Gannett GP Media, Inc. v. Ohio Dep't of Pub. Safety
| Decision Date | 24 April 2017 |
| Docket Number | Case No. 2017-00051-PQ |
| Citation | 2017 Ohio 4247 |
| Parties | GANNETT GP MEDIA, INC., D/B/A, THE CINCINNATI ENQUIRER Requester v. OHIO DEPARTMENT OF PUBLIC SAFETY Respondent |
| Court | Ohio Court of Claims |
{¶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:
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:
{¶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:
{¶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:
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,
{¶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...
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