State ex rel. Rogers v. Dep't of Rehab. & Corr.

• Decision Date: 20 December 2018
• Docket Number: No. 2017-0331,2017-0331
• Citation: 122 N.E.3d 1208,2018 Ohio 5111,155 Ohio St.3d 545
• Parties: The STATE EX REL. ROGERS v. DEPARTMENT OF REHABILITATION AND CORRECTION.
• Court: Ohio Supreme Court

155 Ohio St.3d 545

122 N.E.3d 1208

2018 Ohio 5111

The STATE EX REL. ROGERS

v.DEPARTMENT OF REHABILITATION AND CORRECTION.

No. 2017-0331

Supreme Court of Ohio.

Submitted April 10, 2018

Decided December 20, 2018

James J. Leo, for relator.

Michael DeWine, Columbus, Attorney General, and Thomas Madden and Andrea K. Boyd, Assistant Attorneys General, Columbus, for respondent.

Kennedy, J.{¶ 1} In this original action, relator, Cor-re-don Rogers, seeks a writ of mandamus to compel respondent, Ohio Department of Rehabilitation and Correction ("DRC"), to release security-camera video footage related to a use-of-force incident at Marion Correctional Institution ("MCI"). Rogers also seeks an award of statutory damages, attorney fees, and court costs. Because we hold that the requested record is neither an "infrastructure record" nor a "security record" under R.C. 149.433, we grant the writ of mandamus and order DRC to provide Rogers with an unredacted copy of the requested video. We further order DRC to reimburse Rogers for the court costs he paid to commence this original action, and we grant Rogers's request for attorney fees and statutory damages. We deny as moot DRC's motion for a protective order.

I. Background

A. Public-records request

{¶ 2} On February 15, 2017, Rogers, a DRC employee at MCI, sent a public-records request by electronic and certified mail to Pamela Shaw, administrative assistant to the warden at MCI. The request was for "any and all videos related to the following: 1. November 10, 2015 Use of Force Event involving Officer Shiffer and Lieutenant Byrd and Inmate Wilt (also referred to as a ‘secondary Use of Force’ on page 3 of Captain Straker's November 20, 2015 Investigation Summary Use of Force)." (Boldface and capitalization omitted.) On the same day, Shaw responded with an e-mail stating that the request was denied because "[t]he record of the security video cameras * * * is exempt from public record disclosure as both an infrastructure record and a security record, as set forth in RC 149.433(B) and Ohio Administrative Code 5120-9-49(B)(6) and (B)(7)." Shaw further stated that the requested video "discloses the configuration of the department's critical systems, including security systems. The record also contains specific camera placement information that is directly used for protecting or maintaining the security of the department against attack, interference, sabotage, or to prevent, mitigate, or respond to acts of terrorism."

B. Procedural history

{¶ 3} On March 7, 2017, Rogers filed a complaint for a writ of mandamus alleging that DRC wrongly denied him timely access to the requested record in violation of R.C. 149.43(B). After mediation efforts were unsuccessful, DRC filed an answer to the complaint. On November 1, 2017, we granted an alternative writ and ordered DRC to file unedited copies of the withheld video under seal.

151 Ohio St.3d 1423, 2017-Ohio-8371, 84 N.E.3d 1061. DRC complied with the order, and the parties submitted a joint stipulation of facts. In addition, Rogers submitted as evidence his own affidavit, the affidavit of his attorney, James J. Leo, and copies of DRC's responses to Rogers's discovery requests. DRC submitted as evidence the affidavits of David Bobby, Northwest Regional Director for DRC, and Trevor Clark, DRC Assistant Chief Counsel.

C. Description of sealed evidence

{¶ 4} The camera that created the video at issue is in plain view. The video is continuous, soundless, and runs for two minutes and 28 seconds. The entire use-of-force incident is less than one minute of the video.

II. Legal Analysis

A. Mandamus and the Public Records Act

{¶ 5} Mandamus is an appropriate remedy to compel compliance with Ohio's Public Records Act. See R.C. 149.43(C)(1)(b). To be entitled to the writ, Rogers must demonstrate that he has a clear legal right to the requested relief and that DRC has a clear legal duty to provide the relief. State ex rel. Cincinnati Enquirer v. Sage , 142 Ohio St.3d 392, 2015-Ohio-974, 31 N.E.3d 616, ¶ 10. We consider the merits of Rogers's claim under the standard of clear and convincing evidence, which is understood as

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, 120 N.E.2d 118 (1954), paragraph three of the syllabus; see State ex rel. Cincinnati Enquirer v. Deters , 148 Ohio St.3d 595, 2016-Ohio-8195, 71 N.E.3d 1076, ¶ 19 (under the Public Records Act, a relator must prove, by clear and convincing evidence, his or her entitlement to relief in mandamus).

{¶ 6} R.C. 149.43(B)(1) requires a public office to make copies of public records available to any person upon request, within a reasonable period of time. A "public record" is a record "kept by any public office," including state offices. R.C. 149.43(A)(1). Because MCI is a public institution operated by a state agency, it qualifies as a "public office." See R.C. 149.011(A). The state policy underlying the Public Records 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. To that end, the public-records statute "must be construed ‘liberally in favor of broad access, and any doubt is resolved in favor of disclosure of public records.’ " State ex rel. School Choice Ohio, Inc. v. Cincinnati Pub. School Dist. , 147 Ohio St.3d 256, 2016-Ohio-5026, 63 N.E.3d 1183, ¶ 12, quoting State ex rel. Cincinnati Enquirer v. Hamilton Cty. , 75 Ohio St.3d 374, 376, 662 N.E.2d 334 (1996).

B. Claimed exceptions—infrastructure and security records

{¶ 7} DRC must produce the video to Rogers unless it proves that the video fits within one of R.C. 149.43's specific exceptions or the general exception for "[r]ecords the release of which is prohibited by state or federal law," R.C. 149.43(A)(1)(v). See also Sage at ¶ 11. Exceptions to the Public Records Act "must be strictly construed against the public-records custodian, and a records custodian bears the burden of establishing the applicability of an exception." State ex rel. Physicians Commt. for Responsible Medicine , 108 Ohio St.3d 288, 2006-Ohio-903, 843 N.E.2d 174, at ¶ 28. To meet its burden, the records custodian must prove 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, ¶ 10.

{¶ 8} DRC asserts that the video is not a public record because it qualifies as an infrastructure record and a security record, both of which are stated exceptions to the definition of a "public record," and therefore is not subject to release or disclosure under R.C. 149.43. R.C. 149.433(B)(1) and (2).

1. Infrastructure records

{¶ 9} An "infrastructure record" is "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." R.C. 149.433(A). Importantly, an infrastructure record "does not mean a simple floor plan that discloses only the spatial relationship of components of the building." Id.

{¶ 10} DRC contends that the video is an infrastructure record because "videos in [DRC] institutions * * * can and often do disclose the configuration of critical systems, including, but not limited to, security protocols and the infrastructure or structural configuration of the institution." The critical systems that DRC identifies as being compromised by providing this video to the public include "secure fence alarms [and] entrance and exit security procedures." DRC adds that "not only do the security videos in [DRC] institutions disclose other critical systems, but the network of security cameras itself is a critical system." Further, DRC contends that "the scope and camera angles of the videos show various aspects of the infrastructure of the respective institutions, and are a window into what is not captured by the camera."

{¶ 11} DRC's argument notwithstanding, we hold that the video in question is not an infrastructure record under R.C. 149.433(A). The definition of "infrastructure record" explicitly excludes "a simple floor plan that discloses only the spatial relationship of components of the building." R.C. 149.433(A). The video at issue here captures a portion of the Dorm 6 East hallway at MCI. The video shows the junction where another hallway meets the Dorm 6 East hallway and shows windows, doors, and vents in the Dorm 6 East hallway. These individual components of the hallway show "only the spatial relationship of components of the building" that would be revealed in a simple floor plan. Therefore, the video is not an infrastructure record.

{¶ 12} Further, in order for the video to qualify as an infrastructure record under R.C. 149.433(A), it must disclose the configuration of a critical system. DRC claims that the video discloses the configuration or "network of security cameras" within MCI and that it therefore satisfies the definition of an infrastructure record. However, the video does not reveal the location of any video cameras other than the one that recorded the incident at issue. Nor does it show the location of any fire or other alarms, correctional-officer posts, or the configuration of any other critical system. The disclosure of windows, doors, and vents in the Dorm 6 East hallway falls far short of disclosing the underlying configuration of a critical system.

{¶ 13} Accordingly, DRC has not met its burden to show that the video "falls squarely within the exception" for infrastructure records under R.C. 149.433(A). See Jones-Kelley , 118 Ohio St.3d 81, 2008-Ohio...