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Gannett GP Media, Inc. v. Ohio Department of Public Safety

Court of Claims of Ohio

April 24, 2017

GANNETT GP MEDIA, INC., D/B/A, THE CINCINNATI ENQUIRER Requester
v.
OHIO DEPARTMENT OF PUBLIC SAFETY Respondent

          Sent to S.C. Reporter 6/13/17

          REPORT AND RECOMMENDATION

          JEFFERY W. CLARK Special Master.

         {¶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.)

         {¶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:

"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 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 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 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 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 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 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] Natl 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 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.

         {¶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 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 ...


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