[Cite as Gannett GP Media, Inc. v. Ohio Dept. of Pub. Safety, 2017-Ohio-4248.]




GANNETT GP MEDIA, INC.,                                Case No. 2017-00051-PQ
D/B/A, THE CINCINNATI ENQUIRER
                                                       Judge Patrick M. McGrath
       Requester
                                                       DECISION
       v.

OHIO DEPARTMENT OF
PUBLIC SAFETY

       Respondent


        {¶1} Before the court are (1) objections filed by requester Gannett GP Media,
Inc., dba, The Cincinnati Enquirer (GP Media) to Special Master Jeffery W. Clark’s
report and recommendation issued on April 24, 2017, (2) objections filed by respondent
Ohio Department of Public Safety (ODPS) to Special Master Clark’s report and
recommendation of April 24, 2017, and (3) a motion to strike affidavits and exhibits filed
by GP Media.
        {¶2} As discussed below, the court determines that GP Media’s motion to strike
should be granted, that GP Media’s objections should be overruled, and that ODPS’s
objections should be overruled.             The court further determines that Special Master
Clark’s report and recommendation should be adopted, including the special master’s
findings of fact and conclusions of law contained in the report and recommendation.

                                              Background
        {¶3} On January 17, 2017, GP Media filed a complaint against ODPS that
alleged a denial of access to public records in violation of R.C. 149.43(B). The court
referred the case to mediation. After mediation failed to resolve all disputed issues, the
court returned the case to the docket of Special Master Jeffery W. Clark. On April 24,
2017, Special Master Clark issued a report and recommendation. In his report and
Case No. 2017-00051-PQ                    -2-                                DECISION


recommendation Special Master Clark noted that GP Media made a public-records
request to ODPS for:

      1. A list of the names and ranks of the 37 Ohio troopers sent to North
      Dakota via an agreement with the Emergency Managemet [sic] Assistance
      Compact (EMAC).
      2. Any and all communication issued or received by any employee of the
      Ohio State Highway Patrol, regarding the deployment of these officers.
      3. Any document that outlines the agreement between the EMAC and the
      OSHP regarding the action of sending the 37 troopers.
      4. Any OSHP bylaws or procedures which govern agreements with EMAC.

(Report and Recommendation, 2.) In the conclusion of his report and recommendation
Special Master Clark made findings, determinations, and recommendations, stating:

             a. Upon consideration of the pleadings and attachments, I find that
      GP Media has failed to establish by clear and convincing evidence that
      DPS violated division (B) of R.C. 149.43 when it denied GP Media’s
      Request No. 2 for all communication issued or received by all employees
      of the OSHP regarding the deployment of Troopers to North Dakota in
      2016. The request was ambiguous, overly broad, and required a search or
      research instead of reasonably identifying the records sought.
      Accordingly, I recommend that the court issue an order DENYING
      GP Media's claim for relief based on Request No. 2.

              b. I further find that GP Media has failed to establish by clear and
      convincing evidence that DPS violated division (B) of R.C. 149.43 when it
      denied GP Media's Request No. 4 for any OSHP bylaws or procedures
      which govern agreements with EMAC. DPS presented unrebutted
      evidence that no records responsive to this request exist. Accordingly, I
      recommend that the court issue an order DENYING GP Media’s claim for
      relief based on Request No. 4.

             c. I further find that GP Media has established by clear and
      convincing evidence that DPS violated division (B) of R.C. 149.43 when,
      following their return from deployment, it withheld the names of the 37
      Troopers deployed to North Dakota. I further find that GP Media has
Case No. 2017-00051-PQ                     -3-                               DECISION


      established by clear and convincing evidence that DPS violated division
      (B) of R.C. 149.43 when it withheld the EMAC Agreement/REQ-A in its
      entirety instead of redacting only the portions that meet the definition of
      “security record” in R.C. 149.433(A)(1). Accordingly, I recommend that the
      court issue an order GRANTING GP Media’s claim for relief based on
      Request No. 1, and GRANTING IN PART GP Media’s claim for relief
      based on Request No. 3, and which 1) directs the DPS to provide GP
      Media with a copy of the EMAC Agreement/REQ-A, subject to redaction of
      items indicated in the ATTACHMENT hereto, and 2) provides that GP
      Media is entitled to recover from DPS the costs associated with this
      action, including the twenty-five dollar filing fee. R.C. 2743.75(F)(3)(b).
After Special Master Clark issued his report and recommendation, both GP Media and
ODPS challenged the report and recommendation by filing objections on May 8, 2017,
and May 5, 2017, respectively. With its objections, ODPS filed additional evidence—
i.e., affidavits supplementing previously submitted affidavits, and an updated report of
social media threats compiled by a criminal intelligence analyst with the North Dakota
State and Local Intelligence Center pertaining to a dispute regarding a pipeline in North
Dakota. Both GP Media and ODPS responded to the filed objections, with GP Media
filing a response on May 15, 2017, and ODPS filing a response on May 19, 2017.
      {¶4} On May 9, 2017, GP Media moved the court to issue an order striking the
affidavits and exhibits attached to ODPS’s objections. On May 19, 2017, ODPS filed a
response to GP Media’s motion to strike. Five days later—on May 24, 2017—GP Media
moved the court for leave to file a reply to ODPS’s response to GP Media’s motion to
strike. The court denied GP Media’s motion for leave to file a reply.

                                      Discussion

   I. GP Media’s Motion to Strike
      {¶5} GP Media asks the court to issue an order striking the affidavits and exhibits
that ODPS attached to its objections. GP Media asserts that the affidavits “are made up
primarily of inadmissible hearsay,” that the affidavit of Cody Larson “in fact contains,
with one exception, materials that existed before the ODPS submitted its response on
Case No. 2017-00051-PQ                       -4-                                 DECISION


March 8,” and the affidavits “discuss irrelevant information that is not probative and is
introduced solely for its inflammatory content.”
       {¶6} In response, ODPS maintains that it “is within the discretion of the Court to
consider supplemental affidavits and exhibits, and the statute governing this litigation,
R.C. 2743.75, does not prohibit a party from filing supplemental information with
objection(s).” ODPS contends that supplemental affidavits “are necessary based on the
burden of proof set forth by the Special Master, and reiterate and update evidence that
demonstrated a perceived risk of substantial harm to the Troopers has continued since
the Troopers’ return to Ohio.” ODPS maintains that the supplemental affidavits “contain
the witnesses’ personal knowledge and expert opinions, which is not ‘hearsay,’
irrelevant, or speculative evidence.” In an attendant memorandum in support, relying on
Civ.R. 53(D)(4)(d), ODPS asserts that this court may consider additional evidence with
a party’s objections to a report and recommendation.
       {¶7} Civ.R. 53(D)(4)(d) pertains to actions that a court may take on objections to
a magistrate’s decision.     It provides: “If one or more objections to a magistrate’s
decision are timely filed, the court shall rule on those objections. In ruling on objections,
the court shall undertake an independent review as to the objected matters to ascertain
that the magistrate has properly determined the factual issues and appropriately applied
the law. Before so ruling, the court may hear additional evidence but may refuse to do
so unless the objecting party demonstrates that the party could not, with reasonable
diligence, have produced that evidence for consideration by the magistrate.” (Emphasis
added.) Thus, even if Civ.R. 53(D)(4) were to apply in this circumstance, it is within this
court’s discretion whether to consider the evidence that ODPS has proffered with its
objections.
       {¶8} It is true that R.C. 2743.75 does not contain a provision addressing whether
a party who objects to a special master’s report and recommendation may file
supplemental evidence with the party’s objections. However, when a party in a public-
Case No. 2017-00051-PQ                      -5-                                DECISION


records dispute timely objects to a special master’s report and recommendation, this
court, in accordance with R.C. 2743.75(F)(2), is required to issue a final order that
adopts, modifies, or rejects the special master’s report and recommendation.
See R.C. 2743.75(F)(2). In such a circumstance, R.C. 2743.75(F)(2) requires this court
to function as a reviewing court for the purpose of determining objections before it.
In State v. Hooks, 92 Ohio St.3d 83, 83-84, 748 N.E.2d 528 (2001), the Ohio Supreme
Court stated that “a reviewing court cannot add matter to the record before it that was
not a part of the trial court’s proceedings, and then decide the appeal on the basis of the
new matter. See State v. Ishmail (1978), 54 Ohio St.2d 402, 8 O.O.3d 405, 377 N.E.2d
500.” The court concludes that the principle discussed in Hooks applies in this instance.
Applying this principle, this court therefore should not add matter to the record before it
that was not part of the record before the special master, and then decide a party’s
objection or objections to the special master’s report and recommendation on the basis
of the new matter. The court finds that, in this instance, by filing additional evidence
with its objections and asking the court to consider this additional evidence, ODPS
improperly attempts to add matter to the record that was not part of the proceedings
before the special master, and it improperly asks the court to decide the parties’
objections, at least in part, on the basis of this new matter. The court concludes that
GP Media’s motion to strike should be granted and that attachments to ODPS’s
objections that were not before the special master should be stricken.

   II. GP Media’s and ODPS’s Objections

       {¶9} R.C. 2743.75(F)(2) governs objections to a report and recommendation of a
special master of this court related to a dispute alleging a denial of access to public
records. Pursuant to R.C. 2743.75(F)(2):
       d. Either party may object to the report and recommendation within seven
          business days after receiving the report and recommendation by filing
          a written objection with the clerk and sending a copy to the other party
          by certified mail, return receipt requested. Any objection to the report
Case No. 2017-00051-PQ                      -6-                                DECISION


          and recommendation shall be specific and state with particularity all
          grounds for the objection. If neither party timely objects, the court of
          claims shall promptly issue a final order adopting the report and
          recommendation, unless it determines that there is an error of law or
          other defect evident on the face of the report and recommendation. If
          either party timely objects, the other party may file with the clerk a
          response within seven business days after receiving the objection and
          send a copy of the response to the objecting party by certified mail,
          return receipt requested. The court, within seven business days after
          the response to the objection is filed, shall issue a final order that
          adopts, modifies, or rejects the report and recommendation.
Upon review, the court finds that GP Media’s and ODPS’s objections and the responses
filed by GP Media and ODPS to the other party’s objections are timely filed. Because
the parties’ objections and responses are timely filed, the court shall consider them.
   A. GP Media’s Two Objections
       {¶10} GP Media objects to (1) the special master’s “conclusion that Requester’s
public records request for ‘[a]ny and all communication issued or received by any
employee of the Ohio State Highway Patrol, regarding the deployment of these officers’
* * * was not ‘a proper request that reasonably identified the records sought’ under R.C.
149.43(B)” (footnote omitted), and (2) the special master’s finding that “ODPS complied
with its obligation under R.C. 149.43(B)(2) to provide it with information regarding ‘the
manner in which records are maintained…and accessed in the ordinary course’ of
ODPS’s duties.”
   1. GP Media’s Objection No. 1
       {¶11} By its first objection, GP Media challenges the special master’s
determination that GP Media “has failed to show by clear and convincing evidence that
Request No. 2 was a proper request that reasonably identified the records sought.”
(Report and Recommendation, 8.)          GP Media urges that the special master’s
determination “is not in accord with the Supreme Court’s precedent governing the
degree of specificity required in a request, and is thus erroneous as a matter of law.
See, e.g., State ex rel. Carr v. London Corr. Inst. (“Carr”), 144 Ohio St.3d 211, 2015-
Case No. 2017-00051-PQ                     -7-                                  DECISION


Ohio-2363, 41 N.E.3d 1203 (holding that inmate’s public records requests were not
overly broad or ambiguous because there was ‘no indication that the request [was] not
readily amenable to the method of retrieval used by the government agency’).”
      {¶12} In support of its first objection, GP Media calls the court’s attention to Carr.
In that case, James M. Carr, Sr., an inmate, made several public-records requests of
London Correctional Institution (LCI) that, except for one, LCI denied. Carr filed an
action in mandamus in an appellate court; LCI moved for summary judgment; the
appellate court granted LCI’s motion for summary judgment; and the appellate court
denied Carr’s request for a writ of mandamus. Carr appealed to the Ohio Supreme
Court. On appeal, the Ohio Supreme Court reversed the appellate court’s judgment,
issued a writ of mandamus, and remanded the cause. Carr at ¶ 47. In a per curiam
opinion the Supreme Court of Ohio determined that LCI had not shown that Carr’s
requests were ambiguous, overbroad, or unduly burdensome and that Carr complied
with requirements of R.C. 149.43(C)(1). Carr at ¶ 2.
      {¶13} In reaching a determination that one of Carr’s requests was not ambiguous,
the Supreme Court stated: “Carr’s request identified a particular record authored by a
named individual, specifying to whom it was sent and a time frame during which it was
sent. He provided unrefuted evidence by way of his affidavit that both Chaplain Cahill
and an employee of the mailroom were able to verify the existence of the record.” Carr
at ¶ 22. And in determining that another request was not overbroad, the Supreme Court
stated: “Carr did not make a request for extremely broad categories of records, such as
‘litigation files’ or ‘complaint files,’ but rather made a request for communications
between a specific individual and a specific office within a reasonably defined time
frame.” Carr at ¶ 27.
      {¶14} Here, in its second request GP Media sought: “Any and all communication
issued or received by any employee of the Ohio State Highway Patrol, regarding the
deployment of these officers.” GP Media’s second request is distinguishable from Carr
Case No. 2017-00051-PQ                       -8-                                DECISION


because, unlike Carr’s request, GP Media has not identified a particular record authored
by a named individual, specifying to whom it was sent and a time frame during which it
was sent. Also, unlike the requester in Carr, by its second request GP Media has not
made a request for communications between a specific individual and a specific office
within a reasonably defined time frame. The court finds GP Media’s first objection is
unpersuasive. The court overrules GP Media’s first objection.
   2. GP Media’s Objection No. 2
       {¶15} In its second objection, GP Media “objects to the Special Master’s finding
that ODPS complied with its obligation under R.C. 149.43(B)(2) to provide it with
information regarding ‘the manner in which records are maintained…and accessed in
the ordinary course’ of ODPS’s duties. (Report at 7.)” GP Media states: “Other than
offering to ‘help’ Requester narrow the request, ODPS did not provide Requester with
information about how it maintained records about the North Dakota deployment.”
Thus, by its second objection, GP Media effectively objects to a factual finding of the
special master. See generally Black’s Law Dictionary 749 (10th Ed. 2014) (finding of
fact is a “determination by a judge, jury, or administrative agency of a fact supported by
the evidence in the record * * *”).
       {¶16} A special master—also termed magistrate; referee; commissioner; or
hearing officer—is defined as a judicial officer, usually an attorney, “who serves in an
appointive capacity at the pleasure of an appointing judge, and whose actions and
decisions are reviewed by that judge.” Black’s Law Dictionary, supra at 1257. As a
matter of definition, the terms special master and magistrate therefore are equivalent.
In Siegel v. Univ. of Cincinnati College of Medicine, 2015-Ohio-441, 28 N.E.3d 612,
¶ 12 (10th Dist.) the Tenth District Court of Appeals discussed the standard that applies
to this court’s review of a magistrate’s determination, stating:
              e. “A magistrate is an arm of the court, not a separate judicial entity
       with independent judicial authority and duties.” State ex rel. DeWine v.
       Ashworth, 4th Dist. No. 11CA16, 2012-Ohio-5632, ¶ 38. The Court of
Case No. 2017-00051-PQ                       -9-                                 DECISION


       Claims still must “undertake an independent review as to the objected
       matters to ascertain that the magistrate has properly determined the
       factual issues and appropriately applied the law.” Civ.R. 53(D)(4)(d). The
       court retains the ultimate authority and responsibility over the magistrate’s
       findings and rulings. Hartt v. Munobe, 67 Ohio St.3d 3, 5-6 (1993).
       Appellants’ suggestion that a magistrate, whether by individual capacity of
       the magistrate or by authorization from the court, is incapable of deciding
       the facts and weighing the credibility of witnesses, lacks merit. In any
       event, “the court remains the ultimate finder of fact, even on matters of
       credibility.” DeWine at ¶ 37. “Although the trial court may appropriately
       give weight to the magistrate’s assessment of witness credibility in view of
       the magistrate’s firsthand exposure to the evidence, the trial court must
       still independently assess the evidence and reach its own conclusions.”
       Sweeney v. Sweeney, 10th Dist. No. 06AP-251, 2006-Ohio-6988, ¶ 15,
       citing DeSantis v. Soller, 70 Ohio App.3d 226, 233 (10th Dist.1990). * * *.
And in In re A.J.S., 120 Ohio St.3d 185, 2008-Ohio-5307, 897 N.E.2d 629, ¶ 45, the
Ohio Supreme Court stated: “It is well settled that ‘ “[t]he trial judge is best able to view
the witnesses and observe their demeanor, gestures and voice inflections, and use
these observations in weighing the credibility of the proffered testimony.” ’ State v.
Amburgey (1987), 33 Ohio St.3d 115, 117, 515 N.E.2d 925, quoting Seasons Coal Co.
v. Cleveland (1984), 10 Ohio St.3d 77, 80, 10 OBR 408, 461 N.E.2d 1273.” Based on
Siegel and In re A.J.S. it follows therefore that a special master in a public-records
dispute under R.C. 2743.75 is capable of deciding the facts and weighing the evidence,
and the court may give weight to a special master’s assessment of the credibility of the
evidence before him or her.
       {¶17} Pursuant to R.C. 149.43(B)(2), if a requester “makes an ambiguous or
overly broad request or has difficulty in making a request for copies or inspection of
public records under this section such that the public office or the person responsible for
the requested public record cannot reasonably identify what public records are being
requested, the public office or the person responsible for the requested public record
may deny the request but shall provide the requester with an opportunity to revise the
request by informing the requester of the manner in which records are maintained by
Case No. 2017-00051-PQ                   -10-                                 DECISION


the public office and accessed in the ordinary course of the public office’s or person’s
duties.” Here, Special Master Clark described ODPS’s interactions with GP Media,
noting:
              f. After DPS exercised its right to deny Request No. 2 as
      ambiguous and overly broad, it invited GP Media to revise the request,
      and repeatedly offered to discuss the request to help GP Media clarify the
      records sought. DPS advised that it did not have the capability to search
      department email using the terms given in Request No. 2. (Casey letter
      of December 2, 2016.) DPS voluntarily provided GP Media with 39 pages
      of records previously produced to a different requester in response to a
      narrower request. (Compl. Attachments, pp. 5-43.) DPS’s quotation of this
      narrower request provided an example to GP Media of reasonable
      identification of email records, and the court takes notice that requester
      was assisted in correspondence by experienced public records legal
      counsel. I conclude that DPS sufficiently met its obligation to provide
      GP Media with the opportunity and information to revise this request.
(Report and Recommendation, 8.)
      {¶18} Upon review, the court determines that the special master did not err when
he found that DPS “sufficiently met its obligation to provide GP Media with the
opportunity and information to revise” its request.   The court overrules GP Media’s
second objection.

   B. ODPS’s Two Objections
      {¶19} ODPS asks the court to modify the special master’s report and
recommendation and enter a judgment ordering the names and identifying information
of 37 state troopers to be withheld “pursuant to R.C. 149.43(A)(1)(v) and/or R.C.
149.433(A)(1).” ODPS presents two objections for the court’s determination:

   (1) “The Special Master erred in concluding that the list of names of the 37 Troopers
   is no longer exempt under the Troopers’ Fourteenth Amendment right to privacy
   following the Troopers’ return to Ohio,” and
   (2) “The Special Master erred in concluding that the list of names of the 37 Troopers
   is no longer exempt as a security record under R.C. 149.433(A)(1) following the
   Troopers’ return to Ohio.”
Case No. 2017-00051-PQ                      -11-                                  DECISION


       {¶20} In opposition, GP Media asserts that ODPS’s objections “attempt to
interject into this proceeding new evidence and arguments not considered by the
Special Master in his Report and Recommendation (‘Report’).” GP Media states:
“Requester has submitted this Response to make clear its position regarding the merits
of Respondent’s Objections, and fully incorporates the substantive arguments made in
its Motion to Strike requesting that the Court overrule the Objections. Requester further
asks that once the Court rules on the Motion to Strike, that it permit Requester an
additional 7 business days from the later of Requester’s receipt of the Court’s decision,
or refiled Objections, to submit a comprehensive Response.”
       {¶21} Notably, in a response in opposition—not by motion—GP Media asks for
an additional seven business days to submit a comprehensive response. According to
Civ.R. 7(B)(1), an application to the court for an order “shall be by motion which, unless
made during a hearing or a trial, shall be made in writing.” (Emphasis added.) Because
GP Media has not made its request by written motion, the court finds that GP Media’s
request for an additional seven business days to submit a comprehensive response is,
as a matter of civil procedure, improper. Even assuming for the sake of argument that
GP Media’s request were procedurally proper and that the request for an additional
seven business days to submit a comprehensive response were granted by the court,
the court determines that such a ruling would contravene R.C. 2743.75(F)(2), which
requires this court to issue a final order within seven business days after a response to
an objection is filed. See R.C. 2743.75(F)(2) (“The court, within seven business days
after the response to the objection is filed, shall issue a final order that adopts, modifies,
or rejects the report and recommendation”).        The court concludes that GP Media’s
request for additional time to submit a “comprehensive Response” is improper, as a
matter of civil procedure, and it is incompatible with R.C. 2743.75(F)(2).
Case No. 2017-00051-PQ                      -12-                                DECISION


   1. ODPS’s Objection No. 1
       {¶22} By its first objection, ODPS asks the court to determine that the special
master erred when he concluded that the list of names of 37 troopers “is no longer
exempt under the Troopers’ Fourteenth Amendment right to privacy” following the
troopers’ return to Ohio from deployment in North Dakota.
       {¶23} In State ex rel. Quolke v. Strongsville City Sch. Dist. Bd. of Edn., 142 Ohio
St.3d 509, 2015-Ohio-1083, 33 N.E.3d 30, ¶ 29, the Ohio Supreme Court instructed that
“in general, a court is to consider the facts and circumstances existing at the time that it
makes its determination on a writ of mandamus, not at some earlier time. State ex rel.
Pressley v. Indus. Comm., 11 Ohio St.2d 141, 162, 228 N.E.2d 631 (1967).” And in a
footnote, the court added: “This principle is not absolute. For example, when a
mandamus action involves the review of an administrative agency’s discretion, the
decision to issue the writ must be made based on the facts before the agency at
the time it made its original decision.” Quolke, at ¶ 29, fn. 1. Although the present
complaint was not brought in mandamus, Quolke’s instruction applies in this instance
because actions in mandamus historically have provided the means for adjudicating
public-records disputes, see, e.g., Craig, supra, Quolke, supra, and because under
R.C. 2743.75(F)(1) the General Assembly has required a special master to issue a
report and recommendation “based on the ordinary application of statutory law and case
law as they existed at the time of the filing of the complaint.”
       {¶24} The Ohio Supreme Court has recognized that police officers “have a
fundamental constitutional interest in preventing the release of private information when
disclosure would create a substantial risk of serious bodily harm, and possibly even
death, ‘from a perceived likely threat,’ so any such disclosure by the state should be
measured under strict scrutiny.’ ” State ex rel. Enquirer v. Craig, 132 Ohio St.3d 68,
2012-Ohio-1999, 969 N.E.2d 243, ¶ 14, quoting Kallstrom v. Columbus, 136 F.3d 1055,
1064 (6th Cir.1998). Under a strict-scrutiny analysis, a court examines whether an
Case No. 2017-00051-PQ                    -13-                                DECISION


infringement of a fundamental right by governmental action is narrowly tailored to
promote a compelling governmental interest. See State ex rel. Enquirer v. Craig, 132
Ohio St.3d 68, 2012-Ohio-1999, 969 N.E.2d 243, ¶ 14, quoting Kallstrom at 1064
(“ ‘[w]here state action infringes upon a fundamental right, such action will be upheld
under the substantive due process component of the Fourteenth Amendment only
where the governmental action furthers a compelling state interest, and is narrowly
drawn to further that state interest’ ”). Since state highway patrol officers—like police
officers—are both law enforcement officers who may face a substantial risk of serious
bodily harm, and possibly even death if private information is disclosed, it is reasonable
that the Ohio Supreme Court’s determination in Craig, at ¶ 14 should apply in this
matter.
      {¶25} Among the competing governmental interests presented in this case are
(1) preventing the release of private information of certain state highway patrol officers
when disclosure would create a substantial risk of serious bodily harm, and possibly
even death, from a perceived likely threat, and (2) adhering to the principle that records
in the custody of public officials should be open to inspection by anyone at appropriate
times. See State ex rel. Patterson v. Ayers, 171 Ohio St. 369, 171 N.E.2d 508 (1960),
paragraph one of the syllabus (“Generally, those records in the custody of public
officials which have been designated ‘public records’ by the General Assembly are open
to inspection by anyone at appropriate times, subject to the limitation that such
inspection does not endanger the safety of the records or unreasonably interfere with
the discharge of the duties of the officer having custody of the same”); State ex rel.
Warren Newspapers v. Hutson, 70 Ohio St.3d 619, 623, 640 N.E.2d 174 (1994) (“In
Ohio, public records are the people’s records, and officials in whose custody they
happen to be are merely trustees for the people; therefore, anyone may inspect these
records at any reasonable time, subject only to the limitation that such inspection does
Case No. 2017-00051-PQ                     -14-                                DECISION


not endanger the safety of the record, or unreasonably interfere with the discharge of
the duties of the officer having custody of the same”).
       {¶26} Here, with respect to ODPS’s contention that certain state troopers’ names
should not be released because disclosure would violate the troopers’ constitutional
right to privacy under the Fourteenth Amendment, the special master states: “Upon
careful review, the evidence in this case supports the privacy exception only to the
extent of withholding the Troopers’ names during deployment. The evidence does not
justify the continuing use of the exception following the Troopers’ return to Ohio.”
(Report and Recommendation, 10.) Later in the report and recommendation, the special
master states: “The risk that was perceived during deployment has now receded.
DPS presents no evidence of retaliatory pursuit of the Troopers or their families.”
(Report and Recommendation, 18.)
       {¶27} In ODPS’s memorandum in support of its objections, ODPS states: “The
Special Master points out several times that the Department provides no evidence of an
incident where an Ohio Trooper was doxed or of other ‘retaliatory pursuit of the
Troopers or their families. * * * This is indeed correct; the Department is in the grateful
position of having no examples of the 37 Ohio Troopers, or their family members, being
the subject of a violent threat or doxing since returning from deployment.” (Objections,
11.) In view of ODPS’s admission of a lack of evidence, the court determines that the
special master’s finding that the risk that was perceived during their deployment has
receded is justified.
       {¶28} Upon review, the court rejects ODPS’s contention that the special master
erred when he concluded that the list of names of 37 troopers is no longer exempt
under the Troopers’ Fourteenth Amendment right to privacy following the troopers’
return to Ohio from deployment in North Dakota. The court overrules ODPS’s first
objection.
   2. ODPS’s Objection No. 2
Case No. 2017-00051-PQ                     -15-                                DECISION


        {¶29} By its second objection, ODPS asks the court to determine that the special
master erred when he concluded that the list of names of the 37 troopers is no longer
exempt as a security record under R.C. 149.433(A)(1) after the troopers returned to
Ohio.
        {¶30} R.C. 149.433 exempts security and infrastructure records from disclosure
by a public agency. Pursuant to R.C. 149.433(A)(1), a security record “means any of
the following: * * * Any record that contains information directly used for protecting or
maintaining the security of a public office against attack, interference, or sabotage.”
See R.C. 149.011(A) (“ ‘Public office’ includes any state agency, public institution,
political subdivision, or other organized body, office, agency, institution, or entity
established by the laws of this state for the exercise of any function of government”);
see also State ex rel. Cincinnati Enquirer v. Ohio Dept. of Pub. Safety, 148 Ohio St.3d
433, 2016-Ohio-7987, 71 N.E.3d 258, ¶ 33 (“ODPS and OSHP [Ohio State Highway
Patrol] both qualify as a ‘public office,’ * * * ”). According to R.C. 149.433(B)(1), a
record kept by a public office that “is a security record is not a public record under
section 149.43 of the Revised Code and is not subject to mandatory release or
disclosure under that section.”
        {¶31} Here, ODPS seeks to withhold the names of certain state troopers who
were deployed to North Dakota and who have returned to Ohio following a period of
deployment. In the special master’s report and recommendation, the special master
relies on State ex rel. Plunderbund Media, L.L.C. v. Born, 141 Ohio St.3d 422, 2014-
Ohio-3679, 25 N.E.3d 988, ¶ 20 for the proposition that the term “public office” “as used
in the statute includes officials and employees.” (Report and Recommendation, 19.) In
Plunderbund Media, at ¶ 20, the Ohio Supreme Court noted that “a public office cannot
function without the employees and agents who work in that office, and records ‘directly
used for protecting or maintaining the security of a public office’ must inevitably include
those that are directly used for protecting and maintaining the security of the employees
Case No. 2017-00051-PQ                     -16-                                DECISION


and other officers of that office.” Thus, it follows that, when a public office’s employees
and agents require protection and security against attack, interference, or sabotage,
certain information, such as the name of a public office’s employee or agent, is not
subject to mandatory release or disclosure.
      {¶32} In ODPS’s memorandum in support of its objections, ODPS urges that the
threat of attacks from protestors in North Dakota has not abated, and with pipeline
construction activity in Ohio, threats of attack will likely continue against law
enforcement officers. ODPS’s concern for the safety of the state troopers who were
deployed to North Dakota is reasonable. But the correctness of ODPS’s assessment of
the existing threat to the state troopers who were deployed to North Dakota may be
debated. Doubt thus exists. When doubt exists in a matter concerning public records,
Ohio case law indicates that disclosure is favored. See State ex rel. Cincinnati Enquirer
v. Hamilton Cty., 75 Ohio St.3d 374, 376, 662 N.E.2d 334 (1996) (“R.C. 149.43 is
construed liberally in favor of broad access, and any doubt is resolved in favor of
disclosure of public records”); State ex rel. Dann v. Taft, 109 Ohio St.3d 364, 2006-
Ohio-1825, 848 N.E.2d 472, ¶ 20 (“It has long been the policy of this state, as reflected
in the Public Records Act and as acknowledged by this court, that open government
serves the public interest and our democratic system. We have repeatedly espoused
this principle: ‘ “R.C. 149.43 [the Public Records Act] is construed liberally in favor of
broad access, and any doubt is resolved in favor of disclosure of public records.” ’
(Brackets sic.) Gilbert v. Summit Cty., 104 Ohio St.3d 660, 2004-Ohio-7108, 821 N.E.2d
564, ¶ 7, quoting State ex rel. Cincinnati Enquirer v. Hamilton Cty. (1996), 75 Ohio St.3d
374, 376, 662 N.E.2d 334”).
      {¶33} In this instance, because ODPS has admitted that it is in the “position of
having no examples of the 37 Ohio Troopers, or their family members, being the subject
of a violent threat or doxing since returning from deployment” (Objections, 11), it is far
from evident that, at present, the state troopers who have returned to Ohio following
Case No. 2017-00051-PQ                     -17-                                DECISION


deployment in North Dakota require protection and security against attack, interference,
or sabotage or that the names of these state troopers constitute a security record—a
“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).
      {¶34} Given these circumstances, the court determines that the special master
did not err when he concluded that the list of names of the 37 troopers is no longer
exempt as a security record under R.C. 149.433(A)(1) after the troopers returned to
Ohio. The court overrules ODPS’s second objection.
                                       Conclusion
      {¶35} Accordingly, for reasons set forth above, the court determines that GP
Media’s motion to strike of May 9, 2017 should be granted and that attachments to
ODPS’s objections that were not before the special master should be stricken, that GP
Media’s objections of May 8, 2017 should be overruled, and that ODPS’s objections of
May 5, 2017 should be overruled.        The court further determines that the special
master’s report and recommendation should be adopted as its own, including the
special master’s findings of fact and conclusions of law contained in the report and
recommendation.




                                               PATRICK M. McGRATH
                                               Judge
Case No. 2017-00051-PQ          -18-                                 DECISION


cc:
John C. Greiner                   Heather L. Buchanan
312 Walnut Street                 Assistant Attorney General
Suite 1800                        30 East Broad Street, 16th Floor
Cincinnati, Ohio 45202            Columbus, Ohio 43215

                                  Morgan A. Linn
                                  Assistant Attorney General
                                  1970 West Broad Street, Suite 531
                                  Columbus, Ohio 43223


Filed May 30, 2017
Sent to S.C. Reporter 6/13/17
