Travel and expense records of state troopers providing security to Gov. Mike DeWine as he attended the 2022 Super Bowl are security records that are not available to the public, the Supreme Court of Ohio ruled today.

In a 4-3 decision, the Supreme Court determined that the Ohio Department of Public Safety directly used the 2022 Super Bowl travel and expense records to develop other plans to protect the governor. In a per curiam opinion, the Court stated that information regarding past events is considered non-public security records if the agency provides evidence that it uses the information for future security planning purposes.

The Court denied a writ of mandamus sought by the Cincinnati Enquirer to compel the release of the travel and expense records of “troopers and/or staff” attending the 2022 Super Bowl with Gov. DeWine.

Chief Justice Sharon L. Kennedy and Justices Patrick F. Fischer and Joseph T. Deters joined the opinion. Tenth District Court of Appeals Judge Betsy Luper Schuster, sitting for Justice R. Patrick DeWine, also joined the opinion.

Chief Justice Kennedy wrote a concurring opinion to clarify how this decision differs from another ruling where the Court declined an attempt by a public office to classify information as a security record.

In a dissenting opinion, Justice Michael P. Donnelly stated the newspaper sought financial records, and the highway patrol does not “directly use” that information to protect and maintain security. The expense records should be considered public records and released, he concluded.

Justices Melody Stewart and Jennifer Brunner joined Justice Donnelly’s opinion.

Expense Records Requested After Game
The 2022 Super Bowl pitted the Cincinnati Bengals against the Los Angeles Rams and was played in Los Angeles. The day after the game, an Enquirer reporter sent a public records request to the Department of Public Safety and the governor’s office requesting the expenses for overtime pay, airline tickets, meals, hotels, and vehicle rental expenses incurred by troopers and staff who accompanied the governor.

The department denied the request, asserting the information was not a public record under R.C. 149.43, the Ohio Public Records Act. The department stated that the information was protected as a security record under R.C. 149.433(A)(1).

The department explained the “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 information could be used to “attack, interfere, or sabotage the Governor or his security detail,” the agency added.

The Enquirer disagreed with the department’s assessment and, in a follow-up letter, argued the financial records did not meet the security record exemption in R.C. 149.433(A)(1) because the information is not “directly used for tactically protecting or maintaining the security of a public office.” The department continued to deny the records request.

In April 2022, the Enquirer sought a writ of mandamus from the Supreme Court, requesting an order to compel the department to provide the requested records.

Supreme Court Analyzed Security Record Exemption Law
The Court noted that R.C. 149.433(A)(1) defines a “security record” as any “record that contains information directly used for protecting and maintaining the security of a public office against attack, interference, or sabotage.” Security records are not public records and do not have to be disclosed to the public, the law states.

The majority opinion explained that a public office seeking the security record exemption must follow the Court’s 2020 Welsh-Huggins v. Jefferson Cty. Prosecutor’s Office decision. In Welsh-Huggins, the Court stated that the office must provide evidence establishing that the record “clearly contains information directly used for protecting or maintaining the security of a public office against attack, interference, or sabotage.”
In today’s case, Ohio Highway Patrol Captain Craig Cvetan, who oversees and approves the expenses for the governor’s security detail, provided a sworn statement detailing the information in the requested records. Those reports include the names of the security detail members, the size of the security contingent, their travel dates, the use of vehicles, and other time and location information. 

Staff Lieutenant James Thompson, who spent eight years as a member of the governors’ security detail, testified that the records directly related to the movement and operations of the security team. He stated that a security detail establishes certain protocols when a governor travels, including determining how many security officers are needed, how close the officers will be to the governor, whether an advanced team is used to assess the travel destination, and the number of vehicles used to provide protection. Troopers use the information from past trips to plan for a governor’s future travel plans, and releasing the information could compromise the department’s ability to protect a governor, Thompson stated.

The department presented expert witness testimony from Kurt Douglas, a former U.S. Secret Service officer who protected past U.S. presidents and served as a security officer for the Indiana governor.  Douglas testified that security information from a past trip is “precisely the material that a potential aggressor would review in attempting to discern patterns” of a governor’s security detail and could be used to “exploit any perceived vulnerabilities.”

The Court concluded that the evidence showed the disclosure of the records would reveal vulnerabilities in the assigned security detail and pose a risk to the safety of a public office. And because the records from the Super Bowl trip will be used to formulate future security plans, the records qualify as non-public security records, the opinion stated.

Department Provided Evidence to Justify Exemption, Concurrence Explained
In her concurring opinion, Chief Justice Kennedy highlighted the difference in the evidence presented in this case compared to Welsh-Huggins, where the Court determined that the courthouse’s surveillance video capturing the shooting of a judge was not a security record.

In Welsh-Huggins, not only was there a complete lack of evidence due to fatally deficient affidavits, according to Chief Justice Kennedy, but the county prosecutor had only offered “conclusory statements” that the surveillance video qualified as a security record because disclosing the video would reveal “perceived vulnerabilities” of the courthouse security. The prosecutor did not explain “how” the video was used to protect or maintain the security of the public office, which is required by law to qualify for exemption. In today’s case, the department provided three witnesses who explained how the information is used to protect a governor and is incorporated into future security plans. That evidence established that the information sought by the Enquirer was non-public security records, the chief justice concluded.

Records Wrongly Concealed to Prevent Misuse, Dissent Maintained
In his dissenting opinion, Justice Donnelly also pointed to the Welsh-Huggins decision and echoed the majority opinion by stating that a security record is established by how a public office actually uses the information. He added that the decision also noted that a security record “is not determined by a public requester’s potential use or misuse of the information.”

The records requested by the Enquirer are evidence of expenditures, and the department’s response provides evidence only that someone else could misuse the records, the dissent stated.

“It is more than a stretch to argue that the department has directly used a receipt for the purchase of gasoline to protect or maintain security,” the dissent stated. “In this case, there is no evidence – or reason to believe – that the department uses its expenses records for anything related to protecting or maintaining security.”

Justice Donnelly also stated that public records requests are interpreted liberally and that the Court should, as it has in the past, “resolve any doubt in favor of disclosure,” which the majority opinion  does not do.

The dissent stated that all disclosure of public records comes with some security concerns. Still, the security interest at stake for releasing travel expense records does not outweigh the public’s right to know how much public money was spent while the governor was in California to watch the Super Bowl, the dissent concluded.

2022-0425. State ex rel. Cincinnati Enquirer v. Wilson, Slip Opinion No. 2024-Ohio-182.

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