Ben Marrison has been obsessed with former Ohio Department of Pubic Safety Josh Engel, who was fired, in part, because it was revealed that Engel had the agency’s IT department automatically forward him any e-mail from the Columbus Dispatch to an agency employee as a means to stop confidential information about the agency from being “leaked” to the Dispatch.
Marrison has made a number of wild, outrageous claims about what Engel’s activities regarding the Dispatch means. Despite our “smaller” circulation, we feel it’s necessary to address some of these claims that should have been unfit for print anywhere, let alone in Dispatch (personal vendetta policies notwithstanding.)
Joseph recently addressed the unprofessional manner in which Mr. Marrison attacked a fellow colleague of print journalism for simply challenging the narrative that the Dispatch was a victim of a criminal act in this snooping.
Over the past few weeks, the Dispatch has written (by my count) half a dozen stories, columns, or editorials regarding its victimhood. During that time, it has not written a single word about a Brown County Republican judge that found that the Ohio Inspector General’s Office obtained information in the course of one of its investigation by willfully violating the constitutional and civil rights of multiple individuals. And yet, on Sunday, Mr. Marrison felt it necessary to argue, yet again, over the victimhood of one of the largest media outlets in the State having its e-mails, which are public record, read by the agency which received them.
Let’s address each one of Mr. Marrison’s absurd complaints.
I. An agency lawyer reading the agency’s own e-mails does not constitute the crime of wiretapping under Ohio law.
Mr. Marrison has implied that as it applies to the Dispatch, Mr. Engel’s reading of emails sent to the agency’s employees by the Dispatch’s reporters may constitute the felony crime of wiretapping. I noticed that Marrison does not cite any lawyer, including the Franklin County Prosecutor, in making such a claim. Nonetheless, Marrison even went to so far as to claim that nobody is legally able to read such e-mails sent to official work-related accounts without a court order, including the agency’s own lawyer!
When I challenged him on this point on Twitter last week, his only response was to read the statute. As if I hadn’t already. Here’s the most salient point of the statute:
“This section does not apply to any of the following:
“A person who is not a law enforcement officer and who intercepts a wire, oral, or electronic communication, if the person is a party to the communication or if one of the parties to the communication has given the person prior consent to the interception, and if the communication is not intercepted for the purpose of committing a criminal offense or tortious act in violation of the laws or Constitution of the United States or this state or for the purpose of committing any other injurious act.”
An agency is no more capable of illegally spying on itself under this statute than a person is. The only e-mails that were read by Mr. Engel were those sent to the agencies’ e-mail addresses. When a reporter is corresponding with an employee of the agency, they do so in their official capacity as a representative of that agency. Therefore, the agency is a party under this statute. Illegal wiretapping, therefore, is not legally possible. Despite citing this particular provision to him, Mr. Marrison instead asked that I read the statute I just cited to him. Not only does the first exception listed under the statute applies, but there’s even a legal question whether an agency can “intercept” its own e-mails?
However, setting aside those arguments, even if consent by the specific employee was necessary, it was given. Under the State’s IT policies, every employee is notified that by using their State provided e-mail account they consent to monitoring of it by the agency. Using a state account to correspond with a journalist with knowledge that such use is conditioned on possible monitoring within the agency is, in fact, consent to such monitoring. Strike two again a criminal “illegal wiretapping” theory.
But third, there is a public policy argument that the statute wasn’t intended for such an absurd application. The clear spirit of the wiretap statute is to protect parties’ reasonable expectations of privacy. However, there is no expectation of privacy in this case. Even during our Twitter battle, Mr. Marrison conceded that the e-mails were public record (and yet, he has now written a blog post and a column suggesting that it was an invasion of privacy.) Strike three. (But in law, it’s one strike, and the case is out. )
But Mr. Marrison claimed that the State doesn’t own the Dispatch’s emails. This is a technologically naive response. The second the “Dispatch’s email” is received by a State computer and stored, that copy instantly becomes a public record. Meaning anyone has a right to see it, with or without, a reason. Despite acknowledging in his blog post that these e-mails are public record, he still wrote:
“It is our view that a government worker shouldn’t be using taxpayer-provided tools to intercept emails to or from a citizen without a judge’s order.”
There’s a reason Marrison can’t cite a single employment lawyer or legal case to support such a ridiculous proposition. What Marrison would have you to believe is that, for example, if Joe Hallett believed that, say, James Nash, might be getting to close to a GOP spokeswoman and it might be affecting his coverage to the point of jeopardizing the paper’s credibility, then Hallett and the Dispatch would need to go out and get a court order to read its own employees e-mails? No, he doesn’t believe that. Well, just because that employer is the government doesn’t change the result.
Mr. Engle is not alleged to have accessed anyone else’s computers but the agency whom he served as legal counsel at the time. It is preposterous to think that having access to the agency’s own e-mails could constitute as an illegal wiretap by its lawyer when those same e-mails are already public record. Regardless, Mr. Engle did not receive the e-mail as “pubic records.” He received them as agency records in which neither the Franklin County Prosecutor, nor the Dispatch, has presented any legal argument that they were confidential, despite clear policies of the agency to the contrary.
Therefore, even if Mr. Engel did obtain the e-mails in a manner not proscribed by law for public records, it’s irrelevant. Mr. Engel was the lawyer for the agency. He didn’t need to make a public records request to see his own client’s records.
Under each of the three separate scenarios I’ve outlined, any criminal theory fails to meet the elements of the statute.
II. The Dispatch is not a private citizen who had their tax records snooped.
Sunday’s column by Marrison was nothing more than a clichéd “slippery slope” argument in which he attempt to conflate what happened with the Dispatch to State workers improperly snooping into confidential, personal information maintained by the State concerning Pro-Am singer Crystal Bowerstox and Pro-Am idiot “Joe the Plumber.” The analogy is completely false, and Marrison should know better.
The information that was snooped about Bowerstox and “Joe the Plumber” was information that, by law, was confidential in nature. The e-mails the Dispatch reporters were sending to Public Safety employees for information (information Marrison neglects to mention that was not obtainable in public records requests) were clearly public records, even Marrison concedes that point. Comparing those instances to this one is just dishonest. However, for all his concerns about government using its powers in a vendetta like manner to violate the rights of individuals, I must mention again that the Ohio Inspector General has avoided any such public finger wagging by the Dispatch.
Marrison’s column was lazy, predictable, and frankly, irresponsible. After half a dozen stories, columns, and editorials maybe Engel wasn’t alone in his “vendetta” between the Dispatch and the Department of Public Safety. Marrison’s uninterrupted campaign against Engel would suggest that Marrison has his own vendetta against Engel:
“I left my first meeting with Engel thinking that he believed state government belonged to him, not the people. His words and manner suggested he felt all-knowing and all-powerful.”
“Engel was a different story. He was hell-bent on identifying our sources. His department was on the front page, and he was tired of it. We discovered that the department was planting information with people it suspected were our sources. Fortunately, we aren’t as dumb as they are and didn’t take the bait.”
As for Marrison’s concerns that Engel may have obtained information that was confidential/investigatory materials, maybe I’d be more convinced that Marrison wasn’t crying crocodile tears if I, too, overlooked that the only reason the Dispatch became aware of Engle’s snooping was… because it found out about Engle’s system after it had obtained confidential investigatory materials.
Gee, I wonder where they got that information? And why this has preoccupied them so much that the Ohio Inspector General’s office is getting a free pass on violating the constitutional and civil rights of multiple individuals?
Hey, you don’t think there could be a connection between the two, do you?
Marrison and I agree on one point–biased and lazy journalism makes me sick.