Records documenting threats against governor are not public record – Ohio Supreme Court

August 29, 2014
Legal Update

On August 27, 2014, the Ohio Supreme Court addressed the scope of the security and infrastructure records exception contained in Ohio’s Public Records Act (PRA).  State ex rel. Plunderbund Media L.L.C. v. Born, Dir. Of Public Safety, 2014-Ohio-3679 (per curiam).

In Born, a media company requested from the Ohio Department of Public Safety (DPS) investigations conducted by the Ohio State Highway Patrol regarding threats made against the governor.  The media company specifically sought the final investigation report for each investigation.

The DPS refused, asserting that the records were exempt under Ohio’s exemption for security and infrastructure records, Ohio Rev. Code § 149.433.  That statute exempts, inter alia, “[a]ny record that contains information directly used for protecting or maintaining the security of a public office against attack, interference, or sabotage.”

The media company sued.  It argued for a restrictive definition of what constituted protecting a “public office.”  It argued that the exemption did not apply to protecting individuals; by contrast, it applied only to things such as blueprints, the placement of cameras, or the scheduling of security personnel.

The Ohio Supreme Court rejected this limiting interpretation.  The Court noted that a public office cannot function without employees, and that records used for protecting the office “inevitably” include those that protected employees, officeholders, and other individuals.

In Born, the DPS presented several affidavits.  Those affidavits first noted that the records revealed safety and security violations.  They also noted that disclosing the number of threats would expose security limitations and vulnerabilities, which would increase the risk of harm to the governor.  Evidence also showed that even a limited disclosure could disclose patterns and techniques related to security.  Moreover, the documents contained security information that if disclosed, could be used to commit terrorism, violence, or other harmful acts.  Finally, disclosure of such information could diminish the effectiveness of law enforcement.

In light of this evidence, the Court held that the records contained information used to protect or maintain the security of a public office.  In turn, the records were security records exempt from the PRA.

The Court expressly noted that it was not giving carte blanche to public entities to exclude every record relating to a crime committed in a public building.  But where, as in Born, there was evidence of direct threats against the highest official in the executive branch of Ohio government, the security exception can apply to the investigatory records.

Born provides public entities with some additional guidance to determine what constitutes a security record under the PRA.  The security records exception applies to records that contain information used for protecting or maintaining the security of a public office, which now expressly includes records used to protect or maintain the security of high-ranking public officials, such as the governor.

If you have any questions regarding these cases or the Public Records Act, contact Thomas Allen or any other member of Frost Brown Todd’s Government Services Practice Group.

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