Carrie Blackmore Smith

csmith@enquirer.com

A special master, assigned to decide when the state of Ohio has wrongfully denied access to public records, believes the Ohio Department of Public Safety did so concerning the mission of 37 troopers in North Dakota last fall.

But the Ohio Attorney General's Office, responding on behalf of the department, still says no.

The clash over the information began after state troopers, with permission from Gov. John Kasich, responded to a call for assistance in Cannon Ball, North Dakota, the site of the Dakota Access Pipeline construction project.

The Standing Rock Sioux led the call for thousands of "water protectors" from around the country to join them in preventing the construction of the pipeline under the Missouri River at the site, formerly land of the Great Sioux Reservation.

After Ohio troopers embarked in state vehicles with state equipment, The Enquirer requested mission details, including names of those who went and a copy of the contract with North Dakota.

The Department of Public Safety declined the request, claiming the troopers – who appear on video in riot gear – acted undercover and were providing security in a situation that could "prevent ... or respond to acts of terrorism."

The state has a new procedure in which members of the public, including the media, can appeal denial of access to a public record without filing a lawsuit.

It includes mediation, which failed in February in this case, and a review by a special master, assigned by the clerk of Ohio's Court of Claims.

Because the two parties could not agree, special master Jeffery W. Clark reviewed the disputed records and issued a report and recommendation last week.

State lawyers had argued the information could not be released based on safety concerns for the officers and their families.

These "operational response plans will not only be used by North Dakota in the future, but also may be used by the Ohio State Highway Patrol in future protest details," read a rebuttal to The Enquirer's complaint.

But Clark decided the Department of Public Safety "improperly denied" requests for the names of the troopers and documents outlining the assistance agreement.

The department "presents no evidence of retaliatory pursuit of the troopers and their families," Clark wrote.

The state could have withheld the troopers' names while they were deployed but not after they'd returned, wrote Clark, who formerly worked in the Ohio Attorney General's Office and represented the Ohio Peace Officer Training Commission.

Clark points out that there is nothing in Ohio law that prohibits disclosure of an assistance contract, like the one with North Dakota. Clark found most of the contract routine and administrative. It, too, should be released, even if some information is redacted, he wrote.

Clark found The Enquirer's request for correspondence and emails ambiguous and overly broad, agreeing the state office could deny that portion of the request.

The Enquirer agreed to accept Clark's recommendations and asked the Department of Public Safety to do so. "Thank you for your offer, but we decline," Assistant Attorney General Morgan Linn wrote back by email.

Enquirer lawyer Jack Greiner called the move "incredibly disappointing."

"We have made a very reasonable proposal to resolve this matter in a cost-efficient and fair manner," Greiner said. "The Special Master’s report is detailed and reflects considerable thought on his part."

The department has seven days to officially object to Clark's recommendation.

Special master recommendation regarding Ohio trooper request