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A parody of FOIA redactions

The Cincinnati Enquirer reports that it has sued the Ohio Department of Public Safety following the department’s refusal to disclose records confirming “how much it cost taxpayers to send state troopers to the Super Bowl with Ohio Governor Mike DeWine.”

https://www.cincinnati.com/story/news/2022/04/21/dewine-wont-disclose-s…

In February, The Enquirer requested expense records confirming the cost of the flight, hotel, meal, vehicle rental, and overtime for the trip. 

The newspaper reports: 

“DeWine and his wife Fran paid their own expenses to travel with 19 family members to Super Bowl 56 between the Cincinnati Bengals and the Los Angeles Rams at SoFi Stadium in Inglewood, Calif., on Sunday, Feb. 13, 2022.

“The governor travels with a security detail.

“The public safety department denied the records request, saying the information could be used to attack or sabotage the governor or his detail.

"’The release of records containing information about the Governor's security detail would reveal patterns, techniques, or information relevant to the size, scope, or nature of the security and protection provided to the Governor,’ the department said.”

Cincinnati officials disagreed, The Enquirer continues, immediately disclosing records relating to expenses incurred by the city police officer, Sgt. Dwayne Wilson, who accompanied Mayor Aftab Pureval to the game. 

Wilson’s “expenses for the six-day trip, including a coach plane ticket, totaled roughly $6,000.

“In addition to his regular salary, Wilson earned $1,292 in overtime.

“The city responded to the records request the same day it was made. Pureval said he paid for his trip himself. 

“It is unclear if Wilson attended the game with the mayor, but there is no city cost for a ticket.”

“The Enquirer is asking the high court to order the department to release the records and pay attorney fees.”

Similar questions were presented to the Kentucky Attorney General not long after the “homeland security” exception to the open records law was enacted in 2005.

https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=51393

KRS 61.878(1)(m) permits agencies to deny requests for “[p]ublic records the disclosure of which would have a reasonable likelihood of threatening the public safety by exposing a vulnerability in preventing, protecting against, mitigating, or responding to a terrorist act.” “Public records,” as defined in the exception, includes “[a]nti-terrorism protective measures and plans.” 

https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=49156

The term "terrorist act" is defined in the statute as “a criminal act intended to “[i]ntimidate or coerce a public agency or all or part of the civilian population” and/or to “[c]ause massive destruction to a building or facility owned, occupied, leased, or maintained by a public agency.”

The carefully vetted exception was enacted in the aftermath of the terrorist attacks of 9/11 accompanied by apprehension that public agencies might overuse, and even abuse, the exception. 

(This “vetting” process is, incidentally, sadly lacking in the recent enactment of new open records exceptions.)

Unsuccessful attempts by the administration of former Governor Ernie Fletcher to invoke the exception to deny access to fuel receipts signed by members of the governor’s executive security detail and expense records related to the protection of Dick Cheney following his visit to the Kentuckiana area soon put those concerns to rest.

It became clear that resolution of disputes concerning the applicability of the Kentucky “homeland security” exception would turn on the “reasonable likelihood” language and that neither the circuit court nor past attorneys general were inclined to accept agency claims at face value. 

The issue has yet to be tested in Kentucky’s appellate courts. But given the exception’s history, it’s clear that something more than “a chance” of threatening the public safety must be demonstrated — particularly when the request is submitted after the associated event has concluded (as in the case of Cheaney’s visit to Kentuckiana . 

In the 2005 “fuel receipts” open records decision, the Attorney General rejected the argument advanced by the Kentucky State Police:

“that a confrontation with an irate constituent, or even ‘potentially threatening communications,’ can be equated with a ‘terrorist act.’ Although KSP vaguely references the assassination of Governor William Goebel in 1900, the agency’s argument primarily focuses on ‘differences in public opinion with the Governor’s legislative initiatives,’ the reasonable likelihood ‘that in time a confrontation will likely happen again,’ and averting confrontations with ‘angry constituents who disagree with the Governor or Lt. Governor’s initiatives.’

“Such confrontations do not rise to the level of a criminal act intended to intimidate or coerce a public agency or all or part of the civilian population. 

“As an elected official, the Governor will inevitably be exposed to conflicting opinions, sometimes vociferously expressed, and as police officers, the troopers, whether  assigned to the Executive Security Detail or not, will inevitably be exposed to threatened or actual violence. 

“In our view, however, the disclosure of the officers’ names on fuel receipts does not have a reasonable likelihood of threatening the public safety by exposing a vulnerability in preventing, protecting against, mitigating, or responding to a terrorist act, as described above.  KRS 61.878(1)(m)1.  A confrontation with an irate constituent or a threatening communication cannot be equated with a terrorist act, the linchpin upon which the language of the exemption turns. 
 
“The restrictive language found at KRS 61.878(1)(m)1.a. through h. and KRS 61.878(1)(m)2. requires that disclosure of the disputed records would have a reasonable likelihood of threatening the public safety by exposing a vulnerability in preventing, protecting against, mitigating, or responding to a terrorist act as defined at, and only as defined at, KRS 61.878(1)(m)2. 

“The inclusion of these distinct and separate requirements imports a legislative resolve that the provision be invoked judiciously and only when all requirements have been met.” 

https://ag.ky.gov/Resources/orom/2005/05ORD255.doc

Under the rigorous requirements of Kentucky’s open records law — and the restrictive language of the “homeland security” exception — the speculative arguments advanced by the DeWine administration would likely fail. 

It is, however, interesting to ponder how — 17 years after the enactment of Kentucky’s”homeland security” exception — the atmosphere of violence at political rallies that culminated in the events of the January 6 insurrection (or even violent protests on our own state Capitol campus) might modify this analysis. Have those events adjusted the “reasonable likelihood” calculus?

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