By Dennis Hetzel, Executive Director
Everyone should agree that the governor of Ohio needs excellent security, and that the government has a responsibility to keep him and his family safe. I doubt that anyone would argue that all details and reports about such security procedures or threats received should be public records.
That doesn’t mean the executive branch should have a free pass to keep anything regarding the governor’s security secret. However, the Ohio Supreme Court has issued yet another sunshine-law decision that could open new exceptions to our open records laws.
In this latest case, the Court rejected efforts by the liberal blog Plunderbund to get records documenting threats against Gov. John Kasich. In a unanimous finding, the court said in essence that records related to any threats made against the governor are closed under the “security record” exemption in the law.
What troubled us most about this decision was the court’s willingness to accept unsupported arguments contained in affidavits making claims such as each-and-every threat has the potential to reveal security and safety vulnerabilities. Another argument administration officials and the State Highway Patrol made was that public disclosure of the number of threats also would expose security limitations.
These expansive claims simply cannot be true unless you throw common sense out the window. Is it really true that all threats expose issues with security? Everyone who has ever dealt with law enforcement officials in records fights recognizes that police agencies are the masters of “sky is falling” arguments, knowing how hard it is for anyone to disagree with them without running the risk of a backlash. This is particularly so, and even understandably so, when security issues and even terrorism might be involved. Still, if terrorists have an interest in Gov. Kasich, that’s news.
Not only did the justices give skepticism a day off by accepting these blanket claims, they also refused to privately review the records in question.
Reviewing the records would have opened the possibility of an obvious solution. It is called redaction – the act of “blacking out” information that should appropriately be closed. Instead, the court ratified a blanket exemption. It is supposedly settled law and explicit that redaction is the option government must follow if redacting information from a public record would make it an open record.
Perhaps if the Court had conducted a systematic review, even of a sampling of reports, most or even all of the requested records still would have remained appropriately closed. I am not here to support Plunderbund; the case has flaws and seems like an overreach in terms of what they were requesting.
However, the public has a right to know, at least in general terms, about what types of threats our elected officials are facing and, at least in general terms, what the taxpayer-funded police agencies are doing. That is going to be even harder to determine now. Taxpayers apparently should just keep sending money and assume that the police agencies do not require scrutiny. If the governor or other officials make claims that threats are landing practically every day, shouldn’t there be some way to verify if this is true?
There is another dynamic here as well. Both political parties complain about the other side “abusing” the open records laws in order to harass the opposition. I don’t think I’m exaggerating to say that Republicans detest Plunderbund. However, the source of a records request never should be a consideration.
Note, too, that the Republicans exposed Ed FitzGerald’s late-night drive home with a female member of an Irish delegation in Cleveland by making records requests to a suburban police department. That turned into another big problem among many that now plague FitzGerald’s gubernatorial campaign.
It goes around and comes around in politics.
Thanks go to attorney Jack Greiner for his observations to assist in this column.
- Cleveland.com story on the ruling
- Columbus Dispatch story on the ruling
- Affidavits submitted by Ohio Dept. of Public Safety to support secrecy
- Full text of Ohio Supreme Court decision