“Irrespective of whether the court of appeals based its judgment on the content of the video alone or on the prosecutor’s narrative description of the video’s content, however, the video does not by itself establish that it contains information directly used for protecting or maintaining the security of a public office against attack, interference, or sabotage.”

Justice Donnelly, majority opinion.

“The General Assembly has not crafted an exception to the release of a record based on the custodian’s subjective view that the information that the record contains could be dangerous if placed in the wrong hands.”

Justice Kennedy, opinion concurring in judgment only

On November 24, 2020, the Supreme Court of Ohio handed down a merit decision in Welsh-Huggins v. Jefferson Cty. Prosecutor’s Office, 2020-Ohio-5371. In an opinion written by Justice Donnelly, joined by Chief Justice O’Connor and Justices French, DeWine, and Stewart, the Court held that the video of the shooting of a common pleas judge was not a security record, and must be released to the Associated Press. Justice Kennedy concurred in judgment only, with an opinion joined by Justice Fischer.  The case was argued July 21, 2020.

Case Background

On August 21, 2017, Jefferson County Common Pleas Court Judge Joseph J. Bruzzese Jr. was shot and seriously wounded near the courthouse by a man named Nate Richmond. The judge and a nearby probation officer returned fire, and Richmond was killed. The shooting was recorded by the courthouse security system, which was positioned outside a door used only by courthouse personnel.

Later the same day of the shooting, Associated Press reporter Andrew Welsh-Huggins emailed the Jefferson County Prosecutor’s Office requesting a copy of the tape as a public record.  The next day, Jane Hanlin, the county prosecutor, turned down this public records request on the basis of several claimed exemptions.  The only one involved in this appeal is the “security record” exemption pursuant to R.C. 149.433(A)(1) and (B)(1).

Court of Claims Proceedings

On May 7, 2018, Welch-Huggins filed a public-records-access complaint in the Court of Claims, under the expedited process set forth in R.C. 2743.75. After an unsuccessful mediation, the prosecutor filed an answer and a motion to dismiss, asserting that the video was a “security record” and thus exempt from release as a public record.

On January 28, 2019, the special master filed his report and recommendation.  He determined that the prosecutor had failed to meet her burden of proving that any part of the video was exempt as a security record, and recommended that the prosecutor be ordered to turn over the video to Welsh-Huggins. On February 20, 2019, over the prosecutor’s objection, the Court of Claims adopted the special master’s report and ordered the release of the video. The prosecutor appealed.

The Seventh District reversed the decision of the Court of Claims, holding that the video was exempt from disclosure as a security record.

Read the oral argument preview here and an analysis of the argument here.  

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) (Definition of Security Record)(Any record that contains information directly used for protecting or maintaining the security of a public office against attack, interference, or sabotage. The status as a security record is determined by the public office’s actual use of the record for the stated purposes, not by a requester’s potential use or misuse of the record.) 

R.C. 149.433(B)(1)( Exempting security records from release under the Public Records Act.)

R.C. 2743.75 (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.) 

State ex rel. Natl. Broadcasting. Co., Inc. v. Cleveland,38 Ohio St.3d 79 (1988) (If a public record custodian withholds a record on the basis of a statutory exception, the “burden of production” is on the custodian to plead and prove facts clearly establishing the applicability of the exemption. Unlike a party requesting disclosure, the custodian of the record has knowledge of the contents and the custodian bearing the burden is consistent with a strict construction of PRA exemptions and favor towards disclosure.) 

State ex rel. Besser v. Ohio State Univ., 89 Ohio St.3d 396 (2000) (If the applicability of a public-records exemption is not readily apparent just from the record’s content, evidence providing specific factual support that goes beyond mere conclusory statements in an affidavit is required to show that the record sought falls squarely within the prescribed exception.) 

State ex rel. Cincinnati Enquirer v. Jones-Kelly, 2008-Ohio-1770 (It is not enough to say that a record is probably within a statutorily prescribed exemption: the public office or records custodian must show “that the requested record falls squarely within the exemption.”)   

State ex rel. Plunderbund Media v. Born, 2014-Ohio-3679 (While records documenting threats against the governor were not readily exempt from disclose under the Public Record Act, the testimony from subject-matter experts showing that the records contained information directly used for protecting or maintaining the security of a public officer was sufficient. The records were exempted from disclosure under the security record exception.)  

State ex rel. Cincinnati Enquirer v. Ohio Dept. of Pub. Safety, 2016-Ohio-7987 (The Public Records Act must be construed “liberally in favor of broad access and resolve any doubt in favor of disclosure.”) 

State ex rel Rogers v. Department of Rehabilitation and Correction, 2018-Ohio-5111 (“Bare allegations” of the applicability of the security record exemption “failed to explain how the video recording at issue actually constitutes ‘information directly used for protecting or maintaining the security of a public office against attack, interference, or sabotage.’”) 

McDougald v. Green, 2020-Ohio-4268 (Some public record exemptions are obvious just from the record’s content.) 

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.

Does the Court adopt Welsh-Huggins’ proposed proposition of law?

Yes, but this proposition states nothing new, and the prosecutor does not disagree with it.  The dispute in the case is whether the prosecutor produced this competent, credible evidence. The Court found that she did not.

Merit Decision

Analysis

At the beginning of this long, detailed majority opinion, Justice Donnelly announces that the case provides the Court with the first chance to explain the legal standards and evidentiary burdens applicable in the expedited process for public-records-access proceedings in the Court of Claims, pursuant to R.C. 2743.75 (and gives this reason as a reason to reject the prosecutor’s argument to dismiss the case as improvidently accepted).

Givens About the Public Records Act

The Public Records Act reflects the state’s policy that “open government serves the public interest and our democratic system.” It’s the way citizens can know what is going on with their government and ensure accountability.

Ensuring Compliance with the Public Records Act

Traditionally, an action in mandamus was required under R.C.149.43(C) to compel compliance with the Public Records Act. R.C. 2743.75, effective September 26, 2016, created an alternative way to resolve public-records disputes, with a streamlined process in the Court of Claims. The person seeking the public record must chose one route or the other, not both.

How R.C. 2743.75 Works

The party seeking the public record starts by filing a complaint on a form provided by the Clerk of the Court of Claims, attaching copies of the original records request and any written responses. The case is then assigned to a special master. After the complaint is served, the special master refers the case to mediation unless the special master decides its shouldn’t be (this case was sent to mediation, which failed). If the dispute is not resolved through mediation, the appropriate party (here the Jefferson County Prosecutor) must file a response and, if applicable, a motion to dismiss within ten days of the end of the mediation. Unless specifically ordered by the special master, no further motions or pleadings will be accepted, and no discovery is permitted. The parties may attach supporting affidavits to their respective pleadings.

The special master is required to submit a report and recommendation to the Court of Claims within seven business days after receiving the response to the motion to dismiss. A short extension is permitted. Each party is to receive copies of the report and recommendation within three days of its filing.  Either party may file specific objections to the report and recommendation within seven days of receipt.

Donnelly goes on to detail the process for filing objections, and then ultimately the Court of Claims issues a final order that adopts, modifies, or rejects the report and recommendations (in this case they were adopted). Any appeal from the final order of the Court of Claims goes to the court of appeals of the district where the principal place of business of the public office where the public record is requested is located (here the Seventh District Court of Appeals).

Burdens of Proof

Remember basic torts? Burden of proof consists of the burden of production and the burden of persuasion. The burden of production requires the plaintiff to produce sufficient evidence to substantiate his or her claims (the defendant has this burden with an affirmative defense). Burden of persuasion is pretty much what is sounds like—convincing the trier of fact your side should win.  

(A) In Mandamus Actions

In a mandamus action, the requester has to show he or she has a clear legal right to compel the keeper of the public records to produce them, and that the person responsible for those records has the clear legal duty to do so. The requester’s burden of production is to plead or prove facts establishing he or she requested a public record and the records custodian failed to make the record available. The burden of persuasion is on the requestor to establish the right to the writ by clear and convincing evidence. If the custodian of the public record withholds the record on the basis of a statutory exception, the burden of production is on the records custodian to plead and prove the exception, mainly because that person has the necessary information to do so. But, as the majority notes, conclusory statements in an affidavit aren’t good enough.

(B) In Court of Claims Proceeding

The standards are similar to those in a mandamus action. The complainant’s burden of production is to plead and prove facts showing that the requester sought a specific public record and that the public office did not make that record available. It is undisputed in this case that Welsh-Huggins made such a request and the prosecutor denied it. The prosecutor in this case does not dispute the fact that Welsh-Huggins satisfied his burden of production, although the Court notes that contrary to what the prosecutor argued, the requester does not need to give any reason for the request. The burden of persuasion to prove his right to relief remained at all times on Welsh-Huggins, by the requisite clear and convincing evidence standard.

If, as here, the prosecutor refuses to release the record because of a purported statutory exemption, the prosecutor has the burden to plead and prove the facts establishing the exemption. If the exemption is not apparent from the content of the record itself, the public office involved must provide factual evidence to establish the application of the exemption.

Appellate Review

In an appeal of a public-records-access case filed under R.C. 2743.75(G)(1), where the issue presents a mixed question of law and fact, the appeals court applies de novo review to the legal questions while affording due deference to the trial court’s factual determinations.  While the Seventh District apparently did not articulate its standard of review, Donnelly notes the appeals court appeared to have reviewed the video and statements submitted by the prosecutor independently before determining the video recording was exempt as a “security record” and reversing the Court of Claims determination.

Now, at last, onward to the merits.

The Security-Record Exemption

The prosecutor argued that the video at issue here fits the statutory definition of a security-record. The Court of Claims found that the prosecutor had not shown either by her affidavits or by the content of the video alone that the video met this definition. The Court of Appeals reversed the judgment of the Court of Claims and found that the video was a security record, although it was unclear whether the decision was based on the video content or the prosecutor’s affidavits. The high court majority opinion addresses both the video content and the prosecutor’s affidavits.

Video Content

The prosecutor and the appeals court both relied on the content of the video to conclude it was a security record, but neither explained how the content of the video contained “information directly used for protecting or maintaining the security of a public office against attack, interference, or sabotage,” as the statute requires. The majority cites the Rogers case as instructive on this point. Since the public-records exemption is not apparent just from the video itself, the majority goes on to evaluate the prosecutor’s evidence.

Prosecutor’s Evidence

This is the longest part of the majority opinion. By way of example about the kind of appropriate expert testimonial evidence that would suffice when the exemption is not apparent from the footage itself, Donnelly cites to Plunderbund, and contrasts it with the prosecutor’s three affidavits in this case.

In this case, the prosecutor acknowledged that in an R.C. 2743.75 proceeding, the records custodian or public office has the burden of establishing any exception to disclosure under the Public Record Act, but here argued that the requester first must meet his burden of establishing by clear and convincing evidence that he is entitled to what he seeks. In other words, the prosecutor’s burden of production does not arise unless and until the requester has established his burden of persuasion. Wrong, says Donnelly. “The requester’s burden of persuasion continues throughout the course of the proceeding but does not in any way relieve the public office or records custodian from having to prove the factual basis of the exemption on which it relies,” he wrote.

Turning to the first affidavit, Donnelly finds that in it, the prosecutor asserted in conclusory fashion that the video was directly used for protecting or maintaining the security of a public office, but never explained how it did so. While this affidavit details the capabilities of the video security system, what release would disclose, and the emergency response methods used by courthouse security personnel and other law enforcement, the prosecutor acknowledged that she did not know of any use of the video for any official purpose or law enforcement training. As with the situation in Rogers, the video captured a single incident near a public office and the emergency response to it.  Key here is that R.C. 149.33(A)(1) mandates that the status of a security record is determined by the public office’s actual use of the record, not by the requester’s potential use or misuse of the record. Another significant factor here was that the video captured an incident and response that happened on a public street, and was therefore readily observable to the public at large, any one of whom could have recorded it on an iphone.

Turning to the prosecutor’s second affidavit, the majority finds that it, too, failed to explain how the video qualified for an exemption under R.C. 149.433(A)(1). The affidavit included a narrative description of the content of the recording, identifying at times what a viewer could or could not see, and the emergency response procedures actually followed during this incident. But what was again missing here was any explanation of how the video contained information “directly used for protecting or maintaining the security of a public office against attack, interference, or sabotage” as the statute requires.

The prosecutor’s third affidavit, which was filed in response to the special master’s request for certain technical information, identified those technical matters of which she had personal knowledge, a lay understanding, or on which she relied on information given to her by the county’s IT coordinator.  On this point, the court of appeals acknowledged that the affidavit was based on hearsay and was not from an office that provides courthouse security, but found that Welsh-Huggins had failed to object to it. The majority finds this beside the point, because the ability to view the video does not determine whether it is a security record. That is determined by its actual use by the public office. And the prosecutor’s assertion that the undisputed evidence established at least a probability that the video was a security record was not good enough. The public office must show that the requested record “falls squarely within the exemption.”

The Appeals Court Falls Far Short

The majority finds that the appeals court failed to justify its holding that the video fell squarely within the security-records exemption. Its opinion never specifies which of the prosecutor’s three affidavits supported this finding. And it makes no determination that the video was a security record as defined in R.C. 149.433(A)(1), namely “directly used for protecting or maintaining the security of a public office against attack, interference, or sabotage.” The appeals court opinion does not even include this definitional test.

Ultimately, the majority finds that regardless of whether the appeals court relied on the content of the video alone or the prosecutor’s description of what it showed, there was no proof that the video footage was directly used to protect or maintain the security of the public office.

“By failing to specify the statutory basis for holding that the video footage here was a security record and instead offering a nonspecific rationale that appears to be drawn more from a statutory exemption that was never even at issue, the appellate court’s opinion does not provide a basis for that court to substitute its judgment for that of the Court of Claims,” Donnelly wrote.

Legislative Deference

Donnelly wrote that in no way was the Court questioning the sincerity of the prosecutor’s concerns about security. But it is up to the legislature to set public policy, and by making the exceptions to the public-records statute very narrow, the legislature has already weighed and balanced the public’s right to know against the potential harm or burden on the agency by disclosure.

Bottom Line

Under R.C. 149.433(A)(1), the status of a particular record as a security record is determined by its actual use, not by the requester’s intentions. The appeals court went wrong when it held the video was a security record without any basis for finding that the footage contained information that was “directly used for protecting or maintaining the security of a public office against attack, interference, or sabotage.”

Unresolved Issues in the Court of Appeals

Because it determined the video was exempt from disclosure as a security record, the appeals court left undecided two of the prosecutor’s assignments of error on mootness grounds.  Normally the Court would remand the case back to the appeals court to address those issues, but the majority does not do that here because the public-records request is already more than three years old, even though the Court of Claims procedure is supposed to be streamlined. Donnelly acknowledges that much of the delay was due to the special master’s repeated requests for more information from the prosecutor.  Regardless, because the prosecutor’s remaining assignments of error were uncomplicated, the court considered both. Here they are:

Eighth Assignment of Error: “The Special Master’s Report and Recommendations and Trial Court’s Decision erroneously and unlawfully required the Respondent to perform a service, by which the Respondent would have to create a new record, contrary to law.”

Ninth Assignment of Error: “The Special Master’s Report and Recommendations and Trial Court’s Decision erroneously and unlawfully require the Respondent to perform a service, by which the Respondent would have to compile information from an existing record in order to create a new record, contrary to law.”

The majority found no merit in either assignment of error and overruled them both. 

“Because the video here clearly existed, the order to duplicate it with redactions that would conceal exempt information and disclose nonexempt information did not require the prosecutor to create a new record. The Court of Claims accordingly did not err by ordering that the video be made available subject to limited redactions for peace officer safety,” Donnelly wrote.

Justice Kennedy’s Concurrence in Judgment Only

Kennedy agrees that the prosecutor failed to show that the security-camera footage at issue here fell within the security-record exception to the release of public records. But she would decide the case on much simpler grounds. She also makes an interesting point:

“Although it might seem counterintuitive to question whether security-camera footage is a security record, the statutory definition focuses on how the public office uses the information in the record,” Kennedy wrote.

Under the statutory provisions at issue here, a record is definitionally not a security record if it does not contain information used directly to protect and maintain the security of the public office from attack, interference, or sabotage.  Here, Kennedy found the prosecutor produced no evidence to demonstrate that it did.

Kennedy would also find the prosecutor’s affidavits to be fatally defective because they were based on information and belief, and not from personal knowledge, contrary to Evid.R. 602.  Kennedy notes that the legislature did not include an exception to the release of a record based on the custodian’s view that the record could be dangerous if placed in the wrong hands, nor is there any exception for records that reveal security measures and surveillance techniques. Any beef on this point needs to be taken up with the General Assembly.

Justice Fischer joined this opinion.

Case Disposition

The court of appeals is reversed, which means Welsh-Huggins and the Associated Press should finally get the video subject to any redactions necessary for peace officer safety.

Special Master (affirmed)

 Jefferey Clark

Court of Claims (affirmed)

Judge Patrick McGrath

Seventh District Court of Appeals (reversed)

Opinion by Judge Carol Robb, joined by Judges Gene Donofrio and David D’Apolito.

Concluding Observations 

Here’s what I wrote after argument:

“I’m going to call this for Welsh-Huggins and the Associated Press.  Despite her lengthy and clearly heart-felt explanations, I think the prosecutor would have been better served simply to provide an affidavit from an expert with personal knowledge of the courthouse security system, and that failure may sink her argument.  Justice Donnelly certainly seemed to jump on that point. The Chief seemed put off by Ms. Hanlin’s insistence that those seeking public records had to provide some kind of good reason for their requests.  And Justice French seemed to remain dubious about what was so extra special about the courthouse security camera footage… The statutory procedure for Public Records requests was supposed to streamline this process. I can’t say that it did, here. And I’m not familiar enough with this process to know the rules about objections. But, fundamentally, it doesn’t sound like the Prosecutor’s Office provided the required competent evidence.”

Justice Donnelly wrote a primer here, and the decision really reflected the concerns articulated by his colleagues at argument—Justice French’s observation that any bystander could have seen the same thing as was on the tape and the Chief pushing back on the idea that a requester has to have a good reason for the request. Donnelly’s chief concern during argument was over the lack of personal knowledge in the prosecutor’s affidavits, but he didn’t emphasize that as much in the majority opinion as Justice Kennedy did in her separate concurrence.

Justice Donnelly was also harsh in his criticism of the Seventh District’s opinion. And the decision not to send the unaddressed assignments of error back to the appeals court was an interesting one. The matter needed to be ended. Welsh-Huggins requested the video on August 21, 2017, and this decision came out November 24, 2020. And this was the streamlined process.