GANNETT GP MEDIA, INC., D/B/A, THE CINCINNATI ENQUIRER Requester
OHIO DEPARTMENT OF PUBLIC SAFETY Respondent
to S.C. Reporter 6/13/17
REPORT AND RECOMMENDATION
JEFFERY W. CLARK Special Master.
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
A%20Form%2012-2011.xlsx. See also
http://www.emacweb.org/ for EMAC overview, processes,
and forms (both pages accessed April 13, 2017.)
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.
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
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.
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."
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
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.
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.
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
No. 2: All Communication by Any OSHP Employee Regarding
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.
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
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.
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."
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,
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.
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.
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.
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,  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.
Asserted By DPS
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
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
No. 1: Names of Troopers
Amendment Right to Privacy
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.
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.
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 ...