Update: On November 24, 2020, the Supreme Court of Ohio handed down a merit decision in this case.  Read the analysis here.

Update: Read the analysis of the argument here.

On July 21, 2020, the Supreme Court of Ohio will hear oral argument in Andrew Welsh-Huggins v. Office of the Prosecuting Attorney, Jefferson County, Ohio, 2019-1481. At issue in this case is deciding what evidence sufficiently proves an exemption under Ohio’s Public Records Act (PRA). More specifically at issue is whether an attorney’s affidavit is sufficient to prove security camera footage is a security record within the specialized PRA dispute system managed by the Ohio Court of Claims.

Case Background

On August 21, 2017, Judge Joseph Bruzzese was shot outside the Jefferson County Courthouse by Nate Richmond. Both Bruzzese and a probation officer walking nearby defensively returned fire at Richmond, who died at the scene. Bruzzese was seriously injured but recovered.

The entire ordeal was captured by a video surveillance camera affixed to the outside of the Jefferson County Courthouse. On the day of the shooting, Associated Press reporter Andrew Welsh-Huggins (“Welsh-Huggins”) requested a copy of the surveillance video from the Jefferson County Prosecutor’s Office ( “Prosecutor’s Office”) per the Ohio’s Public Records Act. The Prosecutor’s Office promptly denied release of the video. For nine months following the incident, Welsh-Huggins repeatedly requested the video arguing that the shooting of a judge is a topic of great public importance and that the video would verify law enforcement’s conclusion that Richmond had “ambushed” Judge Bruzzese. The Prosecutor’s Office denied each request.

On May 7, 2018, Welsh-Huggins filed a formal complaint in the Ohio Court of Claims pursuant to R.C. 2743.75. Enacted by the Ohio General Assembly in 2016, R.C. 2743.75 created a procedural system designed to resolve PRA disputes economically and expeditiously. The system is overseen by the Ohio Court of Claims which appoints a Special Master in each case to oversee, adjudicate, and ultimately recommend whether a record be deemed public or not. Special Master Jefferey Clark was appointed to oversee this PRA dispute.

Among other things, the Prosecutor’s Office based its refusal to release the video on grounds that it fit within the security record exception to the PRA. Special Master Clark made three requests for the Prosecutor’s Office to provide additional information and evidence during his investigation. The requests resulted in an affidavit filed by Prosecuting Attorney Jane Hanlin that outlined her personal knowledge of the court’s surveillance system and a timeline of events depicted in the shooting video.

Based on the information and evidence presented, Special Master Clark found that the Prosecutor’s Office failed to satisfy its burden of proving any PRA exceptions applied to the video. In declining to find the video to be a security record, Special Master Clark determined the video was not directly used to protect or maintain courthouse security, was not a planning, training, or investigatory document maintained for security purposes, and contained no audio that would create a vulnerability for future emergency responses. Consequently, he recommended the Prosecutor’s Office should release the video to Welsh-Huggins, with the image of any peace officer involved redacted.  

Court of Claims Judge Patrick McGrath adopted the Special Master’s entire recommendation and ordered release of the video. The Prosecutor’s Office objected to this conclusion, but those objections were overruled. The Prosecutor’s Office then appealed to the Seventh District Court of Appeals and the Court of Claims granted a stay enjoining release of the video until the matter was decided on appeal.

The Appeal

Joined by Judges Gene Donofrio and David D’Apolito, Judge Carol Ann Robb authored a unanimous opinion overruling the Court of Claims’ decision. The Seventh District Court of Appeals found the Prosecutor’s Office satisfied its burden in proving the video fell within the security record exception to the PRA. Because the PRA’s security record exception applies, the Prosecutor’s Office is no longer required to release the video to Welsh-Huggins.  

Security records are exempted from release under the PRA if evidence supports such a conclusion; bare allegations do not suffice. Here, the appeals court found that while Prosecuting Attorney Hanlin’s affidavit is based on hearsay and is not from a technology or security professional, Welsh-Huggins did not object to the affidavit during the Special Master’s investigation. Therefore, the affidavit is a sufficient basis to conclude the video is a security record.

First, the affidavit asserts that if the video were released to the public, it would expose security blind spots, zoom, rotation, and isolation capacities of the camera, along with the technical vulnerabilities of the entire courthouse’s security system. Second, the affidavit amply noted that the video does not just capture the shooting, but also the response efforts and protocol of law enforcement and emergency personnel. The statutory language of R.C. 149.433 explicitly exempts records which show such critical security information. While other cases have relied on more extensive and specialized evidence, the affidavit in this case was sufficient.

Welsh-Huggins appealed.

Votes to Accept the Case

Yes: Justices Donnelly, Fischer, French, Kennedy, and Stewart.

No: Chief Justice O’Connor, Justice DeWine.

Welsh-Huggins’ Proposition of Law Accepted for Review

A public office must produce competent, admissible evidence to support an assertion of an exception to the Public Records Act.

Key Statutes and Precedent

R.C. 149.43 (Ohio Public Records Act (PRA)) (“Public record” means records kept by any public office, including, but not limited to, state, county, city, village, township, and school district units.)

R.C. 149.433(A)(1) (Exempting security and infrastructure records from release under the PRA) (“Security record” means any of the following: (1) Any record that contains information directly used for protecting or maintaining the security of a public office against attack, interference, or sabotage; (2) Any record assembled, prepared, or maintained by a public office or public body to prevent, mitigate, or respond to acts of terrorism.)

R.C. 2743.75 (Jurisdiction over claims alleging denial of access to public records) (codifies a system to, “provide for an expeditious and economical procedure that attempts to resolve disputes alleging a denial of access to public records” in violation of Ohio’s Public Records Act. The Ohio Court of Claims is the sole and exclusive authority to adjudicate and resolve PRA complaints.)

Evid. R. 103(A)(1) ( Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected; and in case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection.)

Amie v. General Motors Corp., 69 Ohio App.2d 11 (1980) (“a party waives objection and waives any challenge to hearsay testimony by failing to object with reasonable promptness in the trial court.”)

State ex rel. Plunderbund Media v. Born, 2014-Ohio-3679 (Department of Public Safety records concerning threats against the Governor are security records that are exempted from release under the PRA. Whenever the record is used for protecting and maintaining security or maintaining the secure functioning of an office, it is considered a security record and does not need to be released.)  

State ex rel. Ohio Republican Party v. Fitzgerald, 2015-Ohio-5056 (When there are verified threats against a public official, records showing ingress, egress, and timing such as video surveillance of private building entrances are security records for purposes of protecting and maintaining the security of the public office.)

State ex rel Rogers v. Department of Rehabilitation and Correction, 2018-Ohio-5111 (Refusing to extend security-record exemption to surveillance footage depicting use-of-force incident in a prison. To successfully argue a record is a security record, there needs to be information alleging the video is directly used to ensure safety. This information must be supported by evidence, not merely a bare assertion. Generalized claims that the record protects a security interest is insufficient.)

Welsh-Huggins’ Argument

The Seventh District’s decision undermines and complicates the otherwise clear PRA dispute procedures enacted by the General Assembly in R.C. 2743.75.

The Seventh District acknowledged Prosecuting Attorney Hanlin’s affidavit is hearsay and lacks the assessment of a courthouse security professional. However, even in light of these deficiencies, the Seventh District accepted the affidavit solely on the basis that Welsh-Huggins failed to object during the Special Master’s investigation. Such a holding explicitly contradicts the rules and procedures outlined in R.C. 2743.75(E)(2) which forbids parties from making traditional motions such as an objection or motion to leave.

R.C. 2743.75 was purposed to operate as a more expeditious and efficient system for resolving disputes under the PRA. The system’s particularized rules and procedures are designed to operate entirely separately from a traditional mandamus action or civil bench trial. The Seventh District’s requirement that Welsh-Huggins and every future public records requestor object and file motion after motion to any piece of dubious evidence will prolong PRA disputes and make them more expensive. R.C. 2743.75 explicitly requires the Special Master to begin, conduct, and conclude an investigation in no more than 7 business days. Without any objections or procedural hurdles, this PRA dispute took 139 days.

Here, the Special Master requested additional information three times from the Prosecutor’s Office and the evidence he ultimately received was insufficient. Because the evidence was lacking, and in reliance on Ohio Supreme Court precedent, the Special Master properly concluded that the Prosecutor’s Office failed to meet its burden in demonstrating the video is a security record. As trier of fact, the Special Master’s assessment of the quality of evidence ought to be afforded deference. By ignoring the Special Master’s assessment and simply accepting the affidavit because Welsh-Huggins did not object, the Seventh District ignored the instruction of Ohio case law and eliminated the burden of proof required of the Prosecutor’s Office. 

If left to stand, the Seventh District’s decision will have far-ranging and harmful implications. Injecting trial motions into the R.C. 2743.75 system will create an unfair advantage for public offices who are well-equipped with government attorneys familiar with PRA litigation. Prejudice against public record requestors will arise if Special Masters are not allowed to exercise their discretion in weighing the credibility of evidence. By validating an affidavit based on hearsay and lacking in subject-matter expertise, the Seventh District forces Special Masters to simply accept any evidence in favor of a PRA exemption at face value unless unpermitted objections are made. The Seventh District’s decision ignores the plain statutory language and legislative intent of R.C. 2743.75 and should accordingly be reversed.

State’s Argument

As an initial matter, this case should be dismissed as improvidently allowed as it raises nothing more than standard hearsay and sufficiency arguments.

Welsh-Huggins’ argument on appeal is entirely based on one sentence in the Seventh District’s decision discussing hearsay evidence and ignores the remaining 17 pages of the reasoned opinion which analyzes why the video is a security record. First, the affidavit at issue is not even required to decide the video is a security record. On appeal, the video itself was submitted as evidence and the Seventh District relied on its first-hand observation of the video, not the affidavit, to properly conclude the video disclosed important security vulnerabilities and security protocol.

Even if the affidavit is required, it is sufficiently detailed and is not based on hearsay. While Prosecuting Attorney Hanlin’s affidavit does include information provided by the courthouse security specialist, the affidavit is merely a roadmap of what one would see when watching the video. The affidavit is based on Prosecuting Attorney Hanlin’s own personal knowledge as someone who viewed the video and responded to the shooting scene.

Further, the affidavit alone is detailed enough to prove that the video fits squarely within the security record exception. The affidavit merely states that the video depicts: (1) the highest judicial official in Jefferson County under attack; (2) specialized law enforcement and emergency response procedures; (3) technical vulnerabilities of the courthouse security system; and (4) security blind spots, panorama views, and other detailed safety information. The affidavit standing alone proves the video is a textbook definition of a security record as recognized both in R.C. 149.433 and Plunderbund.

Even if the affidavit is considered hearsay, Welsh-Huggins already waived his right to a hearsay challenge. While R.C. 2743.75 prohibits traditional trial motions, Ohio case law and Evid. R. 103 required that Welsh-Huggins either promptly object to the affidavit on hearsay grounds or else forfeit the argument. Here, the Special Master invited Welsh-Huggins to submit reply briefs against the Prosecutor’s Office evidence three times. Indeed, Welsh-Huggins replied all three times, but never once did he argue the affidavit was grounded in hearsay. In fact, Welsh-Huggins’ merit brief before the Supreme Court is the first time he has raised a hearsay argument. This faulty argument is Welsh-Huggins’ complete argument and is again based on one word of the Seventh District’s entire opinion.

While the General Assembly undoubtably crafted R.C. 2745.75 to expedite PRA disputes, the R.C. 2745.75 system Welsh-Huggins argues in favor of runs the risk of depriving public record custodians procedural due process. Here, the Special Master refused to hear the Prosecutor Offices’ witnesses, refused to hold a fair trial, and in not requiring Welsh-Huggins to submit any evidence, bypassed the requestor’s initial burden of proving a record is a public record. Welsh-Huggins argues for a system where a Special Master can ignore evidentiary rules, deny due process, eviscerate a requestor’s burden of proof, conduct a hasty investigation, and then demand full deference to its decision if the case is appealed. The Special Master here conducted such an unfair, apathetic investigation that his final recommendations should be afforded no deference at all. Speed is not the main goal of the PRA and the Court should not interpret R.C. 2745.75 to result in the improper dissemination of exempted records.

Finally, Welsh-Huggins advocates for a system that risks the security and safety of Ohio’s public officials. In a time where attacks on public officials are commonplace, protecting the privacy of security systems is imperative. Here, Jefferson County officials have received death threats in connection with the prosecution of local gang members and the shooter who ambushed Judge Bruzzese has known gang affiliations. Release of the video will invite future copycat attackers to watch the footage, take advantage of security vulnerabilities, plan against emergency response procedures, and better execute an act of terror and violence. Welsh-Huggins’ arguments undermine the precise reason for creating a security record exception and the PRA should not be misused to mandate disclosure of the video.

Amicus in Support of Welsh-Huggins

Ohio Coalition of Open Government et al

Amici are the Ohio Coalition for Open Government, Ohio Association of Broadcasters, Reporters Committee for Freedom of the Press, the E.W. Scripps Company, Gannett Co., the International Documentary Association, the Investigative Reporting Workshop, the Media Institute, the Association of Magazine Media, the National Freedom of Information Coalition, News Leaders Association, Society of Environmental Journalists, and Society of Professional Journalists. Amici have unified interests in the broad release of public records to best inform the public and enforcing the rights and freedoms of a free press.

Amici argue first that the Seventh District’s de novo review is improper, and the more deferential abuse of discretion standard should have been applied because Special Masters have unique expertise in deciding PRA disputes and Special Masters operate in the same way magistrates do for trial courts. Because the Special Master here did not act unreasonably, arbitrarily, or unconscionably, the abuse of discretion standard is satisfied, and the Court of Claims decision should be reinstated. Second, the Seventh District blatantly contradicted the definition of a security record as recognized in Rogers, reversing based solely on hearsay in a conclusory affidavit. If the Seventh District’s decision is upheld, Ohio’s long-standing tradition of broadly interpreting the PRA will be damaged and Ohio will be an outlier among other jurisdictions that define similar security camera videos as public records belonging to the people.

Amicus in Support of State

Ohio Prosecuting Attorneys Association (OPAA)

OPAA is a private, non-profit membership organization founded to support 88 Ohio county prosecutors pursue justice and promote public safety. First, Plunderbund was decided in reliance upon affidavits similar to those used in this case. The Plunderbund affidavits were instrumental in defining what it means for a record to be “directly used” to protect a public office and the video here depicts similar information beyond just the attack that could undermine security protocol and safety.

Second, Welsh-Huggins is not asking for clarity or a new pronouncement of a legal standard; what constitutes a security record has been clearly outlined by Rogers and Plunderbund. Welsh-Huggins is not pursuing this appeal for the public benefit, but rather because he is unhappy with the Seventh District’s outcome. Welsh-Huggins’ appeal should be dismissed as improvidently granted and there is no need for the Supreme Court to confuse settled law as interpreted by Ohio’s lower courts.

OPAA Proposed Proposition of Law 1

The “record” at issue is a security record, and thus prohibited from mandatory disclosure under the Ohio Public Records Act.

OPAA Proposed Proposition of Law 2

The Seventh District’s Decision makes clear that this Court has already sufficiently established the law on “security records” and, therefore, no further pronouncements are necessary to guide Ohio courts.

Student Contributor: Brandon Bryer