The Long and Winding Road to an Opaque Government
by Victoria Ullmann

Over the last several years both federal and state governments have employed two primary methods of hiding their activities from the public.  The first and most obvious is the misuse of the Patriot Act to label government documents and activities as security matters.  This is nearly impossible to monitor.  If the public and the press cannot see any of the documents, there is no way to know what is being hidden.   The second is privatization of government functions.  By privatizing what are in fact functions of government, much questionable activity can be concealed in what may pass as a private corporation. Both these issues are now being litigated before the Ohio Supreme Court.

In this post we will discuss the first misuse.

Security Documents

Back in 2012, Kasich and his team alleged that his schedules must remain secret in perpetuity because he was receiving threats all the time.  If such threats exist, and it is not very likely they do, the Highway Patrol would record these as incident reports.  Such incidents reports have been declared by the Ohio Supreme Court to be public records.  Highway Patrol incident reports are in a searchable data base called RIMS.  The Highway Patrol can easily produce at a minimum a list of the incident reports of threats to the governor.

However, when Plunderbund made a proper public document request for the incident reports, they were denied the documents because the Highway Patrol claimed they were exempt as security documents pursuant to R.C. 149.433.  This section of the law exempts certain limited types of security document, primarily information like computer encryption codes or plans for preventing terrorist attacks.  The statute contains some broad language regarding security documents, but nothing in it indicates in any way that it is intended to override long standing legal precedent that holds that the public should be able to access standard law enforcement material.

The Ohio Supreme Court has also long held that if there is ambiguity in any exemptions to the public document statute, it is to be interpreted to favor disclosure.  Because the General Assembly is aware of this long standing legal precedent, they generally write clear exceptions that apply to specific classes of documents.  For instance, as discussed below, most documents created by or in the possession of JobsOhio are exempt.  There are loads of problems with that, but there is no doubt whatsoever what the General Assembly intended it to be exempt.

Another example is the exemption for “DNA records stored in the DNA database pursuant to section 109.573 of the Revised Code.”  Very specific documents are indicated and application of that section leaves virtually no room for interpretation.  On the other hand, Public Safety is trying to argue in the Plunderbund case that they can greatly expand the application of a narrow exemption for computer materials to cover virtually anything they can remotely say can cover some type of security related issue, no matter how tangential.  This is a very scary police state kind of mentality that is really disturbing.

The Ohio Supreme Court has also consistently declared that if an otherwise public record contains some limited material that is exempt, then the exempted material is to be redacted and the document produced.  For instance, the court determined that police officers home phone numbers are confidential and therefore are not public, even if they appear in what is otherwise a public document.  In that case, the phone number is to be redacted and the document produced. Although Plunderbund stated it would accept the documents with redactions to avoid a suit over the issue, Public Safety refused claiming that this long standing principle did not apply to them, despite the fact that it applies to everyone else.

However, the most twisted aspect of Public Safety and John Kasich’s position here is that they are arguing that these documents should be kept secret because John Kasich is so super famous that he deserves greater privacy rights than average citizens or any other state public official in history.  I am not making this up. Despite the fact that all tort and other legal precedents hold that seeking public fame and power involves a corollary loss of individual privacy protections, Public Safety argues the contrary.  They opine that terrorists would target the super famous Kasich because he was on the House of Representatives Budget Committee 20 years ago.  What is the likelihood of that? That argument is simply ludicrous.

They also argue that he has had more media exposure than other public officials in the state which is unproven and also irrelevant as far as terrorist interest would be concerned.  And perhaps most incredibly, they argue that Karen Kasich is more famous than any other first lady.  They make this incredible argument even after John Kasich made national news when he stated his wife is just a homebody living in his shadow and doing the laundry.  Generally, lawyers try to avoid arguments that would subject them to outright ridicule, but apparently the attorney general’s office forgot that rule in working on this case.

This case has been fully briefed at this point and is awaiting a decision from the Court.  The state requested oral argument and I asked for an in camera review of the documents and we have received no ruling on either motion.  The Court can proceed to determine the case without granting either motion.

Lastly, we would be remiss if we didn’t mention the American Civil Liberties Union of Ohio Foundation and the Amicus Brief they filed in support of our case.  They correctly argue that the requested records are “invaluable as a tool for public scrutiny of government activity and any confidential or personal information that is not relevant to that scrutiny can be redacted.”  We agree wholeheartedly and greatly appreciate their supportYou can view their brief here.

Documents related to Plunderbund v. Public Safety can be f0und here under Ohio Supreme Court case number 2013-0596.