The Ohio Supreme Court today issued a writ of mandamus to compel Cuyahoga County to release key-card-swipe data documenting when former county executive Edward FitzGerald entered and exited county parking facilities and buildings.

In a 4-3 decision, the Supreme Court concluded that while the records sought by the Ohio Republican Party (ORP) were “security records” exempt from release at the time of the request, circumstances have changed and there is no longer any basis to withhold the key-card-swipe data.

Background
On May 22, 2014, ORP’s communications director submitted a public-records request for the key-card-swipe data for five individuals, including FitzGerald. The communications director subsequently added a sixth person to the request. The ORP filed a mandamus action with the Supreme Court on July 9 alleging that the county had failed to respond to the requests.

The undisputed evidence now demonstrates that the data are neither security records nor infrastructure records.
- Ohio Supreme Court

The undisputed evidence now demonstrates that the data are neither security records nor infrastructure records.
- Ohio Supreme Court

Two days later, Cuyahoga County’s law director provided the data for all the individuals except FitzGerald, though he indicated the county did not have records of when employees exited buildings. He explained that he could not release FitzGerald’s data because of “verifiable security threats” confirmed by the sheriff’s department.

ORP’s communications director then requested key-card-swipe data back to January 2011. On July 31, the county law director emailed the requested data, but again excluded data relating to FitzGerald.

The Ohio Supreme Court granted an alternative writ on Sept. 24, and the parties submitted briefs and evidence.

On Jan. 7, 2015, the county’s director of communications released FitzGerald’s key-card-swipe data to the Cleveland Plain Dealer. The ORP then followed up on its public-records request. The county law director replied that the request had been properly denied when it was submitted but that the ORP could send a new request “based on the changed circumstances.”

Court’s Analysis
In today’s opinion, the Court explained that security records and infrastructure records are both exempt from disclosure under the state’s Public Records Act.

“At the time of the request, R.C. 149.433 exempted FitzGerald’s key-card-swipe data from disclosure because FitzGerald had received threats,” the Court stated in the per curiam opinion. “The undisputed evidence now demonstrates that the data are neither security records nor infrastructure records. Cuyahoga County’s website reflects that as of July 2014, its administrative offices are now located in a new building. … In addition, the old county administration building has been demolished …. Lastly, FitzGerald is no longer the county executive.”

“Thus, because FitzGerald is no longer the county executive, the key-card-swipe data are no longer security records, and because the old county administration building has been demolished, that data cannot disclose the configuration of its critical systems and are not infrastructure records.”

The Court also explained that the county’s January release of FitzGerald’s data to the press precludes the county’s assertion that the records are excepted from disclosure under the public-records law.

“Accordingly, FitzGerald’s key-card-swipe data are public records, and the county has failed to demonstrate they are exempt from disclosure pursuant to R.C. 149.433. Thus, we grant the requested writ of mandamus and order the release of the records,” the Court concluded. 

Votes
Joining the majority opinion were Chief Justice Maureen O’Connor, Justice Terrence O’Donnell, Judge Lisa L. Sadler of the Tenth District Court of Appeals, and Judge Arlene Singer of the Sixth District Court of Appeals. Justices Sharon L. Kennedy and Judith L. French recused themselves from this case. Judge Sadler was assigned for Justice Kennedy, and Judge Singer was assigned for Justice French.

Justices Paul E. Pfeifer, Judith Ann Lanzinger, and William M. O’Neill dissented in an opinion written by Justice O’Neill.

Dissent
Justice O’Neill reasoned that the Court should not issue a writ to force the county to release records based on a request that was correctly rejected at an earlier time.

“A proper public-records request was made,” Justice O’Neill wrote. “It was properly denied. Any action taken by anyone subsequent to that final denial is irrelevant, and the majority’s focus on those acts obfuscates the question before us. Does the subsequent demolition of the building in question, the departure from office of the official involved, or the Plain Dealer’s receipt of the records requested change anything for our legal analysis? No. The request was properly denied at the time, and respondents do not have a duty to examine old requests to determine whether the conditions that permitted denial of the request have subsequently changed.”

2014-1141. State ex rel. Ohio Republican Party v. FitzGerald, Slip Opinion No. 2015-Ohio-5056.

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