[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State 

ex rel. Ohio Republican Party v. FitzGerald, Slip Opinion No. 2015-Ohio-5056.] 

NOTICE 

This slip opinion is subject to formal revision before it is published in an 

advance sheet of the Ohio Official Reports. Readers are requested to 

promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 

South Front Street, Columbus, Ohio 43215, of any typographical or other 

formal errors in the opinion, in order that corrections may be made before 

the opinion is published. 

SLIP OPINION NO. 2015-OHIO-5056

THE STATE EX REL. OHIO REPUBLICAN PARTY v. FITZGERALD, CTY.

EXECUTIVE, ET AL. 

[Until this opinion appears in the Ohio Official Reports advance sheets, it 

may be cited as State ex rel. Ohio Republican Party v. FitzGerald, Slip Opinion 

No. 2015-Ohio-5056.] 

Mandamus—Public records—R.C. 149.43—Security records—County executive 

key-card-swipe data—Change in circumstances undermined basis for 

withholding requested data—Writ granted. 

(No. 2014-1141—Submitted June 9, 2015—Decided December 9, 2015.) 

IN MANDAMUS. 

_____________________ 

Per Curiam.

{¶ 1} The Ohio Republican Party (“ORP”) seeks a writ of mandamus 

compelling Cuyahoga County, its former county executive Edward FitzGerald, and 

Koula Celebrezze, the public-records manager for the Department of Public Works, 

to fulfill its public-records request seeking records of key-card-swipe data 
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documenting when FitzGerald entered and exited county parking facilities and 

buildings. 

{¶ 2} At the time of the ORP’s request, the key-card-swipe data were 

“security records” exempted from release pursuant to R.C. 149.433, because, 

according to an affidavit by a detective in the Cuyahoga County Sheriff’s Office, 

FitzGerald had received threats and release of that data would have diminished the 

county’s ability to protect him and maintain the security of the office of the county 

executive. Thus, upon review, the county had no obligation to release these records. 

{¶ 3} Subsequent to receipt of the public-records request, circumstances 

changed: Cuyahoga County moved its administrative offices to a new building; it 

demolished its former offices to build a hotel and convention center; and 

FitzGerald’s term of office expired, and he is no longer the county executive. In 

addition, the county released the records to members of the media in January of this 

year and thereby waived its argument that they are not subject to the public-records 

law. Accordingly, there is no longer any basis to withhold the requested key-cardswipe data, and therefore we grant the writ and order release of the records. 

Facts and Procedural History 

{¶ 4} On May 22, 2014, Chris Schrimpf, the communications director for 

the ORP, e-mailed a public-records request to Celebrezze and Mary Segulin 

seeking “the county’s key card swipe data that shows when an employee enters or 

leaves a county building” for five individuals, including FitzGerald. He sent the 

request to Emily Lundgard, the county’s director of communications, on June 2, 

and on June 9, he e-mailed her again, clarifying that his requests were based on the 

Cuyahoga County Code, the Cuyahoga County Charter, and the Ohio Public 

Records Act and indicating that because the request sought only information that 

the county had already denied to the Plain Dealer, further delay in granting or 

denying the request should be unnecessary. He sent a follow-up e-mail to 

Celebrezze on June 17, reiterating the prior request and also requesting the key-
January Term, 2015 

3

card-swipe data for a sixth person. Celebrezze acknowledged receiving the request 

the next day. 

{¶ 5} The ORP filed this mandamus action on July 9, 2014, alleging that the 

county had failed to respond to its public-record requests, even though the same 

types of records “have readily been provided with respect to other employees or 

officials of the County of Cuyahoga.” The ORP asserts that the records at issue 

here are public records pursuant to the Public Records Act and the Cuyahoga 

County Code and that the county has neither fulfilled the record request nor denied 

it, nor has it provided a written explanation justifying denial of the request as is 

required by law. The ORP therefore seeks a writ of mandamus compelling 

respondents to produce the requested records. 

{¶ 6} On July 11, Majeed Makhlouf, the law director for Cuyahoga County, 

responded to Schrimpf’s request, explaining that he could not release the key-cardswipe data for FitzGerald because “the Sheriff’s Department [had] confirmed the 

existence of verifiable security threats barring the release of this information 

pursuant to R.C. 149.433.” He provided the key-card-swipe data for the five other 

individuals but indicated that the county did not have information on when 

employees left the building because employees are not required to swipe their key 

cards to exit. 

{¶ 7} On July 21, Schrimpf requested key-card-swipe data going back to 

January 2011, and he e-mailed again on July 29 to ask when he would receive the 

key-card-swipe records he had requested but not yet received. 

{¶ 8} The next day, Makhlouf responded that the July 21 request was being 

processed “as expeditiously as possible” in light of the move to the new county 

administration building. On July 31, he e-mailed the key-card-swipe data requested 

but again excluded data relating to FitzGerald. 

{¶ 9} We granted an alternative writ on September 24, 140 Ohio St.3d 1435, 

2014-Ohio-4160, 16 N.E.3d 681, and the parties submitted briefs and evidence. 
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{¶ 10} In support of its position that the key-card-swipe data is excepted 

from disclosure, the county presented the affidavit of David DeGrandis, a senior 

administrative officer with the Cuyahoga County Department of Information 

Technology, who averred that the county installed the key-card system “for the 

protection of [the county’s] facilities and those who use them.” He explained that 

users have different levels of access to the building and that the key-card-swipe 

system is used to determine whether a user has security clearance to access a 

particular part of the building. He also stated that the key-card-swipe data can 

reveal “sensitive security information,” so that 

if an individual with high-level security credentials, such as the 

County Executive, utilizes a non-public entryway to enter an area 

that is secured via the key-card system without the presence of 

security personnel, the security key-card data will not only reveal 

the time patterns of entry, but it will also reveal the existence of the 

non-public, secured entryway itself. 

{¶ 11} The county also presented the affidavit of D. Paul Soprek, a detective 

with the Cuyahoga County sheriff’s department and director of the Principal 

Protection Unit, which is charged with protecting the county’s public officials. He 

claimed that the Principal Protection Unit “is investigating a number of verified 

threats * * * against Executive FitzGerald” and asserted that “it is critical to protect 

the manner and pattern of travel, ingress and egress, and timing. This is precisely 

the kind of information that the county’s security key-card data reveals. Release of 

the security key-card data for the County Executive diminishes the effectiveness of 

the Principal Protection Unit and its ability to protect the County Executive.” 

{¶ 12} Nonetheless, on January 7, 2015, Lundgard, the county’s director of 

communications, released FitzGerald’s key-card-swipe data to the Cleveland Plain 
January Term, 2015 

5

Dealer. The ORP e-mailed Makhlouf asking whether the county would fulfill its 

public-records request, but Makhlouf replied that the request had been properly 

denied when it was submitted and invited the ORP to submit a new request “based 

on the changed circumstances.” 

Analysis 

Motion for oral argument 

{¶ 13} The ORP has moved for oral argument, which is discretionary in an 

original action. S.Ct.Prac.R. 17.02(A). Because we are able to decide the issues in 

this case without oral argument, we deny that motion. State ex rel. Mahajan v. 

State Med. Bd. of Ohio, 127 Ohio St.3d 497, 2010-Ohio-5995, 940 N.E.2d 1280, 

¶ 65. 

Show-cause order and motion to strike 

{¶ 14} On March 25, 2015, we ordered the ORP to show cause why the case 

should not be dismissed as moot based on media reports that the county had 

released the key-card-swipe data to the press. 142 Ohio St.3d 1407, 2015-Ohio1099, 27 N.E.3d 538. As we explained in State ex rel. Anderson v. Vermilion, 134 

Ohio St.3d 120, 2012-Ohio-5320, 980 N.E.2d 975, ¶ 18, “providing the requested 

records to a relator generally renders moot a public-records mandamus claim.” 

{¶ 15} However, in response to the show-cause order, the ORP asserts that 

the county still has not provided it all of the requested records. The county admits 

in its memorandum in response that it released “similar” records to the Plain 

Dealer, but it contends that the records sought in this action are security and 

infrastructure records that the county is not required to release. And the county 

indicates that if the ORP submitted a new request, the county would “place it 

through the appropriate channels.” 

{¶ 16} The ORP then moved to strike the county’s memorandum in 

response, arguing that it constitutes “supplemental argument and briefing” in 

violation of Sup.Ct.Prac.R. 16.08. However, the county submitted additional 
SUPREME COURT OF OHIO

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evidence to prove that it had exercised its discretion to provide FitzGerald’s keycard-swipe data to the press, information that is relevant to determining whether 

this action is moot. In State ex rel. Cincinnati Enquirer, Div. of Gannett Satellite 

Information Network, Inc. v. Dupuis, 98 Ohio St.3d 126, 2002-Ohio-7041, 781 

N.E.2d 163, ¶ 8, we noted that “[a]n event that causes a case to become moot may 

be proved by extrinsic evidence outside the record.” We therefore deny the motion 

to strike. 

{¶ 17} And because the county has not released the records to the ORP and 

continues to maintain that pursuant to R.C. 149.433, FitzGerald’s key-card-swipe 

data are not public records that must be released, we conclude that this case is not 

moot. 

Motions to take judicial notice 

{¶ 18} The ORP filed two motions asking the court to take judicial notice 

of information on the county’s governmental website—specifically, the county’s 

announcements that the county executive’s office had moved to a new building and 

that a new county executive had replaced FitzGerald. Pursuant to Evid.R. 201(B), 

courts may take judicial notice of facts not subject to reasonable dispute, and here, 

these motions are unopposed and the county posted the information on its own 

website. Thus, the motions to take judicial notice of this information are well taken 

and granted. 

Merits 

{¶ 19} “Mandamus is the appropriate remedy to compel compliance with 

R.C. 149.43, Ohio’s Public Records Act.” State ex rel. Physicians Commt. for 

Responsible Medicine v. Ohio State Univ. Bd. of Trustees, 108 Ohio St.3d 288, 

2006-Ohio-903, 843 N.E.2d 174, ¶ 6; R.C. 149.43(C)(1). Although we liberally 

construe the Public Records Act in favor of access to public records, “the relator 

must still establish entitlement to the requested extraordinary relief by clear and 
January Term, 2015 

7

convincing evidence.” State ex rel. McCaffrey v. Mahoning Cty. Prosecutor’s 

Office, 133 Ohio St.3d 139, 2012-Ohio-4246, 976 N.E.2d 877, ¶ 16. 

{¶ 20} But here, the county asserts that the requested records are exempt 

from disclosure pursuant to R.C. 149.433. As we explained in State ex rel. 

Cincinnati Enquirer v. Jones-Kelley, 118 Ohio St.3d 81, 2008-Ohio-1770, 886 

N.E.2d 206, 

[e]xceptions to disclosure under the Public Records Act, 

R.C. 149.43, are strictly construed against the public-records 

custodian, and the custodian has the burden to establish the 

applicability of an exception. * * * A custodian does not meet this 

burden if it has not proven that the requested records fall squarely 

within the exception. 

Id. at ¶ 10. 

{¶ 21} R.C. 149.433(B) provides that “[a] record kept by a public office that 

is a security record or an infrastructure record is not a public record under section 

149.43 of the Revised Code and is not subject to mandatory release or disclosure 

under that section.” 

{¶ 22} R.C. 149.433(A)(3)1

 defines the term “security record”: 

(3) “Security record” means any of the following: 

(a) Any record that contains information directly used for 

protecting or maintaining the security of a public office against 

attack, interference, or sabotage; 

 

1

 This is the current version of R.C. 149.433. The statute was amended slightly in September 2014, 

Am.Sub.H.B. 487, but the change is not relevant to this opinion. 
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8

(b) Any record assembled, prepared, or maintained by a 

public office or public body to prevent, mitigate, or respond to acts 

of terrorism, including any of the following: 

(i) Those portions of records containing specific and unique 

vulnerability assessments or specific and unique response plans 

either of which is intended to prevent or mitigate acts of terrorism, 

and communication codes or deployment plans of law enforcement 

or emergency response personnel; 

(ii) Specific intelligence information and specific 

investigative records shared by federal and international law 

enforcement agencies with state and local law enforcement and 

public safety agencies; 

(iii) National security records classified under federal 

executive order and not subject to public disclosure under federal 

law that are shared by federal agencies, and other records related to 

national security briefings to assist state and local government with 

domestic preparedness for acts of terrorism. 

(c) An emergency management plan adopted pursuant to 

section 3313.536 of the Revised Code. 

{¶ 23} We construed R.C. 149.433(A)(3) in State ex rel. Plunderbund 

Media, L.L.C., v. Born, 141 Ohio St.3d 422, 2014-Ohio-3679, 25 N.E.3d 988, 

explaining that “security records” include those that are directly used for protecting 

and maintaining the security of a public office as well as the public officials and 

employees of that office. Id. at ¶ 20. There, the Director of Public Safety had 

presented evidence that disclosure of records documenting threats against the 

governor “ ‘would expose security limitations and vulnerabilities,’ ” id. at ¶ 24 

(quoting the affidavit of John Born), could “ ‘reveal patterns, techniques or 
January Term, 2015 

9

information’ related to security,” id. at ¶ 25 (quoting the affidavit of Highway Patrol 

Superintendent Paul Pride), and “ ‘could be used to commit terrorism, intimidation, 

or violence,’ ” id. at ¶ 26 (quoting the affidavit of Ohio Homeland Security 

Executive Director Richard Baron). Based on that evidence, we concluded that 

those records, which involved direct threats against the governor, were security 

records not subject to release as public records, because they were directly used to 

protect and maintain the secure functioning of the governor’s office. Id. at ¶ 30. 

{¶ 24} Similarly, in this case, the county withheld release of the key-cardswipe data because there had been verified threats against FitzGerald, and 

according to Detective Soprek, it was “critical” to protect information regarding 

FitzGerald’s “manner and pattern of travel, ingress and egress, and timing” that 

would be revealed by the key-card-swipe data. Soprek also averred that release of 

the key-card-swipe data would “diminish[ ] the effectiveness of the Principal 

Protection Unit and its ability to protect the County Executive.” Thus, pursuant to 

Plunderbund, the key-card-swipe data contain information directly used for 

protecting or maintaining the security of a public office, and for that reason, they 

are “security records” within the meaning of R.C. 149.433(A)(3). See Plunderbund 

at ¶ 28. 

{¶ 25} We reject the county’s contention that the key-card-swipe data are 

exempt from release as infrastructure records. R.C. 149.433(A)(2) defines 

“infrastructure record” to mean 

any record that discloses the configuration of a public office’s or 

chartered nonpublic school's critical systems including, but not 

limited to, communication, computer, electrical, mechanical, 

ventilation, water, and plumbing systems, security codes, or the 

infrastructure or structural configuration of the building in which a 

public office or chartered nonpublic school is located. 
SUPREME COURT OF OHIO

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“Infrastructure record” does not mean a simple floor plan that 

discloses only the spatial relationship of components of a public 

office or chartered nonpublic school or the building in which a 

public office or chartered nonpublic school is located. 

{¶ 26} The key-swipe data sought by the ORP does not disclose the 

configuration of a public office’s critical systems. Rather, it shows when 

FitzGerald entered the building each day—facts unrelated to the building’s 

structural configuration. And although the affidavit of David DeGrandis indicates 

that the key-swipe data could “reveal the existence of [a] nonpublic, secured 

entryway,” DeGrandis does not specify that the data would reveal the location of 

such an entryway—information the ORP did not seek in its request. In any case, 

the location of any secured entrances would be observable by the public and would 

appear on “a simple floor plan that discloses only the spatial relationship of 

components of * * * the building in which a public office * * * is located,” and 

such a floor plan is expressly excluded from the definition of an infrastructure 

record. R.C. 149.433(A)(2). Thus, even if the key-card-swipe data reveals the 

location of nonpublic, secured entrances, it is not excepted from disclosure as an 

infrastructure record. 

{¶ 27} At the time of the request, R.C. 149.433 exempted FitzGerald’s keycard-swipe data from disclosure because FitzGerald had received threats. The 

undisputed evidence now demonstrates that the data are neither security records nor 

infrastructure records. Cuyahoga County’s website reflects that as of July 2014, its 

administrative offices are now located in a new building. See

http://www.cuyahogacounty.us/en-US/HQ-Background.aspx; http://www.cuyahog 

acounty.us/en-US/New-County-Admin-HQ.aspx (accessed October 15, 2015). In 

addition, the old county administration building has been demolished See

http://www.cuyahogacounty.us/en-US/InterimLocations.aspx (accessed October 
January Term, 2015 

11 

15, 2015). Lastly, Fitzgerald is no longer the county executive. 

http://executive.cuyahogacounty.us/en-US/Budish-Takes-Oath-of-Office.aspx

(accessed October 15, 2015). 

{¶ 28} Thus, because FitzGerald is no longer the county executive, the keycard-swipe data are no longer security records, and because the old county 

administration building has been demolished, that data cannot disclose the 

configuration of its critical systems and are not infrastructure records. 

{¶ 29} Release of FitzGerald’s key-card-swipe data to the press also 

precludes the assertion that the data are excepted from disclosure pursuant to the 

public-records law. State ex rel. Cincinnati Enquirer, 98 Ohio St.3d 126, 2002-

Ohio-7041, 781 N.E.2d 163, ¶ 22 (“Voluntarily disclosing the requested record can 

waive any right to claim an exemption to disclosure”); State ex rel. Gannett Satellite 

Information Network, Inc. v. Petro, 80 Ohio St.3d 261, 265, 685 N.E.2d 1223 

(1997) (state auditor waived right to assert that records were exempt from 

disclosure partly because he made the records available to the public, represented 

to the relators that the records were public records, and orally described the records 

to a representative from the newspaper). 

{¶ 30} Accordingly, FitzGerald’s key-card-swipe data are public records, 

and the county has failed to demonstrate they are exempt from disclosure pursuant 

to R.C. 149.433. Thus, we grant the requested writ of mandamus and order the 

release of the records. 

Writ granted. 

O’CONNOR, C.J., and O’DONNELL, SADLER, and SINGER, JJ., concur. 

PFEIFER, LANZINGER, and O’NEILL, JJ., dissent. 

LISA L. SADLER, J., of the Tenth Appellate District, sitting for KENNEDY, J. 

ARLENE SINGER, J., of the Sixth Appellate District, sitting for FRENCH, J. 

_____________________ 
SUPREME COURT OF OHIO

12 

O’NEILL, J., dissenting.

{¶ 31} Respectfully, I dissent. Today the court revives a denied publicrecords request. I do not disagree with the court’s determination that the records at 

issue are subject today to release as public records. Rather, I disagree with its 

determination that the court should issue a writ of mandamus to compel respondents 

to release documents based on a request that was previously properly denied. 

{¶ 32} The majority opinion boils down the three-part standard for granting 

a writ of mandamus to the simple statement that “ ‘[m]andamus is the appropriate 

remedy to compel compliance with R.C. 149.43, Ohio’s Public Records Act.’ ” 

Majority opinion at ¶ 19, quoting State ex rel. Physicians Commt. for Responsible 

Medicine v. Ohio State Univ. Bd. of Trustees, 108 Ohio St.3d 288, 2006-Ohio-903, 

843 N.E.2d 174, ¶ 6; R.C. 149.43(C)(1). As a common practice, this court has 

made this simple observation in public-records cases. E.g., State ex rel. Beacon 

Journal Publishing Co. v. Bond, 98 Ohio St.3d 146, 2002-Ohio-7117, 781 N.E.2d 

180, ¶ 49. But in the normal course of reviewing a mandamus action, we 

traditionally conduct a three-part inquiry when considering whether to grant the 

writ: the relator must establish (1) a clear legal right to the requested relief, (2) a 

clear legal duty on the part of the respondent, and (3) the lack of an adequate remedy 

in the ordinary course of the law. E.g., State ex rel. Simpson v. State Teachers 

Retirement Bd., 143 Ohio St.3d 307, 2015-Ohio-149, 37 N.E.3d 1176, ¶ 17. We 

have held that the legislature, by enacting R.C. 149.43(C), made mandamus the 

only appropriate remedy for enforcing the public-records law. State ex rel. 

Steckman v. Jackson, 70 Ohio St.3d 420, 426-427, 639 N.E.2d 83 (1994). 

Accordingly, we no longer reject petitions seeking an order compelling disclosure 

of public records on the basis that there is an adequate remedy in the ordinary course 

of the law. Id. Until today, we have not done away with the other two prongs of 

the mandamus standard in public-records cases. 
January Term, 2015 

13 

{¶ 33} Through changed circumstances subsequent to respondents’ denial 

of relator’s request, relator has inarguably become entitled to the records at issue. 

The building in question no longer exists; the public official is no longer in office; 

and the security risk has gone away. In light of these new developments, what is 

respondents’ duty with regard to the request? I would say they have none. 

{¶ 34} When any person requests public records, a public office must 

promptly prepare any records for inspection that are responsive to the request. R.C. 

149.43(B)(1). The public office must also make copies of the requested records 

available at cost. Id. If some of the responsive records contain information that is 

exempt from inspection, the public office must still provide all of the nonexempt 

public records. Id. The public office must notify the requester of any redactions, 

and a redaction is treated as a denial of the public-records request. Id. If all or part 

of a request is denied, the public office shall provide an explanation for the denial 

with citations to legal authority. R.C. 149.43(B)(3). 

{¶ 35} It is plain that respondents complied with these clear legal duties on 

July 11 and 31, 2014. At that time, the county provided the key-card-swipe data 

that relator was entitled to and provided an explanation for the partial denial. The 

majority readily agrees that the records withheld from relator were not subject to 

disclosure at that time. Majority at ¶ 3. 

{¶ 36} Respondents did not fail to perform any act that they had a duty to 

perform. There is no provision in the Revised Code requiring public offices to keep 

track of whether the circumstances that justified the denial of a public-records 

request subsequently change. Likewise, public offices are not required to act on 

their own initiative to revive denied requests, even if they may be compelled to 

grant new requests for the same records based on new circumstances. 

{¶ 37} Our power to issue writs of mandamus is an extraordinary one that 

we should use only “to prevent a failure of justice.” State ex rel. Murphy v. Graves, 

91 Ohio St. 36, 38, 109 N.E. 590 (1914); State ex rel. Ingerson v. Berry, 14 Ohio 
SUPREME COURT OF OHIO

14 

St. 315, 323 (1863) (“Designed only as a remedy to prevent the failure of justice, 

[mandamus] must not be made the minister of injustice, and the law does not require 

the performance of things which are either impossible or useless” [emphasis sic]). 

Instead of showing reserve in the interest of doing only what justice demands, the 

majority stretches the law in this matter to vindicate relator’s litigious conduct. 

{¶ 38} A proper public-records request was made. It was properly denied. 

Any action taken by anyone subsequent to that final denial is irrelevant, and the 

majority’s focus on those acts obfuscates the question before us. Does the 

subsequent demolition of the building in question, the departure from office of the 

official involved, or the Plain Dealer’s receipt of the records requested change 

anything for our legal analysis? No. The request was properly denied at the time, 

and respondents do not have a duty to examine old requests to determine whether 

the conditions that permitted denial of the request have subsequently changed. 

{¶ 39} Therefore, I must dissent. 

PFEIFER and LANZINGER, JJ., concur in the foregoing opinion. 

_____________________ 

 Law Firm of Curt C. Hartman and Curt C. Hartman; Law Firm of Daniel P. 

Carter and Daniel P. Carter; and Finney Law Firm, L.L.C., and Christopher P. 

Finney, for relator. 

 Majeed G. Makhlouf, Cuyahoga County Law Director, and Robin M. 

Wilson, Assistant Law Director, for respondents. 

______________________