“The policy underlying the Public Records Act is that ‘open government serves the public interest and our democratic system.'”

On April 24, 2017, Ohio Court of Claims Special Master Jeff Clark issued a 33-page Report and Recommendation requiring the Ohio Department of Public Safety (“DPS”) to disclose certain records. Gannett GP Media, Inc. v. Ohio Department of Public Safety, Case No. 2017-00051-PQ (Ct. Claims Apr. 24, 2017). The Court’s decision tackled a few of the more pervasive exceptions to Ohio’s Public Records Act (R.C. §149.43) – privacy and security concerns. The Court rejected most of DPS’s arguments, and found that, “DPS violated division (B) of R.C. 149.43 when, following their return from deployment, it withheld the names of 37 Troopers deployed to North Dakota. . . . [and] when it withheld [certain documents relating to the Troopers’ deployment in their] entirety instead of redacting only the portions that meet the definition of ‘security record’ in R.C. 149.433(A)(1).” The decision is important because it offers an excellent summary of Ohio’s Public Records Act, including insights into the policy behind the Act, how to properly craft and respond to a request, and when and under what circumstances information may be protected pursuant to privacy and security concerns.

Background

In fall 2016, pursuant to a multistate agreement, the North Dakota Emergency Management Agency requested assistance from the Ohio State Highway Patrol in responding to protests over the Dakota Access Pipeline. The highway patrol is a division of the DPS.

On November 3, 2016, an employee of the Cincinnati Enquirer made a public records request for:

(1) “[a] list of the names and ranks of the 37 Ohio troopers sent to North Dakota via an agreement with the Emergency Management Assistance Compact (EMAC)”;

(2) “[a]ny and all communication issued or received by any employee of the Ohio State Highway Patrol, regarding deployment of these officers”;

(3) “[a]ny document that outlines the agreement between the EMAC and the OSHP regarding the action of sending the 37 troopers”; and

(4) “[a]ny OSHP bylaws or procedures which govern agreements with EMAC.”

DPS responded by withholding the records requested in Nos. (1) and (3) above, pursuant to 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.” DPS also denied the second request as overbroad, and the fourth request for lack of responsive records. Respondent, owner of the Cincinnati Enquirer, filed a complaint with the Court of Claims. Following a failed attempt at mediation, the parties completed briefing and the Court issued its Report and Recommendation.

“Proper Requests” Under the Act

While the Court focused a majority of its decision on the privacy and security-related exceptions claimed by DPS, the decision also includes guidance regarding the basic process for requesting public records. Relying on Ohio Supreme Court precedent, the Court explained that, “[a]n ambiguous request for research rather than specific records undermines the legitimate interests of both the public office and the requester.” Specifically, the Court found that:

“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.” (Emphasis in original.)

Applying this standard, the Court found that request No. (2) was overbroad and “poses a potentially impossible task to respond fully to its ambiguous and overly broad terms.”

Importantly, the Court also considered evidence in the record that showed that the public office attempted to work with the Requester to revise the request. The Court reiterated a public office’s responsibility to provide an opportunity for the requester to revise the request if it was denied as ambiguous or overbroad. The Court further explained that, while the office is not obligated to rewrite the requester’s request, the office “should convey some relevant information to support revision of the request . . . [including] [1] offering to discuss revision with the requester, [2] [providing] a written explanation of how records are maintained and accessed, and [3] providing the requester with a copy of the office’s records retention schedule.” Because DPS had met its obligation to provide the Requester with the opportunity and information to revise its request, the Court found that the Requester failed to meet its obligation to reasonably identify the records sought.

Privacy, Security, and Terrorism Exceptions to the Act

Often, public offices will withhold records and claim that the information is exempt under the catchall codified in R.C. 149.43(A)(1)(v) – “[r]ecords the release of which is prohibited by state or federal law.” DPS was no different. DPS argued that the names of the troopers deployed, as well as the agreements governing the deployment of the troopers, were protected from disclosure pursuant to the Fourteenth Amendment right to privacy, and R.C. 149.433’s exemption of “security records” and records relating to acts of terrorism. The Court disagreed with virtually all of DPS’s arguments and found that “the evidence does not justify the continuing use of the exception following the Trooper’s return to Ohio.”

First, the Court rejected DPS’s constitutional privacy arguments, and found that “the names of peace officers are not protected” in Ohio. (Emphasis in original.) Relying on Ohio’s long-standing statutory and legal precedent, the Court explained that, “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.” (Emphasis in original.) Further, “bare allegations of continuing physical risk . . . [that] are speculative and non-specific” are insufficient, even under the strict scrutiny standard, to protect the names of peace officers.

Similarly, the Court rejected DPS’s argument that the troopers’ names are exempt from release under R.C. 149.433. Applying much of the same reasoning summarized above, the Court found that, “[t]he 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.” The Court further explained that the security records exception to Ohio’s Public Records Act (1) “must be proven in each case”; (2) may not be “asserted beyond the person(s) demonstrably at risk, or after the risk has abated”; (3) “[a]n initial correct withholding of a record as a security record . . . does not establish the exception in perpetuity”; and (4) simply because some information contained in a record falls within the security record exception, the record may not be withheld in its entirety.

Finally, the Court rejected DPS’s argument that the protests at issue were “acts of terrorism” under R.C. 149.433(A)(2). The Court found that, “[i]n the absence of qualified evidence, the court may not draw an inference that a protest where some participants use violence involves ‘acts of terrorism.'”