[Cite as State ex rel. Cincinnati Enquirer v. Streicher, 2011-Ohio-4498.]



                           IN THE COURT OF APPEALS
                  FIRST APPELLATE DISTRICT OF OHIO
                            HAMILTON COUNTY, OHIO



STATE OF OHIO EX REL. THE                              :               CASE NO. C-100820
CINCINNATI ENQUIRER, A
DIVISION OF GANNETT SATELLITE                          :
INFORMATION NETWORK, INC.,
                                                       :                    D E C I S I O N.
              Relator,
                                                       :
        vs.
                                                       :
THOMAS STREICHER,
                                                       :
              Respondent.
                                                       :




Original Action in Mandamus

Judgment of Court: Writ Denied

Date of Judgment Entry on Appeal: September 9, 2011



Graydon Head & Ritchey LLP and John C. Greiner, for Relator,

Peter J. Stackpole, Assistant City Solicitor, for Respondent.
                      OHIO FIRST DISTRICT COURT OF APPEALS



FISCHER, Judge.

        {¶1}    Relator the Cincinnati Enquirer (“the Enquirer”) instituted this

original action seeking a writ of mandamus to compel respondent Thomas Streicher,

in his capacity as chief of police for the city of Cincinnati,1 to produce certain records

pursuant to R.C. 149.43, the Ohio Public Records Act (“Act”). The records related to

a September 2010 incident during which shots were fired between Cincinnati police

officers and members of the Iron Horsemen motorcycle club. Because we determine

that the information sought by the Enquirer is exempt from disclosure under the Act,

we deny the requested writ.

        {¶2}    The parties have stipulated to the record in this case. Part of that

record contains material designated as confidential by Respondent, which remains

under seal by order of this court. The nonconfidential portions of the stipulated

record revealed the following: The Iron Horsemen motorcycle club has existed in the

Cincinnati area for roughly 40 years, but has a nationwide membership. Despite the

Iron Horsemen’s reputation as “an outlaw motorcycle gang,” contact between the

Iron Horsemen and the Cincinnati Police Department generally has been limited.

Although police had not been conducting an active investigation of the Iron

Horsemen, on September 18, 2010, a Cincinnati police officer observed suspicious

activity at JD’s Honky Tonk bar. Approximately 13 other officers who were nearby

assembled and entered the bar. The officers, with one or two exceptions, were

undercover officers—they were plainclothes officers assigned to the police



1Counsel for the city of Cincinnati indicated in the responsive memorandum that Streicher has
retired since the filing of this action. Although not mentioned by the parties, in accordance with
Civ.R. 25(D)(1), we automatically substitute Streicher’s successor as the respondent in this case
(hereinafter referred to as “Respondent”).

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                    OHIO FIRST DISTRICT COURT OF APPEALS



department’s “vice squad.” Some of the officers were wearing ski masks. A clash

between the officers and members of the Iron Horsemen left two city police officers

shot, and a member of the Iron Horsemen dead. The incident resulted in only one

minor criminal charge—a firearm-related offense against an Iron Horsemen

member.

       {¶3}   Two Enquirer reporters requested information from Respondent

regarding the shooting.       The reporters specifically requested, among other

information, the names of the officers who had been injured along with their

personnel records, an incident report, and the name of the Iron Horsemen member

who had died. When Respondent did not provide all requested information, the

Enquirer made a formal request pursuant to the Act seeking an unredacted copy of

the incident report prepared by the police department, unredacted copies of the two

officers’ personnel files, and an internal affairs report as soon as one became

available.

       {¶4}   Respondent replied to the Enquirer’s request by refusing to provide

unredacted copies of the incident report and personnel files, citing “significant and

ongoing privacy concerns in relation to the physical safety of the Cincinnati police

officers * * *.” Streicher testified in his deposition that it would not be unusual for a

motorcycle club to seek revenge against the police in this situation where one of its

members had died, and, therefore, Streicher had been immediately concerned about

retaliation after the incident. Deposition of Thomas Streicher at 35-36. Streicher’s

concern had been confirmed in the weeks following the shooting after Streicher’s

confidential conversation with a nonparty. Id. at 36. Streicher also stated that an

internal affairs report had not yet been completed.

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       {¶5}   Respondent contends that he has provided the Enquirer with all the

requested documents, except the officers’ identifying information. The Enquirer

filed this mandamus action on December 22, 2010, seeking, pursuant to the Act,

unredacted copies of the documents requested.

                               Ohio Public Records Act

       {¶6}   “Mandamus is the appropriate remedy to compel compliance with R.C.

149.43, Ohio’s Public Records Act.” State ex rel. Cincinnati Enquirer v. Jones-

Kelley, 118 Ohio St.3d 81, 2008-Ohio-1770, 886 N.E.2d 206, ¶5, quoting State ex rel.

Physicians Commt. for Responsible Medicine v. Ohio State Univ. Bd. of Trustees,

108 Ohio St.3d 288, 2006-Ohio-903, 843 N.E.2d 174, ¶6. “In order to be entitled to

a writ of mandamus, the relator must establish a clear legal right to the relief prayed

for, that respondent has a clear legal duty to perform the requested act, and that

relator has no plain and adequate remedy at law.”           State ex rel. Seikbert v.

Wilkinson, 69 Ohio St.3d 489, 490, 1994-Ohio-39, 633 N.E.2d 1128. “R.C. 149.43 is

construed liberally in favor of broad access, and any doubt is resolved in favor of

disclosure of public records.” Jones-Kelly, 2008-Ohio-1770, ¶5, quoting State ex rel.

Cincinnati Enquirer v. Hamilton Cty., 75 Ohio St.3d 374, 376, 1996-Ohio-214, 662

N.E.2d 334.

       {¶7}   R.C. 149.43 defines “public record” as “records kept by any public

office * * *.” Respondent does not dispute that the Cincinnati Police Department is a

public office under the Act. R.C. 149.43 also contains numerous exceptions to the

definition of public record. In withholding the identity of the officers from the

Enquirer’s requested documents, Respondent relies on the exception located in R.C.

149.43(A)(1)(v), which removes from the definition of public record, “[r]ecords the

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                     OHIO FIRST DISTRICT COURT OF APPEALS



release of which is prohibited by state or federal law[.]” “Exceptions to disclosure

must be strictly construed against the custodian of public records, and the burden to

establish an exception is on the custodian.” Hamilton Cty, 75 Ohio St.3d at 376-77,

citing State ex rel. James v. Ohio State Univ. (1994), 70 Ohio St.3d 168, 169, 637

N.E.2d 911, 912.

       {¶8}   Neither party in this case has moved for summary judgment, nor has

Respondent moved to dismiss the complaint for failure to state a claim, thus, this

court sits as a trial court, “weighing the evidence properly before us and rendering a

judgment on the merits of the complaint.” Roberts v. Winkler, 176 Ohio App.3d 685,

692, 2008-Ohio-2843, 893 N.E.2d 534, ¶19.

                   Due Process as an Exception to “Public Record”

       {¶9}   Respondent asserts that withholding the wounded officers’ identities is

justified by the constitutional right recognized in Kallstrom v. City of Columbus

(C.A.6, 1998), 136 F.3d 1055, which was adopted by the Ohio Supreme Court in State

ex rel. Keller v. Cox, 85 Ohio St.3d 279, 1999-Ohio-264, 707 N.E.2d 931, because the

officers and their family members are at risk of serious physical harm, and possibly

even death, due to their involvement in the shooting. Releasing their identities,

Respondent contends, would violate their rights to due process under the Fourteenth

Amendment.

       {¶10} In Kallstrom, the Sixth Circuit Court of Appeals held that the

disclosure of police officers’ personal information to criminal defense counsel

implicated the officers’ fundamental rights under the Due Process Clause.

Kallstrom, 136 F.3d at 1060. In that case, three undercover Columbus police officers

had been involved in an undercover investigation of a gang, which led to the

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prosecution of 41 gang members on drug-related charges. Id. at 1059. In the course

of the prosecution, defense counsel had requested and had received from the city

copies of the officers’ personnel files, pursuant to the Act. Id. The files contained the

officers’ personal information, including their home addresses, telephone numbers,

drivers’ licenses, bank account information, and family members’ names. Id. The

officers then brought an action against the city pursuant to Section 1983, Title 42,

U.S. Code, because of the release of their information. Id. at 1059.

       {¶11} The district court in Kallstrom had entered final judgment for the city,

determining that the officers did not have a constitutionally-protected interest in the

release of their personal information by the government.         On appeal, the Sixth

Circuit reversed the district court’s judgment and held that the officers’ “interests do

indeed implicate a fundamental liberty interest, specifically their interest in

preserving their lives and the lives of their family members, as well as preserving

their personal security and bodily integrity.” Id. at 1062. The Sixth Circuit stated, “it

goes without saying that an individual’s ‘interest in preserving her life is one of

constitutional dimension.’ ” Id. at 1063, quoting Nishiyama v. Dickson Cty. (C.A.6,

1987), 814 F.2d 277, 280 (en banc). The court saw “no reason to doubt that where

disclosure of [the officers’] personal information may fall into the hands of persons

likely to seek revenge upon the officers for their involvement in the [criminal] case,

the City created a very real threat to the officers’ and their family members’ personal

security and bodily integrity, and possibly their lives.” Id.

       {¶12} The court carefully noted that not every release of an officers’ private

information would rise to a constitutional level, “[b]ut where the release of private

information places an individual at substantial risk of serious bodily harm, possibly

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                      OHIO FIRST DISTRICT COURT OF APPEALS



even death, from a perceived likely threat, the magnitude of the liberty deprivation

strips the very essence of personhood.”              Id. at 1064 (internal quotation marks,

ellipses, and citation omitted).

        {¶13} After the Kallstrom court determined that the officers had a

constitutionally-protected right in the nondisclosure of their personal information,

the court applied the strict-scrutiny standard in determining whether the city’s

disclosure of the information was narrowly tailored to serve a compelling public

purpose. Id. In making this determination, the court assumed that the purpose

behind the Act—to shed light on the state government by allowing citizens to access

public records—rose to the level of a compelling public purpose.                     Id. at 1065.

Nevertheless, the court determined that the release of the officers’ personal

information by the city did not narrowly serve that purpose. Id. In reaching this

conclusion, the court reasoned that the requesting party could not have sought the

officers’ personal information “in order to shed light on the internal workings of the

Columbus Police Department.” Id. The Sixth Circuit then remanded the case in part

to the district court.2

        {¶14} A year after the release of the Kallstrom decision, the Ohio Supreme

Court released its decision in Keller, which relied on Kallstrom to affirm the

dismissal of a mandamus action brought pursuant to the Act. In Keller, a federal

public defender had requested a police officer’s personnel files containing that

officer’s family members’ names, telephone numbers, medical and beneficiary

2 The district court had found initially that the release of the officers’ addresses, telephone
numbers, drivers’ licenses, and family members’ information created a substantial safety risk.
The district court, however, had not made any findings as to whether the disclosure of polygraph
tests, social security numbers, and financial account information “[p]ut the officers at substantial
risk of serious bodily harm.” Kallstrom, supra, at 1063. Thus, the Sixth Circuit remanded for
further findings with respect to the release of this information.

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                     OHIO FIRST DISTRICT COURT OF APPEALS



information. Keller, 85 Ohio St.3d at 281. In affirming the denial of the requested

writ, the supreme court reasoned that the officer’s personal information “should not

be available to a defendant who might use the information to achieve nefarious

ends.” Id. The court reasoned that the protection of the officer’s constitutional

rights, as recognized in Kallstrom, required such as result, and that “there must be a

‘good sense’ rule when such information about a law enforcement officer is sought by

a defendant in a criminal case.” Id. The court also noted that a defendant in a

criminal case could still access information regarding an officer’s job performance or

discipline in internal affairs files. Id.

                                      Applying Kallstrom

       {¶15} Respondent relies on Kallstrom in withholding the officers’ identities

from the requested documents citing the substantial risk to the officers’ safety and

the safety of their families. Kallstrom and Keller both dealt with public-records

requests made by attorneys for criminal defendants—not members of the press. The

Enquirer contends that Kallstrom requires an inquiry into the threat posed by the

requesting party. Because the Enquirer journalists pose no direct threat to the

officers’ safety, the Enquirer argues that the holding in Kallstrom does not apply.

       {¶16} In support of the Enquirer’s contention, it relies in part on a passage

from Barber v. Overton (C.A.6, 2007), 496 F.3d 449, in which the Sixth Circuit

stated that “Kallstrom created a narrowly tailored right, limited to circumstances

where the information disclosed was particularly sensitive and the persons to whom

it was disclosed were particularly dangerous vis-a-vis the plaintiffs.” Id. at 456

(emphasis in original). The Enquirer argues that the Kallstrom test requires a court

to focus on the requesting party, and not the documents requested, in determining

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                     OHIO FIRST DISTRICT COURT OF APPEALS



whether a threat exists. The Enquirer contends that because it poses no direct

danger to the officers’ safety, Kallstrom does not create a bar to the release of the

officers’ identities to the Enquirer.

       {¶17} We decline to adopt the Enquirer’s limited application of the holding

in Kallstrom. In Kallstrom, in addition to the criminal defense attorney’s public-

records request, the Police Officers for Equal Rights organization had made a similar

request for the officers’ personal information. Kallstrom, 136 F.3d at 1064. The

Sixth Circuit reasoned that, although the district court had found that the

organization itself did not pose a threat to the officers, disclosure even to that

organization might pose an increased risk to the officers. Id. Therefore, the Sixth

Circuit remanded the case to the district court to consider, in light of its opinion, the

“severity of risks inherent in disclosure of information to the * * * organization[.]”

Id.

       {¶18} In State ex rel. McCleary v. Roberts, 88 Ohio St.3d 365, 2000-Ohio-

345, 725 N.E.2d 1144, the appellee had requested information regarding an

identification program maintained by the Columbus Parks and Recreation

Department.      Id. at 366.     The identification program consisted of personal

information, including addresses and photographs, of the children who had attended

city-run pools. Id. at 368. The court held that the identification program did not

meet the definition of “record” under the Act. Id. at 370. The court reasoned further

that even if the identification program had been a “record,” the requested

information was exempt from disclosure pursuant to Kallstrom and Keller. Id. at

371. The court determined that children have a fundamental right to be free from

abuse, and that the disclosure of the information would have placed the children “at

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                   OHIO FIRST DISTRICT COURT OF APPEALS



risk of irreparable harm, albeit not necessarily by appellee.”       Id. at 371.   The

McCleary court applied the Kallstrom analysis even though the requesting party

posed no threat to the subjects of the records request. As a result, we conclude that

the holding in Kallstrom may apply to bar disclosure of information requested from

a public official, even though the requesting party poses no direct threat to the

subjects whose information is contained in the requested records.

                                       Kallstrom II

       {¶19} The Enquirer also suggests that Kallstrom’s holding does not extend to

news organizations, relying on the Southern District of Ohio’s decision on remand in

Kallstrom v. City of Columbus (S.D. Ohio 2001), 165 F.Supp.2d 686 (“Kallstrom II”).

In Kallstrom II, various media organizations intervened in the case after the city of

Columbus, citing Kallstrom, had denied the organizations’ requests for the officers’

home addresses, answers to personal history questions, and other information

contained in police personnel records. Id. at 688. The district court held that the

city had violated the First Amendment by denying the media organizations’ public

records request. Id. at 695. The court stated that “[t]o deny members of the press

access to public information solely because they have the ability to disseminate it

would silence the most important critics of governmental activity. This not only

violates the Constitution, but eliminates the very protections the Founders

envisioned a free press would provide.” Id. at 688.

       {¶20} Kallstrom II is clearly distinguishable. In Kallstrom II, the city denied

the media organizations’ requests for the officers’ information because of the

organizations’ ability to disseminate that information to the public, including to the

criminal defendants who posed the safety risk.        Id. at 697.   The district court

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                    OHIO FIRST DISTRICT COURT OF APPEALS



reasoned that although the First Amendment does not create “a right of access to

government information or sources of information within the government’s

control[,] [t]he Constitution, however, assures ‘the public and the press equal access

once the government has opened its doors.’ ” Id., quoting Houchins v. KQED, Inc.

(1978), 438 U.S. 1, 15-16, 98 S.Ct. 2588 (internal citation omitted). Thus, the district

court reasoned, “the government may not single out the press to bear special burdens

without violating the First Amendment.” Kallstrom II, 165 F.Supp.2d at 697, citing

Minneapolis Star & Tribune Co. v. Minnesota Commr. of Revenue (1983), 460 U.S.

575, 585-86, 103 S.Ct. 1365. The district court applied these First Amendment

principles to the media organizations’ requests and determined that the city had

treated the organizations differently because of their ability to disseminate the

information, which “suggest[ed] that the same records would have been provided to

anyone who did not have this capability[,]” such as any other member of the public.

Kallstrom II, 165 F.Supp.2d at 699.

       {¶21} We recognize that the media serve an important role in our society as

government watchdogs, and we are mindful of the First Amendment concerns that

may be raised when a government entity refuses to disclose information to a member

of the press. But unlike the city’s actions in Kallstrom II, Respondent’s failure to

disclose the identities of the officers involved in the Iron Horsemen shooting to the

Enquirer does not violate the First Amendment. The disparate treatment of the

media organizations as compared to any other member of the public, which occurred

in Kallstrom II, is not present in this case.      The record does not reflect that

Respondent distinguished between the Enquirer and any other member of the public

in refusing to release the requested information. Therefore, we conclude that the

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                     OHIO FIRST DISTRICT COURT OF APPEALS



First Amendment is not implicated by Respondent’s failure to disclose the records to

the Enquirer.

                                 The Journalist Exception

       {¶22} The Enquirer argues that Kallstrom’s holding does not apply to its

journalists because the Act was amended to account for the holding in Kallstrom.

Further, the Enquirer argues that the Act expressly permits journalists to access the

information requested.      In 2007, the Act was amended, and, pursuant to R.C.

149.43(A)(7), certain categories of police officers’ personal information, including

residential and familial information, are now specifically excluded from the

definition of “public record.”      In R.C. 149.43(B)(9), the Act contains what the

Enquirer refers to as a “journalist exception,” which the Enquirer contends allows

journalists to examine police officers’ personnel records.

       {¶23} R.C. 149.43(B)(9) provides, in part, that a public office must disclose

the residential address of a peace officer to a journalist upon written request. The

journalist exception, however, does not create a broad right of access to police

officers’ personnel files. Moreover, the statute cannot supplant the right recognized

in Kallstrom—a right derived from the federal constitution, see, e.g., In re D.B., 129

Ohio St.3d 104, 2011-Ohio-2671, 950 N.E.2d 528, ¶29-31, and explicitly recognized

by the Ohio Supreme Court in Keller. Because we have determined that the holding

in Kallstrom may apply despite the journalist exception in the Act, we next consider

whether Respondent has met his burden in demonstrating that Kallstrom applies to

the disclosure of the officers’ identities.




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                    OHIO FIRST DISTRICT COURT OF APPEALS



                          The Officers’ Constitutional Rights

       {¶24} In applying Kallstrom, a court must determine whether the public

entity has met its burden in showing that the release of the requested information

places an individual at substantial risk of physical harm from a perceived likely

threat. Kallstrom, 136 F.3d at 1064. In this case, Respondent contends that the

release of the officers’ identities would create a safety risk to those officers and their

families from retaliatory actions. Respondent primarily relies on the testimony of

Streicher and affidavits from the two wounded officers, which were filed under seal.

       {¶25} The Enquirer alleges that Respondent has not carried his burden in

showing the existence of a threat.       The Enquirer analogizes the case at bar to

Kallstrom II where the district court ultimately concluded that the officers did not

have a constitutional interest at stake in the disclosure of their polygraph tests, social

security numbers, and financial account information, because the evidence in the

record suggested that the threat to those officers by the criminal defendants no

longer existed. Kallstrom II, 165 F.Supp.2d at 695.

       {¶26} The Enquirer makes various arguments in response to Respondent’s

assertion that the officers’ fundamental rights are implicated by disclosure of their

identities. For example, the Enquirer contends that (1) the officers in this case were

not “embedded” undercover officers actively investigating an ongoing matter, but

were merely plainclothes officers who responded to JD’s Honky Tonk because they

were most readily available; (2) no history of violence exists between the Iron

Horsemen and the Cincinnati police; (3) the police department’s investigation had

concluded and no retaliation attempts had been made; (4) the plainclothes officers

involved in the shooting were at no greater risk of harm than the uniformed officers;

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                     OHIO FIRST DISTRICT COURT OF APPEALS



and (5) Respondent relies on portions of Streicher’s testimony that constitute

inadmissible hearsay evidence, which cannot be considered in determining whether

the officers have a constitutional right implicated by the disclosure of their

identities.3

       {¶27} As to the Enquirer’s argument that Respondent relies on inadmissible

hearsay, because we act as the trial court in this original action, we consider only

admissible evidence in determining whether an exception to the Act applies. Loc.R.

33.2. The portion of Streicher’s testimony to which the Enquirer objects have been

filed under seal pursuant to a protective order from this court. In general, the

confidential portions of Streicher’s testimony, which the Enquirer argues is

objectionable, involves a conversation that Streicher had with a nonparty after the

shooting occurred.

       {¶28} We are not convinced by the Enquirer’s argument that Streicher’s

testimony regarding his conversation with a nonparty constitutes hearsay. Evid.R.

801 defines hearsay as “[a] statement, other than one made by the declarant while

testifying * * *, offered in evidence to prove the truth of the matter asserted.”

Because Kallstrom speaks of a “perceived likely threat,” that portion of Streicher’s

deposition testimony in which he recounts a conversation with a nonparty (and what

that nonparty had been told by others) can properly be considered by this court to

illustrate Streicher’s perception of a threat. When viewed in this manner, Streicher’s

testimony has not been offered for the truth of the matter asserted, i.e. to show that a



3We note that the Enquirer makes other arguments in support of its contention that Respondent
has not met his burden in establishing a threat under Kallstrom, and although we have
considered those arguments, we will not discuss them in this decision because they rely on
confidential portions of Streicher’s deposition testimony.

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                      OHIO FIRST DISTRICT COURT OF APPEALS



threat actually exists, but to show Streicher’s perception that a threat exists.

Therefore this testimony does not constitute hearsay.

        {¶29} Further, Respondent has provided sufficient evidence to justify his

reliance on the holding in Kallstrom even in the absence of the challenged testimony.

Fourteen Cincinnati police officers were involved in a deadly and injurious gun battle

with the Iron Horsemen—a known outlaw group—that left one of the Iron Horsemen

members dead and two officers wounded. As a result of the shootout, only one Iron

Horsemen member was charged on a gun-related offense, and so the wounded

officers have not been identified in any court proceedings.                    Respondent has

continued to conceal the officers’ identities from the public.

        {¶30} Finally, Streicher, the former police chief for the city, testified that he

perceives that a serious threat exists to those officers and their families, which is

uncontroverted in the record. The wounded officers also filed affidavits in support of

nondisclosure of their identities. The evidence in the record sufficiently establishes

that disclosure of the officers’ identities to the public would place the officers and

their family members at substantial risk of serious physical harm from a perceived

likely threat, which implicates the officers’ fundamental rights under the Due Process

Clause of the Fourteenth Amendment.4

                                       Strict Scrutiny

        {¶31} Even though we have determined that the officers’ fundamental rights

are implicated by the disclosure of their identities, Respondent’s disclosure will not

violate the Due Process Clause if the disclosure is narrowly tailored to further a

4 We do not reach the question of whether the Ohio Constitution confers the same or greater
rights than provided by the United States Constitution. See, e.g., State v. Gardner, 118 Ohio St.3d
420, 2008-Ohio-2787, 889 N.E.2d 995, ¶76.

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                    OHIO FIRST DISTRICT COURT OF APPEALS



compelling state interest.    Kallstrom, 136 F.3d at 1064.       Just as the court in

Kallstrom, “[w]e assume that the interests served by allowing public access to agency

records rises to the level of a compelling state interest.” Id. at 1065. Therefore, we

must balance the officers’ interest as asserted by Respondent in avoiding disclosure

with the public’s interest in accessible government. Id. at 1061, citing J.P. v. DeSanti

(C.A.6, 1981), 653 F.2d 1080, 1091. We recognize that in public-records cases, the

General Assembly generally sets the balance between public-policy concerns and

private interests, see, e.g., State ex rel. WBNS TV, Inc. v. Dues, 101 Ohio St.3d 406,

2004-Ohio-1497, 805 N.E.2d 1116, ¶36; however, such balancing in this instance is

properly conducted by courts pursuant to Kallstrom.

       {¶32} The Enquirer asserts that the officers’ identities should be unveiled to

the public to shed light on how the incident at JD’s Honky Tonk started, and whether

the police acted appropriately. The Enquirer further contends that the public has a

right to understand the police department’s decision-making process with regard to

gang violence. The parties’ counsel agreed at oral argument that all the requested

documents had been disclosed, except that the officers’ identities had been redacted.

As a result, we fail to see how Respondent’s disclosure of the individual officers’

identities, in light of Respondent’s numerous other disclosures, would further

answer the Enquirer’s questions.      Nevertheless, we determine that the officers’

interest in protecting themselves and their families from serious bodily harm

outweighs the public’s interest in uncovering the individual officers’ names.

Therefore, the disclosure of the officers’ identities in this situation is not narrowly

tailored to further achieve the public purpose of examining the inner-workings of the

government.

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       {¶33} In conclusion, we hold that the exception articulated by the court in

Kallstrom applies to the officers’ identifying information in the records requested by

the Enquirer, and Respondent is not required to disclose the identity of the officers

to the Enquirer. As a result, the Enquirer’s requested writ is denied.

                                       Attorney Fees

       {¶34} The Enquirer also requests attorney fees for pursuing this action.

Because we have determined that the Enquirer is not entitled to the requested writ of

mandamus under the Act, its request for attorney fees is denied. See, e.g., State ex

rel. Cranford v. Cleveland, 103 Ohio St.3d 196, 2004-Ohio-4884, 814 N.E.2d 1218,

¶25. Moreover, courts exercise discretion in awarding attorney fees to successful

requesting parties in public-records cases, and “[i]n exercising discretion in this

determination, ‘courts consider the reasonableness of the government’s failure to

comply with the public records request and the degree to which the public will

benefit from release of the records in question.’ ”        Dues, 2004-Ohio-1497, ¶47,

quoting, State ex rel. Wadd v. Cleveland (1998), 81 Ohio St.3d 50, 54, 1998-Ohio-

444, 689 N.E.2d 25. Both parties and their counsel in this case performed admirably

and acted reasonably in light of the circumstances, and even if the Enquirer had been

granted the requested writ, attorney fees would not be proper.

                                                                             Writ Denied.

HILDEBRANDT, P.J., and SUNDERMANN, J., concur.


Please Note:
       The court has recorded its own entry on the date of the release of this opinion.




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