McDougald v. Greene

• Decision Date: 02 September 2020
• Docket Number: No. 2019-0677,2019-0677
• Parties: MCDOUGALD v. GREENE.
• Court: Ohio Supreme Court

162 Ohio St.3d 250
165 N.E.3d 261

MCDOUGALD
v.
GREENE.

No. 2019-0677

Supreme Court of Ohio.

Submitted February 11, 2020
Decided September 2, 2020

Jerone McDougald, pro se.

Dave Yost, Attorney General, and Jared S. Yee, Assistant Attorney General, for respondent.

DeWine, J.

162 Ohio St.3d 250

{¶ 1} In this mandamus case, Jerone McDougald, who was an inmate at the Southern Ohio Correctional Facility, requested copies of the prison's most recent shift-assignment duty rosters, documents that detailed the assignment of prison guards to various posts within the prison. Larry Greene, the prison's public-records custodian, turned over the records, but he redacted almost all the information, leaving only the page headings, dates, and shift-supervisor signature lines. We must decide whether, by redacting almost all of the information in the documents, Greene violated his duties under Ohio's Public Records Act, R.C. 149.43. As we explain, the documents fall under the security-records exemption to the Public Records Act, and as such, Greene had no legal duty to turn them over. Thus, we deny McDougald's request for a writ of mandamus.

Background

{¶ 2} In February 2019, McDougald sent Greene a prison kite requesting the prison's "most current [shift-assignment] duty rosters" for the first, second, third, and fourth shifts at the prison. A few weeks later, Greene responded that he would provide copies of the records if McDougald paid 40 cents for the copies. But, Greene warned, the records would be heavily redacted, leaving only the "page headings, dates, and shift supervisor signature lines." Greene also wrote

162 Ohio St.3d 251

that "the legal basis for these redactions are ‘security record,’ per Ohio Revised Code (RC) 149.433 (A) and (B) and ‘plans * * * for disturbance control,’ per RC 5120.21(D)(2)."¹ (Ellipsis sic.) McDougald paid the cost and received the documents, which were highly redacted, just as Greene had warned. McDougald then filed the

165 N.E.3d 263

present mandamus action, arguing that the redactions were improper, that he is entitled to unredacted copies of the records, and that he should be awarded costs and statutory damages.

{¶ 3} We ordered Greene to submit unredacted copies of the shift-assignment duty rosters for in camera review. 156 Ohio St.3d 1469, 2019-Ohio-2953, 126 N.E.3d 1184. Each roster is a two-page form. The first page divulges the identity of the captain and lieutenant on duty, the names of officers assigned to various locations around the prison, and the names of officers assigned as "escorts." The first page also lists names under categories such as "good days" and "other absences." At the bottom of the page are handwritten notes, which include things like staff announcements, security reminders, or incident updates. The second page provides totals for the number of officers assigned to "permanent posts" and "additional posts." It also provides tallies related to various reasons for absences and indicates officer shortages or overages. The document is then signed by the shift supervisor.

Analysis

{¶ 4} Under R.C. 149.43(B)(1), a public office is required to make copies of public records available to any person on request and within a reasonable period of time. A "public record" is a record "kept by any public office." R.C. 149.43(A)(1). A party who believes that his request for a public record has been improperly denied may file a mandamus action in order to compel production of the record. R.C. 149.43(C)(1)(b). That is what McDougald has done here. For McDougald to succeed in his mandamus action, he must demonstrate that he has a clear legal right to the documents and that Greene has a clear legal duty to turn them over. State ex rel. Cincinnati Enquirer v. Sage , 142 Ohio St.3d 392, 2015-Ohio-974, 31 N.E.3d 616, ¶ 10.

{¶ 5} The parties do not dispute that the prison is a public office subject to the Public Records Act. But, relevant here, the Public Records Act contains several

162 Ohio St.3d 252

exemptions that exclude certain records from disclosure. In his briefing, Greene claims that two of those exemptions—the "infrastructure-records exemption," R.C. 149.433(B)(2), and the "security-records exemption," R.C. 149.433(B)(1), apply here. As we explain, the records at issue are not infrastructure records but they are security records. Because they are security records, they are exempt from disclosure under the Public Records Act and Greene has no legal duty to turn them over.

Infrastructure Records

{¶ 6} We begin with the infrastructure-records exemption. R.C. 149.433(A) defines an infrastructure record as "any record that discloses the configuration of critical systems including, but not limited to, communication, computer, electrical, mechanical, ventilation, water, and plumbing systems, security codes, or the infrastructure or structural configuration of a building." But the definition goes on to explain that infrastructure records do not include "a simple floor plan that discloses only the spatial relationship of components of the building." Id.

{¶ 7} Greene does not meaningfully explain how the assignment of guards to specific areas of the prison satisfies this statutory definition. And it is hard to see how he could. It is not even facially plausible to think that guard assignments constitute the "configuration of a critical system," id. And guard locations have little similarity to the systems that the statute identifies as examples that fall under this exemption—communication, computer, electrical, mechanical, ventilation, water, and plumbing systems. Nor does the assignment

165 N.E.3d 264

of guards within a building count as relating to the "structural configuration of a building ." Guards, after all, are not part of the building.

{¶ 8} Nevertheless, Greene insists that the documents showing the location of the guards are infrastructure records based on an isolated bit of dicta from State ex rel. Rogers v. Dept. of Rehab. & Corr. , 155 Ohio St.3d 545, 2018-Ohio-5111, 122 N.E.3d 1208, ¶ 12. Rogers addressed whether security-camera footage of a use-of-force incident was exempt under the infrastructure-records exemption. This court concluded that because the video showed no more than what could have been gleaned from a simple floor plan, the footage was not an infrastructure record. But this court went on to comment that the footage did not "show the location of any fire or other alarms, correctional-officer posts , or the configuration of any other critical system." (Emphasis added.) Id. From this isolated reference to "correctional-officer posts," Greene would have us conclude that a document identifying the location of guards in a prison must be an infrastructure record. But Rogers provides no analysis of how or when correctional-officer posts constitute infrastructure records. And picking up isolated bits of dicta and running with them without returning to the statutory text can lead to legal gobbledygook, in much the same way that a game of telephone can lead to

162 Ohio St.3d 253

miscommunication. Because there is no basis in the statutory text for concluding that the duty rosters are infrastructure records, we reject Greene's argument.

Security Records

{¶ 9} Next, we turn to the security-records exemption. Among the items exempt from disclosure are "security records," which includes "[a]ny record that contains information directly used for protecting or maintaining the security of a public office against attack, interference, or sabotage." R.C. 149.433(A)(1). It is clear from the face of the documents that this exemption applies to the records at issue here. The shift-assignment duty rosters detail the identity and location of guards posted throughout the prison. One need not be too creative to see how this is information that could be used to plan an escape or an attack on the prison or to aid in the smuggling in of contraband. Where the guards are posted, which guards are assigned to a particular post, and how many there will be are almost certainly among the first things a person planning an attack or escape or trying to sneak something in would want to know. The information could reveal potential areas of lessened security. And the post-assignment information could be used to target individual guards who might be thought easier to overcome or susceptible to improper influence. The obvious correlative is that information about the movements of a prison's guards would be used by the prison to ensure the security of the facility. We thus have no problem concluding that the shift-assignment duty rosters are security records for purposes of the Public Records Act because they contain information "directly used for protecting or maintaining the security" of the prison.

{¶ 10} To be sure, Greene's argument on this front is cursory, at best. Indeed, it consists of a single sentence asserting that the exemption applies. And his supporting affidavit doesn't do...