State ex rel. Ohio Republican Party v. Fitzgerald

• Decision Date: 09 December 2015
• Docket Number: No. 2014–1141.,2014–1141.
• Parties: The STATE ex rel. OHIO REPUBLICAN PARTY v. FITZGERALD, Cty. Executive, et al.
• Court: Ohio Supreme Court

145 Ohio St.3d 92

47 N.E.3d 124

2015 Ohio 5056

The STATE ex rel. OHIO REPUBLICAN PARTY

v.FITZGERALD, Cty. Executive, et al.

No. 2014–1141.

Supreme Court of Ohio.

Submitted June 9, 2015.

Decided Dec. 9, 2015.

Law Firm of Curt C. Hartman and Curt C. Hartman, Amelia; Law Firm of Daniel P. Carter and Daniel P. Carter, Cleveland; and Finney Law Firm, L.L.C., and Christopher P. Finney, Cincinnati, for relator.

Majeed G. Makhlouf, Cuyahoga County Law Director, and Robin M. Wilson, Assistant Law Director, for respondents.

PER CURIAM.

{¶ 1} The Ohio Republican Party ("ORP") seeks a writ of mandamus compelling Cuyahoga County, its former county executive Edward FitzGerald, and Koula Celebrezze, the public-records manager for the Department of Public Works, to fulfill its public-records request seeking records of key-card-swipe data documenting when FitzGerald entered and exited county parking facilities and buildings.

{¶ 2} At the time of the ORP's request, the key-card-swipe data were "security records" exempted from release pursuant to R.C. 149.433, because, according to an affidavit by a detective in the Cuyahoga County Sheriff's Office, FitzGerald had received threats and release of that data would have diminished the county's ability to protect him and maintain the security of the office of the county executive. Thus, upon review, the county had no obligation to release these records.

{¶ 3} Subsequent to receipt of the public-records request, circumstances changed: Cuyahoga County moved its administrative offices to a new building; it demolished its former offices to build a hotel and convention center; and FitzGerald's term of office expired, and he is no longer the county executive. In addition, the county released the records to members of the media in January of this year and thereby waived its argument that they are not subject to the public-records law. Accordingly, there is no longer any basis to withhold the requested key-card-swipe data, and therefore we grant the writ and order release of the records.

Facts and Procedural History

{¶ 4} On May 22, 2014, Chris Schrimpf, the communications director for the ORP, e-mailed a public-records request to Celebrezze and Mary Segulin seeking "the county's key card swipe data that shows when an employee enters or leaves a county building" for five individuals, including FitzGerald. He sent the request to Emily Lundgard, the county's director of communications, on June 2, and on June 9, he e-mailed her again, clarifying that his requests were based on the Cuyahoga County Code, the Cuyahoga County Charter, and the Ohio Public Records Act and indicating that because the request sought only information that the county had already denied to the Plain Dealer, further delay in granting or denying the request should be unnecessary. He sent a follow-up e-mail to Celebrezze on June 17, reiterating the prior request and also requesting the key-card-swipe data for a sixth person. Celebrezze acknowledged receiving the request the next day.

{¶ 5} The ORP filed this mandamus action on July 9, 2014, alleging that the county had failed to respond to its public-record requests, even though the same types of records "have readily been provided with respect to other employees or officials of the County of Cuyahoga." The ORP asserts that the records at issue here are public records pursuant to the Public Records Act and the Cuyahoga County Code and that the county has neither fulfilled the record request nor denied it, nor has it provided a written explanation justifying denial of the request as is required by law. The ORP therefore seeks a writ of mandamus compelling respondents to produce the requested records.

{¶ 6} On July 11, Majeed Makhlouf, the law director for Cuyahoga County, responded to Schrimpf's request, explaining that he could not release the key-card-swipe data for FitzGerald because "the Sheriff's Department [had] confirmed the existence of verifiable security threats barring the release of this information pursuant to R.C. 149.433." He provided the key-card-swipe data for the five other individuals but indicated that the county did not have information on when employees left the building because employees are not required to swipe their key cards to exit.

{¶ 7} On July 21, Schrimpf requested key-card-swipe data going back to January 2011, and he e-mailed again on July 29 to ask when he would receive the key-card- swipe records he had requested but not yet received.

{¶ 8} The next day, Makhlouf responded that the July 21 request was being processed "as expeditiously as possible" in light of the move to the new county administration building. On July 31, he e-mailed the key-card-swipe data requested but again excluded data relating to FitzGerald.

{¶ 9} We granted an alternative writ on September 24, 140 Ohio St.3d 1435, 2014-Ohio-4160, 16 N.E.3d 681, and the parties submitted briefs and evidence.

{¶ 10} In support of its position that the key-card-swipe data is excepted from disclosure, the county presented the affidavit of David DeGrandis, a senior administrative officer with the Cuyahoga County Department of Information Technology, who averred that the county installed the key-card system "for the protection of [the county's] facilities and those who use them." He explained that users have different levels of access to the building and that the key-card-swipe system is used to determine whether a user has security clearance to access a particular part of the building. He also stated that the key-card-swipe data can reveal "sensitive security information," so that

if an individual with high-level security credentials, such as the County Executive, utilizes a non-public entryway to enter an area that is secured via the key-card system without the presence of security personnel, the security key-card data will not only reveal the time patterns of entry, but it will also reveal the existence of the non-public, secured entryway itself.

{¶ 11} The county also presented the affidavit of D. Paul Soprek, a detective with the Cuyahoga County sheriff's department and director of the Principal Protection Unit, which is charged with protecting the county's public officials. He claimed that the Principal Protection Unit "is investigating a number of verified threats * * * against Executive FitzGerald" and asserted that "it is critical to protect the manner and pattern of travel, ingress and egress, and timing. This is precisely the kind of information that the county's security key-card data reveals. Release of the security key-card data for the County Executive diminishes the effectiveness of the Principal Protection Unit and its ability to protect the County Executive."

{¶ 12} Nonetheless, on January 7, 2015, Lundgard, the county's director of communications, released FitzGerald's key-card-swipe data to the Cleveland Plain Dealer. The ORP e-mailed Makhlouf asking whether the county would fulfill its public-records request, but Makhlouf replied that the request had been properly denied when it was submitted and invited the ORP to submit a new request "based on the changed circumstances."

Analysis

Motion for oral argument

{¶ 13} The ORP has moved for oral argument, which is discretionary in an original action. S.Ct.Prac.R. 17.02(A). Because we are able to decide the issues in this case without oral argument, we deny that motion. State ex rel. Mahajan v. State Med. Bd. of Ohio, 127 Ohio St.3d 497, 2010-Ohio-5995, 940 N.E.2d 1280, ¶ 65.

Show-cause order and motion to strike

{¶ 14} On March 25, 2015, we ordered the ORP to show cause why the case should not be dismissed as moot based on media reports that the county had released the key-card-swipe data to the press. 142 Ohio St.3d 1407, 2015-Ohio-1099, 27 N.E.3d 538. As we explained in State ex rel. Anderson v. Vermilion, 134 Ohio St.3d 120, 2012-Ohio-5320, 980 N.E.2d 975, ¶ 18, "providing the requested records to a relator generally renders moot a public-records mandamus claim."

{¶ 15} However, in response to the show-cause order, the ORP asserts that the county still has not provided it all of the requested records. The county admits in its memorandum in response that it released "similar" records to the Plain Dealer, but it contends that the records sought in this action are security and infrastructure records that the county is not required to release. And the county indicates that if the ORP submitted a new request, the county would "place it through the appropriate channels."

{¶ 16} The ORP then moved to strike the county's memorandum in response, arguing that it constitutes "supplemental argument and briefing" in violation of S.Ct.Prac.R. 16.08. However, the county submitted additional evidence to prove that it had exercised its discretion to provide FitzGerald's key-card-swipe data to the press, information that is relevant to determining whether this action is moot. In State ex rel. Cincinnati Enquirer, Div. of Gannett Satellite Information Network, Inc. v. Dupuis, 98 Ohio St.3d 126, 2002-Ohio-7041, 781 N.E.2d 163, ¶ 8, we noted that "[a]n event that causes a case to become moot may be proved by extrinsic evidence outside the record." We therefore deny the motion to strike.

{¶ 17} And because the county has not released the records to the ORP and continues to maintain that pursuant to R.C. 149.433, FitzGerald's key-card-swipe data are not public records that must be released, we conclude that this case is not moot.

Motions to take judicial notice

{¶ 18} The ORP filed two motions asking the court to take judicial notice of information on the county's governmental website—specifically, the county's announcements that the county executive's office had moved to a new building and that a new county executive had replaced FitzGerald. Pursuant to Evid.R. 201(B), courts may take judicial notice of facts not subject to reasonable dispute, and here, these motions are unopposed and the county posted the information on its own website. Thus, the motions to...