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

Court of Claims of Ohio

May 30, 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

          Heather L. Buchanan Assistant Attorney General

          Morgan A. Linn Assistant Attorney General

          DECISION

          Patrick M. McGrath Judge

         {¶1} Before the court are (1) objections filed by requester Gannett GP Media, Inc., dba, The Cincinnati Enquirer (GP Media) to Special Master Jeffery W. Clark's report and recommendation issued on April 24, 2017, (2) objections filed by respondent Ohio Department of Public Safety (ODPS) to Special Master Clark's report and recommendation of April 24, 2017, and (3) a motion to strike affidavits and exhibits filed by GP Media.

         {¶2} As discussed below, the court determines that GP Media's motion to strike should be granted, that GP Media's objections should be overruled, and that ODPS's objections should be overruled. The court further determines that Special Master Clark's report and recommendation should be adopted, including the special master's findings of fact and conclusions of law contained in the report and recommendation.

         Background

         {¶3} On January 17, 2017, GP Media filed a complaint against ODPS that alleged a denial of access to public records in violation of R.C. 149.43(B). The court referred the case to mediation. After mediation failed to resolve all disputed issues, the court returned the case to the docket of Special Master Jeffery W. Clark. On April 24, 2017, Special Master Clark issued a report and recommendation. In his report and recommendation Special Master Clark noted that GP Media made a public-records request to ODPS for:

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.

(Report and Recommendation, 2.) In the conclusion of his report and recommendation Special Master Clark made findings, determinations, and recommendations, stating:

a. 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 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.
b. 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.
c. 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).

         After Special Master Clark issued his report and recommendation, both GP Media and ODPS challenged the report and recommendation by filing objections on May 8, 2017, and May 5, 2017, respectively. With its objections, ODPS filed additional evidence- i.e., affidavits supplementing previously submitted affidavits, and an updated report of social media threats compiled by a criminal intelligence analyst with the North Dakota State and Local Intelligence Center pertaining to a dispute regarding a pipeline in North Dakota. Both GP Media and ODPS responded to the filed objections, with GP Media filing a response on May 15, 2017, and ODPS filing a response on May 19, 2017.

         {¶4} On May 9, 2017, GP Media moved the court to issue an order striking the affidavits and exhibits attached to ODPS's objections. On May 19, 2017, ODPS filed a response to GP Media's motion to strike. Five days later-on May 24, 2017-GP Media moved the court for leave to file a reply to ODPS's response to GP ...


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