the present case contains information relevant to
North Dakota’s requests to other participating states. Therefore, some of the
information contained within the EMAC agreement protects not just the Ohio
Troopers from attack, interference, and sabotage, but all law enforcement who
have assisted in North Dakota.
(Response p. 8-9.) DPS further asserts that withholding the REQ-A directly protects
what are expected to be similarly worded requests by Ohio in requests for assistance:
Should Ohio need to enact the EMAC to request law enforcement assistance to
the State, Ohio’s request and subsequent EMAC agreement with out-of-state law
enforcement agencies would undoubtedly look similar to North Dakota’s EMAC
agreement here. [citing Ex. A p. 3]
(Response p. 10.) DPS argues in effect that release of an EMAC agreement by any
compact state poses this risk:
In the wrong hands the information in the EMAC agreement could be used to
thwart law enforcement’s efforts to maintain peaceful protests, or to compromise
the personal safety of law enforcement personnel, thereby placing these officers
in significant danger. [citing Ex. A p.4]
However, multiple law enforcement agencies from at least six states that have assisted
North Dakota with the DAPL protests have released redacted or full EMAC requests,
agreements and in one case an after-action report in response to public records
Case No. 2017-00051-PQ -28- REPORT AND RECOMMENDATION
requests.6 Some of the web sites in footnote 6 are government sites, and the EMAC
records reproduced in the remainder must logically be available on the public record of
their disclosing agencies to any future requests. The assertion that Ohio’s copy of the
REQ-A must be withheld to conceal information because it is common to North Dakota’s
requests to other states, and to future Ohio requests and agreements, is contradicted
when similar or identical information is publicly available from other sources. “The
Supreme Court has found that ‘the interests in privacy fade when the information
involved already appears on the public record.’ Cox Broad. Corp. v. Cohn, 420 U.S.
469, 494-95, 43 L. Ed. 2d 328, 95 S. Ct. 1029 (1975).” Kallstrom II p. 695. Accord,
Besser v. Ohio State Univ., 89 Ohio St. 3d 396, 403, 732 N.E.2d 373 (2000) (email
containing information readily ascertainable from other sources is not “trade secret”);
State ex rel. Jenkins v. Cleveland, 82 Ohio App. 3d 770, 785, 613 N.E.2d 652
(8th Dist.1992) (some of the information that would allegedly endanger life or physical
safety “is available through other public records”).
{¶44} Conclusory allegations of future risk of serious bodily harm are not
sufficient alone. The evidence in this case supports the conclusion that the danger of
retaliation or physical harm to the Troopers has receded, and that DPS is now obligated
6 Released with redactions –Indiana EMAC Mission Order Authorization Form:
https://ia801904.us.archive.org/5/items/IndianaEMACDAPL/Public%20Records%20Request%20EMAC%
20DAPL.pdf; Louisiana (2 missions: Lafourche and St. Charles) REQ-A:
https://archive.org/stream/EMACLADAPL/EMAC-
%20Lafourche%20%28Redacted%29#page/n0/mode/2up http://www.publicrecordmedia.org/wp-
content/uploads/2017/MNDPS2016_pd_006.pdf (click “Full text of ‘EMAC DAPL Louisana [sic]
Agreements,’” or “See other formats.”; Minnesota Hennepin Co. Sheriff’s Office Mission Order
Authorization Form: http://www.publicrecordmedia.org/wp-
content/uploads/2017/MNDPS2016_pd_003.pdf; Minnesota REQ-A:
http://www.publicrecordmedia.org/wp-content/uploads/2017/MNDPS2016_pd_006.pdf; Minnesota Anoka
County Sheriff’s Office Intergovernmental Agreement: http://www.publicrecordmedia.org/wp-
content/uploads/2017/MNDPS2016_pd_008.pdf; Nebraska (3 missions) REQ-As:
https://www.muckrock.com/foi/nebraska-300/emac-agreement-and-after-action-reports-regarding-dapl-
north-dakota-nebraska-emergency-management-agency-30020/; Wyoming (copy of ND request only):
https://www.muckrock.com/news/archives/2017/jan/18/north-dakota-emac-request/.
Released in entirety - Wisconsin: http://www.unicornriot.ninja/?p=11176 (after action report,
Intergovernmental Agreement, and EMAC RC-2 form, St. Croix Co. Sheriff’s Office.
All accessed April 14, 2017.
Case No. 2017-00051-PQ -29- REPORT AND RECOMMENDATION
to disclose the location of the staging area for the 2016 deployment. The other
information identified as security records within the REQ-A remains subject to the
exception, as noted in the Appendix.
Request No. 3: EMAC Agreement
Records Prepared to Respond to Acts of Terrorism – R.C. 149.433(A)(2)(a)
{¶45} Separately from R.C. 149.43(A)(1), DPS asserts that the EMAC Agreement
is excepted pursuant to R.C. 149.433(A)(2):
“(A) As used in this section: * * *. ‘Security record’ means any of the following:
(2) Any record assembled, prepared, or maintained by a public office or public
body to prevent, mitigate, or respond to acts of terrorism, including any of the
following: (a) Those portions of records containing specific and unique
vulnerability assessments or specific and unique response plans either of which
is intended to prevent or mitigate acts of terrorism, and communication codes or
deployment plans of law enforcement or emergency response personnel; * * *.”
(Emphasis added.)
DPS submits no evidence by affidavit or otherwise that Ohio, North Dakota, or Federal
authorities have determined that the DAPL protests included acts of terrorism.7
Lieutenant Colonel Teaford describes the request from North Dakota as one for “law
enforcement assistance in responding to protests over the Dakota Access Pipeline
(DAPL),” not to prevent, mitigate, or respond to acts of terrorism. In the absence of
qualified evidence, the court may not draw an inference that a protest where some
participants use violence involves “acts of terrorism.”
{¶46} I conclude that because R.C. 149.433(A)(2) applies only to records
“assembled, prepared, or maintained by a public office * * * to prevent, mitigate, or
respond to acts of terrorism,” and DPS provides no evidence that it prepared the REQ-A
to prevent, mitigate or respond to acts of terrorism, DPS has not met its burden to prove
that R.C. 149.433(A)(2) applies to the records at issue.
7 Despite the wording of the link, the article provided at page 14 footnote 3 of DPS’ response,
http://www.cincinnati.com/story/new/2017/01/10/ohio-officials-calling-standing-rock-protesters-
terrorists/96250080/, does not quote any “Ohio officials calling Standing Rock protesters terrorists.”
Case No. 2017-00051-PQ -30- REPORT AND RECOMMENDATION
Request No. 4: OSHP Bylaws or Procedures
No Responsive Records
{¶47} With respect to Request No. 4, “Any OSHP bylaws or procedures which
govern agreements with EMAC,” DPS responded on November 23, 2016 that there
were no responsive records to this request. Ex. A ¶¶ 6, 10. A respondent has no duty
to create or provide access to nonexistent records. State ex rel. Lanham v. Smith, 112
Ohio St. 3d 527, 2007-Ohio-609, ¶ 15. Based on this evidence, I find that GP Media has
not shown a denial of access to any existing records responsive to Request No. 4.
“Security Records” May Be Redacted from EMAC Agreement
{¶48} DPS argues that the REQ-A may be withheld in its entirety, rather than
redacting only those items meeting the definition of “security record.” (Response p. 7-
8.) DPS points to the definition in R.C. 149.433(A)(1) of “[a]ny record that contains
information directly used for protecting * * *.” However, the Public Records Act
expressly requires that only records falling squarely within an exception may be
withheld:
“If a public record contains information that is exempt from the duty to permit
public inspection or to copy the public record, the public office or the person
responsible for the public record shall make available all of the information within
the public record that is not exempt.”
R.C. 149.43(B)(1). The suggestion that the exception covers an entire 8-page
document, no matter how little of it constitutes a “security record,”
“ignores [Supreme Court] precedent holding that public records can be items,
documents, and items within documents. See, e.g., State ex rel. Beacon Journal
Publishing Co. v. Akron (1994), 70 Ohio St. 3d 605, 606, 1994 Ohio 6, 640 N.E.2d
164 (Social Security numbers found within payroll files were ‘records’ for
purposes of R.C. 149.011(G)); Dupuis, 98 Ohio St. 3d 126, 2002 Ohio 7041, 781
N.E.2d 163, P21 (settlement proposal within larger court record is a public
record). Moreover, a contrary holding would ignore our precedent that the public
records laws should be read broadly and construed liberally to effectuate the
intent of the statute. See State ex rel. Plain Dealer, 80 Ohio St. 3d at 518, 687
Case No. 2017-00051-PQ -31- REPORT AND RECOMMENDATION
N.E.2d 661; Gannett Satellite Information Network, Inc., 80 Ohio St. 3d at 264,
685 N.E.2d 1223; Hutson, 70 Ohio St. 3d at 623, 640 N.E.2d 174.”
Kish v. Akron, 109 Ohio St. 3d 162, 2006-Ohio-1244, footnote 3.
{¶49} Further, an analogous exception for “trial preparation” records is defined
using identical language, as “any record that contains information that is specifically
compiled in reasonable anticipation of [court proceedings].” R.C. 149.43(A)(4).
However, not every record that simply contains trial preparation records within it may be
withheld in its entirety from a public records request:
“[R]ecords which purportedly contain trial preparation records * * * may be
viewed in camera by this court to determine which sections may be redacted
pursuant to the trial preparation records exception.”
Bodiker, supra, at 428. Public offices have redacted security records from larger
records, where appropriate. In FitzGerald, 145 Ohio St. 3d 92, 2015-Ohio-5056, the
county released key-card-swipe data for five employees and withheld only the data for
the county executive, Id. ¶ 6, rather than labeling the entire key-card-swipe database a
“security record” and withholding all six. In State ex rel. Bardwell v. Cordray, 181 Ohio
App.3d 661, 2009-Ohio-1265 (10th Dist.), ¶¶ 68-70, 78, the Attorney General’s Office
redacted only a phone number and an email response as security records, from within
larger correspondence. See also other-state REQ-A redactions in footnote 6.
A document that is composed entirely of security records, or in which security records
are inextricably intertwined with the remainder of the document, may be withheld in toto.
However, where only discrete and severable items fall squarely within the definition of
“security records” and are assembled within a larger document, the Public Records Act
and relevant case law require that only the specific security records may be redacted.
Conclusion
{¶50} Upon consideration of the pleadings and attachments, I find that GP Media
has failed to establish by clear and convincing evidence that DPS violated division (B) of
R.C. 149.43 when it denied GP Media’s Request No. 2 for all communication issued or
Case No. 2017-00051-PQ -32- REPORT AND RECOMMENDATION
received by all employees of the OSHP regarding the deployment of Troopers to North
Dakota in 2016. The request was ambiguous, overly broad, and required a search or
research instead of reasonably identifying the records sought. Accordingly, I
recommend that the court issue an order DENYING GP Media’s claim for relief based
on Request No. 2.
{¶51} I further find that GP Media has failed to establish by clear and convincing
evidence that DPS violated division (B) of R.C. 149.43 when it denied GP Media’s
Request No. 4 for any OSHP bylaws or procedures which govern agreements with
EMAC. DPS presented unrebutted evidence that no records responsive to this request
exist. Accordingly, I recommend that the court issue an order DENYING GP Media’s
claim for relief based on Request No. 4.
{¶52} I further find that GP Media has established by clear and convincing
evidence that DPS violated division (B) of R.C. 149.43 when, following their return from
deployment, it withheld the names of the 37 Troopers deployed to North Dakota. I
further find that GP Media has established by clear and convincing evidence that DPS
violated division (B) of R.C. 149.43 when it withheld the EMAC Agreement/REQ-A in its
entirety instead of redacting only the portions that meet the definition of “security record”
in R.C. 149.433(A)(1). Accordingly, I recommend that the court issue an order
GRANTING GP Media’s claim for relief based on Request No. 1, and GRANTING IN
PART GP Media’s claim for relief based on Request No. 3, and which 1) directs the
DPS to provide GP Media with a copy of the EMAC Agreement/REQ-A, subject to
redaction of items indicated in the ATTACHMENT hereto, and 2) provides that
GP Media is entitled to recover from DPS the costs associated with this action, including
the twenty-five dollar filing fee. R.C. 2743.75(F)(3)(b).
{¶53} Pursuant to R.C. 2743.75(F)(2), either party may file a written objection
with the clerk of the Court of Claims of Ohio within seven (7) business days after
receiving this report and recommendation. Any objection shall be specific and state
Case No. 2017-00051-PQ -33- REPORT AND RECOMMENDATION
with particularity all grounds for the objection. A party shall not assign as error on
appeal the court’s adoption of any factual findings or legal conclusions in this report and
recommendation unless a timely objection was filed thereto. R.C. 2743.75(G)(1).
JEFFERY W. CLARK
Special Master
cc.
John C. Greiner
312 Walnut Street, Suite 1800
Cincinnati, Ohio 45202
Morgan A. Linn
1970 West Broad Street, Suite 531
Columbus, Ohio 43223
Heather L. Buchanan
30 East Broad Street, 16th Floor
Columbus, Ohio 43215
Filed April 24, 2017
Sent to S.C. Reporter 6/13/17
Case No. 2017-00051-PQ -34- REPORT AND RECOMMENDATION
ATTACHMENT
Recommended Redactions To REQ-A
The sections and fields of the REQ-A form are listed in the left column (see also
footnote 1). Only fields that have content are listed. In the right column, information is
identified as meeting or not meeting the definition of “security record” in R.C.
149.433(A)(1): a “record that contains information directly used for protecting or
maintaining the security of a public office against attack, interference, or sabotage.”
SECTION I TO BE COMPLETED BY THE REQUESTING STATE
Exercise or Event: New or Amendment #: These fields do not contain
Event information that meets
Date Requesting State R.C. 149.433(A)(1)
State Mission Tracking #: EM Software Tracking #:
Requesting Agency: EMAC Tracking #:
Requesting State REQ-A Contact These fields do not contain
First Name Last Name information that meets
Phone 1: Phone 2: R.C.149.433(A)(1).
Email 1: Email 2: Government email addresses
used
Resource Request These fields do not contain
Mission Type/Source: information that meets
Type/Status: R.C. 149.433(A)(1). Resource
Mission Description: Description shows only
Resource Description: resources requested. No
# Requested evidence details how
# Type withholding this information
protects security of officers
Deployment Dates (Including Travel Days) These fields do not contain
Deployment Date: information that meets
Demobilization Date: R.C. 149.433(A)(1)
Duty Length
Case No. 2017-00051-PQ -35- REPORT AND RECOMMENDATION
Deployment Details These fields do not contain
Work Location/Facilities information that meets
Location/Facility Name R.C. 149.433(A)(1)
Address 1, City, Zip Code
Working Conditions
Comments:
Living Conditions
Comments:
Logistics Comments:
Identify Health & Safety Concerns These fields do not contain
(All Selected Apply) information that meets
No Safety or Health Concerns have been Identified R.C. 149.433(A)(1). Content
Immunizations or Vaccinations are suggested to deploy of Concerns/Remarks is too
Environmental Hazards Exist general to constitute a
Personal Protection Equipment Needed “vulnerability assessment.”
Safety Concerns/Remarks
Requesting State Resource Coordination Contact These fields do not contain
First Name Last Name information that meets
Title Agency R.C. 149.433(A)(1).
Phone 1 Mobile Government email addresses
Email 1 Email 2 used
Staging Area and Point of Contact Location/Facility Name and
POC First Name Last Name Address could assist persons
Phone 1 Phone 2 in creating countermeasures,
Location/Facility Name Exhibit A ¶ 29, so is properly
Address 1 withheld before and during
City Zip Code deployment. After return,
none of this section contains
information that meets
R.C. 149.433(A)(1)
EMAC Authorized Signature These fields do not contain
Name of EMAC Authorized Representative information that meets
Signature of EMAC Authorized Representative R.C. 149.433(A)(1)
Date
Case No. 2017-00051-PQ -36- REPORT AND RECOMMENDATION
SECTION II TO BE COMPLETED BY THE ASSISTING STATE
Assisting State: These fields do not contain
Assisting Agency: information that meets
R.C. 149.433(A)(1)
Offer Description Ex. A ¶¶ 13, 29-32 states that
Mission Start Date: Arrival Date: disclosing equipment to be
Departure Date: Mission End Date: used could mitigate personal
# Mission Days security, both in N.D. and for
Mission Type Type/Status future similar deployment.
Mission Description Resource Description text lines
Resource Description 25-33 may therefore be
# Requested withheld. None of the other
# Type fields contain information that
meets R.C. 149.433(A)(1)
Assisting State REQ-A Contact These fields do not contain
First Name Last Name information that meets
Phone 1: Phone 2: R.C. 149.433(A)(1).
Email 1: Government email address
used
Total Mission Estimated Costs These fields do not contain
Travel: information that meets
Personnel: R.C. 149.433(A)(1)
Equipment:
Commodities:
Other:
ESTIMATED TOTAL COST:
Travel These fields do not contain
Personal Rental Vehicle Government. information that meets
Vehicle Costs: Costs: Vehicle Costs: R.C. 149.433(A)(1)
Air Travel Meals & Tips Meals & Tips
Costs: (Receipt): (Per Diem):
Lodging: Parking Fees: Shipment &
Transportation:
Total:
Case No. 2017-00051-PQ -37- REPORT AND RECOMMENDATION
EMAC Authorized Signature These fields do not contain
Name of EMAC Authorized Representative information that meets
Signature of EMAC Authorized Representative R.C. 149.433(A)(1)
Date:
Personnel Costs These fields do not contain
These column headings above 37 entry rows: ID, information that meets
Name, Reg. Salary Hourly Rate, Fringe Benefit R.C. 149.433(A)(1).
Hourly Rate, Reg. Hours Worked Per Day, OT Salary
Hourly Rate, OT Fringe Benefit Hourly Rate, OT Note: no officer ranks, phone
Hours Worked Per Day, # Days, Total Daily Cost, #’s, or email addresses are
Total Mission Cost entered
Commodity Costs Ex. A ¶¶ 13, 29-32 states that
These column headings above 4 entry rows: ID, disclosing equipment to be
Commodity Description, Cost Per Item, Quantity, used could mitigate personal
Total Costs security, both in N.D. and for
future similar deployment. The
Commodity ID and Description
columns meet
R.C. 149.433(A)(1)
Equipment Costs Ex. A ¶¶ 13, 29-32 states that
These column headings above 1 entry row: ID, disclosing equipment to be
Equipment Description, Cost Per item, Quantity, # used could mitigate personal
Days Used, Total Cost security, both in N.D. and for
future similar deployment. The
Equipment ID and Description
columns meet
R.C. 149.433(A)(1)
Other Costs These fields do not contain
These column headings above 1 entry row: ID, Other information that meets
Description, Cost Per Item, Quantity, # Days Used, R.C. 149.433(A)(1)
Total Cost
Case No. 2017-00051-PQ -38- REPORT AND RECOMMENDATION
SECTION III TO BE COMPLETED BY THE REQUESTING STATE
Date These fields do not contain
Event information that meets
Mission Description: R.C. 149.433(A)(1)
Req. State Tracking #:
EMAC Authorized Signature These fields do not contain
Name of EMAC Authorized Representative information that meets
Signature of EMAC Authorized Representative R.C. 149.433(A)(1)
Date