What The Blade didn't tell its readers about their 'gang map' public records lawsuit

Ohio's Sixth District Court of Appeals

Yesterday I wrote an explanation of why the Toledo Police Department's 'gang map' is NOT a public record, despite what the Toledo Blade wrote in their editorial signed by John Robinson Block.

One of the things the paper said was that they were engaged in a legal battle over the issue. Ohio allows individuals (and media) to file a request for mandamus with a court to force the release of public records.

Interestingly, the Blade didn't explain any details of the lawsuit, so I decided to look it up.

Case number CL-2012-01183 was filed with the Sixth District Court of Apeals on July 11, 2012.

Here's a summary of the mandamus request:

* Reporter Taylor Dungien was told on three occasions that TPD maintains a gang map or "gang territories map" on a wall and electronically in the computer.

* She asked to view the map.

* Sgt. Heffernan, the individual responsible for handling public records requests, told her no because it is an "intelligence piece and we're using it to do our enforcement; it's actively being used."

* She made another request and the city's law director told her it was exempt from Ohio's public records law because it was a confidential law enforcement investigatory record.

(this is exactly the point I made in my post yesterday)

* The Blade maintains that it is a public record because it's a "compilation based on ongoing monitoring of of gang activity in the city" (yes, a lot of typos in the filing...) Accordingly, they claim, it can't be a 'investigatory' record.

* They claim the release of the map will not endanger an officer, victim, witness or informant - nor will it disclose the identity of a suspect.

* They also claim it won't reveal any "specific confidential investigatory techniques or specific investigatory work product."

(Interestingly, this claim that it isn't a work product directly contradicts their story about how long it took them to create their own map and how hard it was to do so, considering the lack of openness the gangs displayed.)

* They also claim that if portions of the map are exempt, the map should be redacted to give them the portions that aren't.

* They finally make the normal arguments that it's in the public interest and request compensation under the public records law.

The Court ordered the city to either release the map or show cause why they didn't have to.

Not surprisingly, the City responded and denied the Blade's claims, stating their original position that the map is exempt. They did admit to not offering a redacted version because it was "not capable of being redacted without becoming completely meaningless."

They also state that, to the point there is a public interest in the map, the "interest favors the effective pursuit of criminal investigations without interference" from the Blade.

The case followed the normal rules of Civil Procedure so after the initial filings, the discovery process would begin. However, on Sept. 20, the paper and the city filed a joint request for a pre-hearing conference because they couldn't agree upon discovery issues.

The court agreed to have them submit the issue - and their respective positions on the issue - to the court. This is where it gets interesting....

The Blade proposed that their attorney be allowed to view the map in confidence, agreeing not to reveal anything of it to the paper, so he could understand the legal basis for the refusal to release it. The city said no. Depositions began.

The paper again requested that the attorney be allowed to view the map under a protective order. The city again said no.

But as the deposition proceeded, the Blade attorney again asked to see it and promised not to reveal any part of it to his client. The city again refused and they agreed to go to the court for resolution of this dispute.

To recap: Having failed to get the map released, the Blade's attorney asked to view it and promised not to tell the paper anything about it. The city, maintained it was not a public record but a confidential record and not subject to discovery. And who could blame them?

You can't insist that an item be revealed in discovery when the item is the very subject of the mandamus action. But the city agreed that the court (judge) could view the document under seal and that they would make it available to the court.

Three judges signed the decision that said the law provided for no "hybrid" form of disclosure that would allow "attorneys eyes only" for the viewing of the map. The judges ruled that either the map was a public record subject to release and viewable by all, or it wasn't. They agreed with the city's position that the court should view the document, consistent with case law. That was December of 2012.

Following extensions of time and depositions, the Blade asked for a summary judgment in their favor, the reasons they believed they proved the record was a public one and asked for the order to release the map.

The city filed their request for summary judgment in their favor, setting out further arguments that supported their position that the map was a confidential law enforcement investigatory record (CLEIR). They also provided a copy of the map to the court.

Following that, the city filed a response objecting to the paper's request for summary judgment. In that response, they reveal various items of information from the deposition: that the map has been actively used as part of criminal investigations and some court cases are pending; the map was compiled for a specific investigatory purpose, but has since been maintained as an investigatory tool and nothing in Ohio law says a CLEIR can only be used once; revealing the map would tip off gangs and reveal the scope of TPD's knowledge about them; and (I love this one) that what other cities do with their crime maps has no relevance whatsoever to what Toledo is doing with theirs.

In accordance with the rules of civil procedure, the paper filed their objection to the city's motion for summary judgment. They claim that the map doesn't show specific crimes, just geography; it doesn't reveal specific techniques, just boundaries; release of the map wouldn't disclose specific houses or locations of suspected gang activity; that the law favors disclosure and that the burden of proof limiting disclosure lies on the part of the city; it doesn't relate to a "specific" investigation and doesn't reveal any specific technique, both of which are required in order to maintain an exemption under the law.

Those objections to the summary judgment were filed on April 18th.

Now it is up to the court to read the positions and arguments and make their decision.

Why The Blade is wrong about Toledo's 'gang map'

The Toledo Blade is doing a series on gangs in the city, which is a good public-interest story and certainly relevant news. It's called "Battle lines; Gangs of Toledo."

But they're not happy with the Toledo Police Department or Mayor Mike Bell because they won't release the map they have showing the territories of the various gangs.

Publisher and Editor-in-Chief John Robinson Block took the unusual action of writing - and signing - an editorial titled "On gang map, Mayor Bell ignores the public's right to know."

He writes:

The people of Toledo have a right to know about gang activity in this city. They have a right to know where it is. They are entitled to see the “gang map” that tells where gang activity is most dangerous and intense.

Many months ago, The Blade asked for that map, which is a public document under Ohio law. The mayor refused to release it. He has persisted in this refusal, even in the abse
nce of legal authority. This refusal is illegal and unjustified.

Except, the refusal is legal.

Ohio Revised Code 149.43 details the state's law about open records, access and penalties for failure to comply. It's one of the best public records laws in the country, generously favoring the public's right to know.

But there are numerous exemptions - items specifically designated as NOT a public record. Section (1) defines what a public record is and also says "Public record" does not mean any of the following: The following list includes this exemption

(h) Confidential law enforcement investigatory records;

The only way the Blade can maintain that the release of the gang map is a public record is to claim that it is not a confidential law enforcement investigatory record. That's also the only way the Mayor can maintain its secrecy.

Block also writes:

One consolation is that The Blade’s map is almost certainly more accurate than the city’s because gang members were naturally more willing to talk with our reporters than police officers.

Well if their map is more accurate, why are they still quibbling with TPD over theirs?

Block then writes:

Our motive is not to defame anyone or to depress readers but to show what is — to tell the truth.

In the final analysis, the gang map is not a matter of the newspaper’s right to know, but the people’s right to know. The Blade is merely the surrogate and servant of the people of Toledo. For only an informed public can govern itself.

For those of you who have followed my writing over the years, you'll know that I gave up coming up with headlines on the Blade's bias and just started numbering them. The local daily has a reputation - deservedly so - for being more of the dictator than the servant and for telling people what they want the people to know - rather than the truth. To say that hysterical laughter followed when I read this sentence, first to myself and then to a group of others, would not do justice to the hysterical laughter that actually followed.

But I digress - so back to the map as a public record...

TPD probably does not have a single map, but a series of maps over time, likely showing the various gang territories and how they have changed over time. Such a map could very legitimately be a confidential investigatory record showing which gangs are expanding, which are declining, which are combining and which are new. How they interact within their territories and with/against each other based upon those territories is an investigatory tool that could help TPD monitor and predict their activities and likely conflicts.

If the maps show disputed territory, it could influence such things as where TPD is placing their (highly controversial) monitoring cameras as well as the routes of their road patrols.

Additionally, if the gangs know what it is that the police know about their territories, it could cause them to change certain behaviors, putting the public further at risk.

If I can come up with such reasons and explanations as for why the TPD gang map is not a public record, I'm certain the mayor, having all the information, can as well. In fact, that's exactly what happened and the Blade promptly sued the city over the issue.

Contrary to what the editor claims in his editorial, the issue is not clear-cut and the public's 'right to know' isn't always outweighed by the public's own safety, or the safety of our police officers, through the protection of confidential investigatory records.

For more information, check out: What The Blade didn't tell its readers about their 'gang map' public records lawsuit

As The Elections Board Turns

Yes, it's a soap opera at the Lucas County Board of Elections, but unlike the TV version, this one has real-world implications for the future of the fair and impartial management of our voting system.

Let's recap some of the characters and story lines of our soap opera:

In a stunning display of brilliant community organizing, our lead character, Jon Stainbrook, manages to take over the Lucas County Republican Party. Unbeknownst to most, though, his real reason for doing so was not the election of Republicans and the advancement of Republican and conservative ideals. No, it was revenge...to exact revenge and retaliation on anybody and everybody who he ever perceived slighted him in any way. He looks the hero, but he's really the villain in this drama.

Stainbrook's sometimes girlfriend (as she has been identified in numerous news reports), Meghan Gallagher, is elected chairman of the LCRP central committee. This position is supposed to recruit and train the members of the central committee - the 'boots on the ground' portion of the party. The elected members of the central committee are supposed to represent their voting precincts and be the communicators between the party structure and the Republicans in the area. They're also the ones responsible for helping to collect signatures on petitions for candidates, going door-to-door, handing out yard signs and making sure the Republicans in their district turn out on election day.

In another story line, Stainbrook - desperate for the pay and PERS benefits associated with being a member of the Board of Elections - struggles to oust two extremely qualified individuals from the BOE in order to gain the seat for himself. He claims it's all about fixing the problems at the BOE, most of which are exaggerated by him and The Blade, but it sounds good to the people and makes for good articles in The Blade to prop him up as the solution to all the woes. After lawsuits and intimidation and innuendo, he succeeds in getting the appointment.

But that's not all...he names Gallagher as the Executive Director to ensure all that he wants to accomplish can be done. With his sometimes girlfriend in charge, he proceeds to get rid of people he doesn't like, firing long-time employees and installing his own crew, some of whom, it is rumored, became members of the central committee and voted for him in return for the promise of employment at the BOE.

Also hired was Gina Kaczala. Her husband Larry was County Auditor and a candidate for Congress. His tragic death in an apparent leap from a parking garage left many stunned and saddened by his loss. Widow Gina, with Stainbrook as her party chairman, ran for the County Auditor position but was defeated. Just to make things interesting, Stainbrook used to work for Larry, but was fired and then ran against him for in the primary for the County Auditor seat. You know politics makes for strange bedfellows....

Then there is Anthony DeGidio, an attorney who first entered our story as the lawyer representing Stainbrook and Gallagher on their many court challenges both against fellow Republicans and in other, unrelated cases. DeGidio was Stainbrook's choice for the second Republican seat on the BOE.

That's the major cast of characters and the general plot line of our soap opera, but it wouldn't be a soap without drama and drama seems to follow Stainbrook and his cronies wherever they go.

* lawsuits by former BOE employees
* questionable activity between Stainbrook and Gallagher in a stopped car
* theft of drugs from a hospital patient

Then there is the 'close, personal relationship' with John Robinson Block, the publisher of The Blade - a relationship Stainbrook has bragged about for years. Many speculate that the favorable media coverage Stainbrook gets is due to that relationship, but others believe it has more to do with the fact that Stainbrook must 'have something incriminating' against JRB, as he's known.

Stainbrook loved to brag that he used to 'set JRB up with girls' back in his younger days. Couple that with his known reputation for secretly recording conversations and editing the tapes to make it seem like the other party said something they didn't and you'll understand why people believe the speculation.

As any watcher of a soap opera will tell you, it's not drama without the friends becoming enemies after some event. Usually it's 'he slept with my sister' sort of thing, but with Stainbrook, it's 'he dared to disagree with me' that results in Friends of Stainbrook (FoS) becoming an enemy.

DeGidio is the latest in that long line of people.

First there was a review of the BOE by the Secretary of State who is responsible for overseeing elections in Ohio. Stainbrook's reaction to the recommendation that Gallager (and the Democrat assistant director) be fired was to keep the two of them and fire everyone else.

DeGidio disagree...and thus began Stainbrook's attempt to oust him from the board. But DeGidio knows things too...will he tell all in his defense of his seat?

Then came the legal challenge to DeGidio's residency - and the appearance of two more characters, including another 'sometimes girlfriend' Kelly Bensman. And also the professional challenge as Gallagher filed an ethics complaint against DeGidio, her attorney in a car accident lawsuit, thus preventing DeGidio from voting on firing her.

While all this is going on, Stainbrook is not raising money for the party (a primary duty of a chairman) and he's violating the bylaws by refusing to notify past chairmen of executive committee meetings. Of course, the past chairman not being notified is the same individual he tried to kick off the BOE...as you know, everyone and everything in a soap opera is interconnected.

And just yesterday, a new twist arose. John Irish, a past party chairman of the Lucas County Democratic Party and new member of the BOE, introduced a new policy at the BOE meeting forbidding the unauthorized recording of conversations. ZING! Stainbrook voted against the policy - wonder why?

It was also revealed the Kazcala filed a harassment complaint against Gallagher. The board voted 3-1 to refer the investigation to the county's human resources department. Stainbrook voted no on that as well.

Enter Stainbrook's persecution complex - it's all about trying to get rid of him and Gallagher - there's nothing to any of this and it's all political.

So now you're primarily caught up on the various story lines and ready for the next episode.

Will Stainbrook manage to succeed in getting a second challenge to DeGidio's residency heard by the board?

Will Gallagher be found guilty of harassment?

Will Kaczala and DeGidio join together to write a best-selling tell-all book about their experiences with Stainbrook?

Will The Blade grow weary of this and turn on Stainbrook?

Will the Republicans manage to get an actual chairman more focused on the party than personal vendettas?

Will Gallagher be blamed for the blank audio recording of the last meeting? (that's one you didn't know about) And was there something on that audio tape that might have proved incriminating to someone?

Will the board follow the recommendations of the Secretary of State and fire Gallagher and Dan DeAngelis, the assistant director?

Will the board remember that they gave Gallagher and DeAngelis until yesterday's meeting to finalize a working organizational chart or face possible firing?

Stay tuned for the next episode of As the Election Board Turns....

Thurber's fleeting thoughts on a sunny morning

* Lucas County Commissioners have tabled the plan put forward by Pete Gerken to change Lucas County's form of government to a charter council. Under his proposal, we would have voted in November for members of a committee to study and then present a county charter. Gerken explained that there wasn't enough interest among the citizens to run for the 15 positions, reflecting the general lack of interest fellow commissioner Ben Konop found for his proposal to adopt Cuyahoga's charter language.

So while the Democrats have abandoned their support for The Blade's latest fad, Republican Party Chairman Jon Stainbrook is still 'on the streets' trying to gather the signatures Konop couldn't in order to move the agenda of The Blade forward.

Now, I could go so many places with this:

- Did Gerken present a competing idea specifically to derail Konop's? Did he privately discourage people from expressing an interest in his 'committee plan' in order to demonstrate a complete lack of interest from the community? Knowing Pete, that is very likely.

- Why is the Republican Party pushing so hard to carry out the wishes of the local paper and its publisher? We all know it's because of the close, personal relationship Stainbrook has with John Robinson Block. But are Republicans as interested in the idea as his supporters are? And have his supporters who are going door-to-door actually evaluated the plan or looked at the pros and cons? Or did they just 'believe' what Stainbrook was telling them?

- Is this 'three strikes and you're out' for The Blade? They failed to garner support for their push to keep the old United Way Building. They failed to garner support for their push to prevent the YMCA from selling/closing the South Toledo Y. Now they have failed to garner support for their county charter form of government. And they just raised the price of their daily paper to $1.00. What's next?

- Stainbrook's petitions are due tomorrow and he needs over 14,000 valid signatures. If he doesn't get them, will his self-promoted 'reputation' for being able to put 'boots on the ground' be diminished? I mean, in other people's minds - not his own....

* Toledo Public Schools has a new superintendent, Jerome Pecko, and I wish him all the luck in the world. I want to have a good public school system in Toledo - I just disagree with the methods our current board is employing to achieve that goal. But I believe he may have gotten off on the wrong foot. TPS is facing a huge deficit and will be putting a 7.8 mill levy on the ballot for November, after a stinging defeat of their income tax plan in May.

Pecko also said something a bit disturbing (clip being played on WSPD). He said that if students are leaving TPS because they're afraid of a diverse student population, then their parents are doing them a disservice. Now, he didn't say that was happening, but 'if.' However, 'if' that is what he thinks the problem is, he is going to work to address an issue that isn't the cause of students leaving the schools. And 'if' he is merely reflecting the impressions or thoughts of the TPS board, then it's no wonder the school system has such a terrible reputation for actual performance.

Block paper to charge for on-line content

Breitbart is reporting that the Pittsburgh Post-Gazette will launch a members-only website and provide on-line content for a fee.

The Pittsburgh Post-Gazette said "PG+" would be a "members-only website with interactive features and exclusive content" available to subscribers for 36 dollars a year or for 3.99 dollars a month.

It said "PG+" would not replace Post-Gazette.com, the newspaper's current website, but would feature "a new stream of exclusive blogs, videos, live chats and behind-the-scenes insights into the news of the day."

Post-Gazette.com will continue to provide its mix of content and would remain free, the newspaper said.

The Post-Gazette's move comes as newspapers across the United States grapple with a steep plunge in print advertising revenue, steadily declining circulation and the migration of readers to free news online.

The Post-Gazette is owned by Block Communications which also owns the Toledo Blade. Do you think they'll offer the same for the Blade - and would you pay?

Finkbeiner, Block still trying to dictate to United Way

I knew it was too good to be true.

Mayor Carty Finkbeiner and John Robinson Block, publisher of The Blade, are still trying to interfere in a private property decision.

The Toledo Free Press has the details of their attempt to 'rally then tenants' against the United Way.

A history of the pressure these individuals have tried to exert is available, chronologically here, here, here, here, here, and here.

Yes, I know that's a lot of background to catch up, but that's the way things work in Toledo and with our local paper. The publisher of The Blade spoke and politicians dutifully fell in line to try and preserve a dilapidated, costly building. And despite the fact that the United Way has broken ground on their new building, the fight is not over.

Apparently, Carty, Block or both convinced a local company to develop a renovation plan for the building. However, their plan addressed only two levels of the multi-floor building, was as costly as building new, and was rejected - as were the previous plans to renovate.

I'll say it again - if Carty and Block want the building to stay up, they can purchase it and do with it whatever they please. However, this being Toledo, they are used to bullying, expecting people to ask 'how high' when they say 'jump,' and getting their way when they attempt to dictate to others.

Perhaps the United Way, with the backing of The Stranahan Foundation, will be able to continue to resist this pressure.

For the good of all Toledo, I hope so.