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UNITED STATES DISTRICT COURT


SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

JOHN DOE 1 and JOHN DOE 2, : Case No. 1:19-cv-475


:
Plaintiffs, : Judge Michael R. Barrett
:
v. :
: DEFENDANT CITY OF
CITY OF CINCINNATI, et al., : CINCINNATI’S
: MEMORANDUM IN
Defendants. : OPPOSITION TO PLAINTIFFS’
: MOTION FOR A TEMPORARY
: RESTRAINING ORDER

____________________________________________________________

“The makers of our Constitution undertook to secure conditions favorable


to the pursuit of happiness. . . . They conferred, as against the Government,
the right to be let alone—the most comprehensive of rights and the right
most valued by civilized men.”
Justice Louis D. Brandeis, dissenting in
Olmstead v. United States, 277 U.S. 438, 478 (1928).

“Publicity is justly commended as a remedy for social and industrial


diseases. Sunlight is said to be the best of disinfectants; electric light the
most efficient policeman.”
Louis D. Brandeis, Other People’s Money (1914).

I. Introduction

Plaintiffs are not entitled to a temporary restraining order because all the City is

doing and has done is comply with the Ohio Public Records Act as written by the Ohio

General Assembly, as interpreted by state courts, and as demanded by the public. It has—

to the extent permitted by current law—respected the dueling values of a right to privacy

and transparent government.

Plaintiffs’ position, though understandable, is grounded in a misunderstanding of

the facts underlying this case as well as a misunderstanding of the requirements of the

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Ohio Public Records Act. The actions of the City Solicitor’s office on behalf of its

Councilmember clients do not violate the federal constitutional rights of Plaintiffs.

Additionally, the City is immune from Plaintiffs’ invasion of privacy claim.

II. The City has complied with the public records act

Although Plaintiffs imply otherwise, all the City has done is comply with the Public

Records Act. It cannot rewrite the Public Records Act. It cannot control the requests it

receives. And it cannot dictate how those records are reported on in the media. All it can

do is attempt to fulfill its duties while mitigating risk of loss of taxpayer dollars.

A. The Ohio Public Records Act is broad and broadly construed

Ohio public records law defines a record as “any document, device, or item,

regardless of physical form or characteristic, including an electronic record as defined in

section 1306.01 of the Revised Code, created or received by or coming under the

jurisdiction of any public office of the state or its political subdivisions, which serves to

document the organization, functions, policies, decisions, procedures, operations, or

other activities of the office.” R.C. 149.011(G). Public records are “records kept by any

public office.” R.C. 149.43(A).

Public records are not limited to communications between elected officials, or even

to communications between City employees. Correspondence sent by private citizens to

any public official even if intended to be confidential are public record when a public office

could rely on it when making determinations. Chernin v. Geauga Park Dist., 2018-Ohio-

1579 (Ct. of Claims), ¶¶ 12-15. In Chernin, the Geauga Park District did not release a letter

because the author specifically asked the park commissioner to keep her identity hidden

because she was “in fear of harassment,” yet the court still found it was subject to release.

Id. at ¶¶ 12, 20. The law makes no distinction based on the location of a communication

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either. The communication’s content makes it public record. Even public records located

on personal cell phones or in private email accounts remain public records subject to

disclosure. See Sinclair Media v. City of Cincinnati, 2019 Ohio Mis. LEXIS 218 (Ct. of

Claims), attached as Exhibit A for the Court’s convenience.

Interactions with local government that many people would prefer to keep private

are similarly public record. In close cases, the Ohio Supreme Court has instructed that

doubts must be resolved in favor of disclosure. State ex rel. Cincinnati Post v. Schweikert,

38 Ohio St.3d 170, 173 (1988). For example, law enforcement is not permitted to redact

911 calls, even if they contain the caller’s social security number. State ex rel. Cincinnati

Enquirer v. Hamilton County, 75 Ohio St.3d 374 (1996). Body-worn camera-specific

exemptions were not addressed by the legislature until April 2019, long after they were in

use. House Bill 425 of the 132nd General Assembly.

More than that, neither Ohio courts nor records custodians are permitted “to

create new exceptions to R.C. 149.43 based on a balancing of interests or generalized

privacy concerns.” State ex rel. WBNS TV, Inc. v. Dues, 101 Ohio St.3d 406, 411 (2004)

(explaining that the General Assembly specifically rejected the Ohio Supreme Court’s

privacy balancing test). Of course, if the City does not comply with the Public Records Act,

it risks a judgment against it, including an award of attorney’s fees. R.C. 149.43(C). These

fees can be substantial.

Finally, Ohio law also mandates that public records may only be destroyed

according to an applicable retention schedule. R.C. 149.351. If a record is not on a records

retention schedule, the public entity is not permitted to delete it until the records

retention schedule is updated. Wagner v. Huron County Bd. of County Comm’rs, 2013-

Ohio-3961 (6th Dist.), ¶ 17. Moreover, if a record, like an email, is improperly deleted, the

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public entity is responsible, at its own cost, to recover the deleted material, and no

pleading of “too much expense” justifies noncompliance with the Public Records Act.

State ex rel. Toledo Blade Co. v. Seneca County Bd. of Comm’rs, 120 Ohio St.3d 372, 383

(2008).

B. The City complied with a valid public records request

Shortly after the Ohio Court of Claims released a decision finding that text

messages on private cell phones can be public record if they discuss City business, the City

received a deluge of requests, including one from Brian Shrive who purported to be

requesting certain records on behalf of a client. Exhibit B. The City worked to produce

responsive records—those which documented the activities of the various Council offices

involved in the request. The responsive text messages it produced to Shrive are Exhibits

C, D, and E. Importantly, Plaintiffs have not made any allegation that the messages

released are protected from exemption by any source of law.

III. The Court should not issue a temporary restraining order

None of the factors to receive a temporary restraining order are in Plaintiffs’ favor.

First, they cannot establish a substantial likelihood of success on the merits because the

voluntary compilation of the Councilmembers’ text messages did not violate the rights of

the Plaintiffs. Second, there is no evidence of irreparable harm. Third, there is harm to

third parties because a restraining order could cause the City to violate the public records

act. Finally, an injunction is not in the public interest.

A. Plaintiffs are wrong on the merits

Plaintiffs do not have standing to contest a Fourth Amendment violation for text

messages received by the City Councilmembers. Additionally, any burden to Plaintiffs’

right of association is outweighed by the compelling government interest in governmental

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transparency. Additionally, Plaintiffs have not raised a cognizable due process claim, and

the City is immune from the invasion of privacy tort.

1. Plaintiffs lack an objective expectation of privacy in text


messages received by City public officials

Plaintiffs cannot demonstrate a substantial likelihood of success on the merits

because they do not have standing to raise a Fourth Amendment claim against the City

for text messages they sent to City Councilmembers. To establish a Fourth Amendment

violation, a plaintiff must first demonstrate an actual, subjective expectation of privacy,

and whether that expectation of privacy was a “legitimate, objectively reasonable

expectation.” United States v. Smith, 263 F.3d 571, 583 (6th Cir. 2001). In general, the

sender of a communication only has a reasonable expectation of privacy until the message

is received. United States v. King, 55 F.3d 1193, 1195 (6th Cir. 1995) (holding no

expectation of privacy in letters once they are delivered). This is true even if the sender

directs the recipient to keep the letter private. Id. Courts have continued to apply this

doctrine in the modern age, including email communications. United States v.

Charbonneau, 979 F.Supp. 1177, 1184 (S.D. OH 1997) (noting that once a message is

received, the control of it lies with the recipient, not the sender). Courts have applied a

similar rationale to text messages. United States v. Gardner, 887 F.3d 780,784 (6th Cir.

2018) (applying third-party consent doctrines to cell phone text messages); State v.

Patino, 93 A.3d 40 (R.I. 2014)(holding that a person does not have an expectation of

privacy in texts found on someone else’s phone); State v. Tentoni, 2015 WI App 77 (WI

App. 2015), ¶¶ 9-11 (holding that no privacy in text messages received by someone else).

Here, Plaintiffs have not offered any evidence that their own phones were copied

by the City; rather, they argue they did not consent to their messages being replicated.

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That argument is fundamentally flawed because once the Plaintiffs sent the messages that

were received by the Councilmembers, they lost all Fourth Amendment privacy

expectations associated with the content of the messages. More than that, to the extent

that any Plaintiffs discussed City business with City officials, their reasonable expectation

of privacy is further diminished.

Plaintiffs will no doubt reply that recent United States Supreme Court cases have

overruled this precedent. They did not. While Riley v. California does expound upon the

amount of information today’s cell phones contain, it is properly read solely as limiting

warrantless searches incident to arrest and no more. 573 U.S. 373 (2014). Moreover, in

the five years since its release, the Sixth Circuit has not overruled or questioned the

essential holding of King as applied to texts. Similarly, the Court in Carpenter explicitly

stated that “Our decision today is a narrow one.” Carpenter v. United States, 138 S.C.

2206, 2220 (2018). The Court explained that the third-party doctrine did not apply to cell

phone location data in part because it is shared constantly with the cell provider with little

to no action by the person. Id. at 2219-2220. Here, sending a text message to another

person is a voluntary act that requires actual thought and action by the sender. The

concerns raised in Carpenter are not present.

As Plaintiffs cannot establish standing for Fourth Amendment purposes, they also

cannot establish a substantial likelihood of success on the merits.

2. Plaintiffs’ freedom of association is not burdened by the City


maintaining a mix of public and nonpublic records until
they can be properly deleted

Plaintiffs’ First Amendment claim also fails. Here it is important to put the First

Amendment claim in context. This is not a claim of compelled speech—no one required

Plaintiffs to communicate with the Councilmembers or expose their identities to the

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Councilmembers. NAACP v. Alabama, 357 U.S. 449 (1958). Neither is the City requiring

Plaintiffs to turn over any information about them or their associations in order to receive

a permit. Balew v. Giles County Adult-Oriented Establishment Bd, 2005 U.S. Dist. LEXIS

46996 (M.D. TN 2005). Rather, the City Solicitor’s Office has acted on behalf of its clients

to take steps to avoid unintentional destruction of public records and assist in compliance

with Ohio Public Records law. It appears that Plaintiffs are arguing that even by retaining

that information, their associational rights are affected.

But Plaintiffs’ arguments rest on a faulty premise: that the Councilmembers will

release non-public communications. Plaintiffs have not pointed to a single released

message that is not a public record. And even assuming that an associational right is

implicated here, the public’s right to a transparent government is a compelling

governmental interest which must be weighed against Plaintiffs’ interest in anonymity.

“One of the salutary purposes of the Public Records Law is to ensure accountability of

government to those being governed.” Kallstrom v. City of Columbus, 136 F.3d 1055,

1065 (6th Cir. 1998), citing State ex rel. Strothers v. Wertheim, 80 Ohio St.3d 155 (1997).

As Plaintiffs cannot establish the City has or will reveal non-public record, its First

Amendment claim fails as well.

3. Plaintiffs’ Fourteenth Amendment claims fail


Plaintiffs also raise due process claims without citing to a single Fourteenth

Amendment case for support. In order to establish a procedural due process violation,

Plaintiffs must first identify a life, liberty, or property interest protected by the Due

Process Clause. Doe v. Ohio State, 136 F.Supp. 3d 854, 866 (S.D. OH 2016). Plaintiffs

have not identified the interest that is at stake by the City’s actions. And while it is true

that the Sixth Circuit has recognized a protected privacy interest that prohibits some

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information from release under public records law, that type of information is not at issue

here. Kallstrom v. City of Columbus, 136 F.3d 1055 (6th Cir. 1998).

In Kallstrom, the Sixth Circuit found a substantive due process right to

nondisclosure only where the release of information would rise to the level of threatening

the personal security and bodily integrity of the police officers involved. Id. at 1064.

Plaintiffs have made no argument that their personal security or bodily integrity is at

stake, unlike the police officers in Kallstrom who reasonably feared for their safety if gang

members received their identities. Id. at 1065. At most, Plaintiffs have identified

information they assert the City possesses that would not constitute public record. And if

the information is not subject to disclosure under the public record act, then the City will

not disclosure these highly personal matters.

Plaintiffs’ argument is similar to the one raised in Doe v. Ohio State. 136 F.Supp.

3d 854, 869 (S.D. OH 2016). In that case, the Court declined to issue a preliminary

injunction prohibiting Ohio State from investigating Doe. Id. Doe was concerned that

records of the investigation might be disclosed in the future. Id. The Court rejected Doe’s

speculation as a basis for an injunction, finding that FERPA prohibited the release of the

records that would be created. Id. Similarly, Plaintiffs have only presented the Court with

the same type of speculation. It should be rejected, and the injunction request should be

denied.

4. The City is not liable


Finally, the City is immune from intentional torts like invasion of privacy. R.C.

2744.02(A)(1); see also Sollenberger v. Sollenberger, 173 F.Supp. 3d 608, 627 (S.D. OH

2016). And even if immunity did not apply, Plaintiffs cannot establish an invasion of

privacy claim because the City’s actions were not done in a way that would “outrage or

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cause mental suffering, shame or humiliation to a person of ordinary sensibilities.” Luis

v. Zang, 2018 U.S. Dist. LEXIS 58753 (S.D. OH 2018). Therefore, Plaintiffs have no

substantial likelihood of success on the merits of this claim either.

B. Plaintiffs have not demonstrated irreparable harm

As explained above, Plaintiffs’ claim of irreparable harm is premised on

speculation and baseless conspiracy claims. The Plaintiffs only speculate that the City will

release non-public record communications with Councilmembers. They also imply that

the City would do this without its client’s consent to further some kind of conspiracy with

Mr. Shrive.

Nothing could be farther from the truth. The Court should reject this notion out of

hand.

C. An injunction will harm third parties and is not in the public


interest
Contrastingly, there will be harm to third parties if this injunction is issued. All the

City has done to date is respond to public records requests by producing responsive public

records, yet Plaintiffs have still brought this suit. This indicates that they have a different

idea of what is public record (likely one that is unsupported by Ohio law). Therefore,

contrary to their assertions, this restraining order will touch on the City’s ability to

respond to public records requests within the reasonable amount of time required under

the law. The Sixth Circuit has indicated that access to government information is a

compelling interest. See Kallstrom v. City of Columbus, 136 F.3d 1055, 1065 (6th Cir.

1998). That interest—which is by definition the public’s interest—will be impacted if the

Court issues an injunction. Therefore, these factors both weigh against issuance of an

injunction.

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IV. Conclusion
The City has complied with the law and not violated anyone’s constitutionally

recognized privacy rights. The Court should deny Plaintiffs’ motion for a temporary

restraining order.

Respectfully submitted,

PAULA BOGGS MUETHING (0080018)


City Solicitor

s/ Emily Smart Woerner


Emily Smart Woerner (089349)
Peter J. Stackpole (0072103)
City Hall, Room 214
801 Plum Street
Cincinnati, Ohio 45202
Telephone: (513) 352-3307
Fax: (513) 352-1515
Email: emily.woerner@cincinnati-oh.gov
Counsel for Defendant City of Cincinnati

CERTIFICATE OF SERVICE

I hereby certify that on July 2, 2019, a true and accurate copy of the foregoing was

filed electronically. Notice of this filing will be sent to all parties by operation of the Court’s

electronic filing system. No copies of this filing are being mailed to any parties, as all

parties are currently being served via the Court’s electronic filing system and thereby may

access this filing through that system.

s/ Emily Smart Woerner


Emily Smart Woerner (089349)

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