Requester v. Office of the Prosecuting Attorney, Case No. 2018-00793PQ

CourtCourt of Claims of Ohio
Writing for the CourtSpecial Master Jeffery W. Clark
Citation2019 Ohio 473
Decision Date28 January 2019
Docket NumberCase No. 2018-00793PQ

2019 Ohio 473


Case No. 2018-00793PQ

Court of Claims of Ohio

To S.C. Reporter February 12, 2019
January 28, 2019

Special Master Jeffery W. Clark


{¶1} Ohio's Public Records Act, R.C. 149.43, provides a remedy for production of records under R.C. 2743.75 if the court of claims determines that a public office has denied access to public records in violation of R.C. 149.43(B). The policy underlying the Act is that "open government serves the public interest and our democratic system." State ex rel. Dann v. Taft, 109 Ohio St.3d 364, 2006-Ohio-1825, 848 N.E.2d 472, ¶ 20. Therefore, the Act is construed liberally in favor of broad access, and any doubt is resolved in favor of disclosure of public records. State ex rel. Glasgow v. Jones, 119 Ohio St.3d 391, 2008-Ohio-4788, 894 N.E.2d 686, ¶ 13.

{¶2} On September 21, 2017, requester Andrew Welsh-Huggins, a reporter for the Associated Press, made a public records request to respondent Office of the Prosecuting Attorney, Jefferson County (Prosecutor's Office) for security camera video of a shooting incident that took place in an alley outside the Jefferson County Courthouse. The Prosecutor's Office denied the request in its entirety. (Complaint at 3-4, 9-11.) On May 7, 2018, Welsh-Huggins filed a complaint under R.C. 2743.75 alleging denial of access to public records in violation of R.C. 149.43(B). The Prosecutor's Office has since given Welsh-Huggins seven still photographs from the video which show parts of the incident. (Second Supp. Response, Exhs. 1-7.) The Prosecutor's Office has further disclosed video from a separate "Street Cam" that captured the incident.

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(Response at 7.) On September 11, 2018, following unsuccessful mediation, the Prosecutor's Office filed an answer and motion to dismiss (Response). On September 26, 2018, the Prosecutor's Office filed a supplemental response, and an unredacted copy of the withheld record under seal. On September 27, 2017, Welsh-Huggins filed a reply to the September 11, 2018 response. On October 12 and November 2, 2018, the Prosecutor's Office filed second and third supplemental responses. On November 29, 2018, Welsh-Huggins filed a second reply.

Motion to Dismiss

{¶3} The Prosecutor's Office moves to dismiss the claim on the grounds that the entire video is 1) an infrastructure and security record, and 2) that disclosure would endanger the life or safety of law enforcement personnel or a witness. In construing a motion to dismiss pursuant to Civ.R. 12(B)(6), the court must presume that all factual allegations of the complaint are true and make all reasonable inferences in favor of the non-moving party. Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190, 192, 532 N.E.2d 753 (1988). Then, before the court may dismiss the complaint, it must appear beyond doubt that plaintiff can prove no set of facts entitling him to recovery. O'Brien v. Univ. Community Tenants Union, Inc., 42 Ohio St.2d 242, 245, 327 N.E.2d 753 (1975).

{¶4} The allegations of the complaint and contents of its attachments show that the requested video was kept as an investigatory record by the Prosecutor's Office in anticipation of a civil or criminal action or proceeding. (Complaint at 1-3.) The elements of the definitions of "infrastructure record" (discloses configuration of critical systems beyond the mere spatial relationship of building components) and "security record" (information directly used for protecting or maintaining the security of a public office against attack, interference, or sabotage) are not manifest on the face of the complaint and attachments. R.C. 149.433(A). Nor is it apparent from the complaint that disclosure of the video would endanger the life or physical safety of law enforcement personnel, a crime victim, a witness, or a confidential information source. R.C. 149.43(A)(2)(d).

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Welch-Huggins' complaint sets forth factual allegations and supporting correspondence that if proven entitles him to a finding of denial of access in violation of R.C. 149.43(B) and an order to produce the record. I therefore recommend that the motion to dismiss be DENIED, and the court determine the case on the merits.

Contents of the Video

{¶5} The withheld video is from an exterior security camera on the Jefferson County Courthouse. (Response at 3.) The camera is permanently mounted over the courthouse door that faces Court Street Alley. (Supp. Response at 1.) Review of the video in camera shows that the copy submitted to the court is fisheye effect footage that covers the entrance below the camera, the sidewalk, Court Street alley, and a parking lot across the alley. There is no audio, and the camera does not track, zoom, or otherwise change field of view during the recording. The metadata visible in playback displays a date of 8/21/2017, with a time stamp that runs from 6:59:21 A.M. to 9:00:22 A.M. The shooting incident referenced in the request commences at approximately 8:04:44. The victim is visible or partly visible from 8:04:44 to 8:16:25. The shooter or his moving vehicle are visible from 7:13:40 to 7:15:55, 7:38:23 to 7:39:04,1 and 8:04:50 to 8:05:31. The remainder of the video captures the post-shooting response of law enforcement and medical personnel and vehicles, and the presence of courthouse personnel.

Burdens of Proof

{¶6} In an action to enforce Ohio's Public Records Act (PRA), the burden is on the requester to prove an alleged violation. In mandamus enforcement actions,

[a]lthough the PRA is accorded liberal construction in favor of access to public records, "the relator must still establish entitlement to the requested extraordinary relief by clear and convincing evidence."

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State ex rel. Caster v. Columbus, 151 Ohio St.3d 425, 428, 2016-Ohio-8394, 89 N.E.3d 598, ¶ 15. Entitlement to relief under R.C. 2743.75 must likewise be established by clear and convincing evidence. Hurt v. Liberty Twp., 2017-Ohio-7820, 97 N.E.3d 1153, ¶ 27-30 (5th Dist.).

{¶7} If a public office asserts an exception to the Public Records Act, the burden of proving the exception rests on the public office. "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, paragraph two of the syllabus. Any doubt should be resolved in favor of disclosure. State ex rel. James v. Ohio State Univ., 70 Ohio St.3d 168, 169, 637 N.E.2d 911 (1994). Of note in considering the exceptions claimed here - 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).

{¶8} A claimed violation of R.C. 149.43(B) is analyzed by the special master on the basis of "the ordinary application of statutory law and case law as they existed at the time of the filing of the complaint." R.C. 2743.75(F)(1). In general, a violation of the Public Records Act is determined based on the statutory obligations and remedies in effect on the date the records request was made. State ex rel. Hogan Lovells U.S., L.L.P. v. Dept. of Rehab. & Corr., Slip Opinion No. 2018-Ohio-5133, ¶ 39-43.

Claimed Exceptions

{¶9} R.C. 149.43(A)(1) sets forth specific exceptions from the definition of "public record," as well as a catch-all exception for "[r]ecords the release of which is prohibited by state or federal law." R.C. 149.43(A)(1)(v). The Prosecutor's Office initially withheld

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the video by asserting the statutory exemptions for trial preparation records, R.C. 149.43(A)(1)(g) and (A)(4); confidential law enforcement investigatory records, R.C. 149.43(A)(1)(h) and (A)(2)(a), (b), and (d); and infrastructure and security records, R.C. 149.433(A)(1) and (2). (Complaint at 3-4, 9-11.)

{¶10} In its responses to the complaint, the Prosecutor's Office has not asserted or supported an exception for trial preparation records pursuant to R.C. 149.43(A)(1)(g) and (A)(4), and that defense is therefore waived. The remaining defenses are the statutory exception for infrastructure and security records, R.C. 149.433(A), and confidential law enforcement investigatory records the release of which would endanger the life or safety of law enforcement personnel or a witness. R.C. 149.43(A)(2)(d). (Supp. Response, passim.)

Infrastructure and Security Records - R.C. 149.433

{¶11} The Prosecutor's Office asserts that the entire two-hour video meets the definition of both an "infrastructure record" and a "security record." (Supp. Response at 1.) These terms are separately defined, and will be analyzed separately.

Infrastructure Records

R.C. 149.433(A) provides, in pertinent part:

"Infrastructure record" means 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.

* * *

"Infrastructure record" does not mean a simple floor plan that discloses only the spatial relationship of components of the building."

In State ex rel. Rogers v. Dept. of Rehab. & Corr., Slip Opinion No. 2018-Ohio-5111, the requester sought security video capturing a use-of-force incident in a state prison. The Department of Rehabilitation and Correction (DRC) contended that the video was an infrastructure record because

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"videos in [DRC] institutions * * * can and often do disclose the configuration of critical systems,

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