In Ohio, a ''maintenance engineer" is a journalist; an online News Mgr. isn't
Ohioans For Concealed Carry’s investigation of the Ohio State Highway Patrol/ Department of Public Safety's administration of issuing press credentials has turned up startling information which raises new questions about the safety and security at the Ohio Statehouse and at crime and accident scenes, or any other critical incidents.
In response to an article published in the Cleveland Plain Dealer a few weeks ago, OFCC submitted public records requests to the Ohio Department of Public Safety/ Ohio State Highway Patrol (ODPS/OSHP) to obtain any and all information on who has applied for and been issued media credentials (officially called Ohio Public Information Officer (OPIO) cards) and on the procedures for how the applications are processed.
The initial concern was, of course, that the office that handles the applications for these cards had obviously tipped off PD reporter Julie Carr-Smyth that a member of OFCC had applied for media credentials. This is clearly inappropriate behavior on the part of the ODPS/OSHP. While the records release did not explicitly implicate any one person as having contacted the Plain Dealer, the records release has instead prompted a larger question of who should be considered a "journalist" in today's Internet-driven society, as well as prompting concerns over the procedures for issuance of these credentials.
When OhioCCW.org News Manager Chad Baus’ press credential application was denied, the reasons given by the person who handles these applications, Michele LC. DeGraffinreed, Administrative Assistant II at the ODPS, were that the policies for issuing OPIO cards were as follows:
- "The OPIO media credential card is issued to journalists who work for media organizations recognized by the Audit Bureau of Circulations and/or the Ohio Media Directory (as established by the policy of the participating organizations in OPIO)."
- "We don't, by policy for security reasons, issue them to freelance journalists or internet only organizations."
Contrary to DeGraffinreed's claims that card applicants' employer must be listed by the Audit Bureau of Circulations and/or the Ohio Media Directory, OFCC has discovered that cards have been issued to:
Contrary to DeGraffinreed's claims that "free-lance journalists and Internet-only" organizations are not eligible, OFCC has discovered that cards have been issued to at least one freelance writer for several southern Ohio newspapers, and whose identity OFCC will protect out of concern for the possibility of retribution.
It is also important to keep in mind the reason why DeGraffinreed claims the cards are issued in the first place:
- "We provide the media card so that law enforcement agencies and personnel can, at critical incidents, more quickly identify journalists working for large media organizations."
Contrary to DeGraffinreed's claims that the cards are necessary to help law enforcement identify journalists at critical incidents, OFCC has discovered that cards have been issued to:
OPIO cards have also been issued to the editors of several weekly or monthly "freebie" newsletters, and to at least one small book publisher.
So how exactly does the ODPS/OSHP define "journalist", anyways? Should the definition of a "journalist" who needs immediate recognition at a critical incident truly be anyone at all who works for a media company, no matter how small, and no matter in what capacity?
Perhaps of a more immediate concern than the arbitrary and capricious way in which these credentials are being issued, and the First Amendment question that results when an Internet news entity is denied, is the revelation that these cards are accepted by the OSHP for after-hours access at such sensitive areas as the Ohio Statehouse.
Among the applications procured in our open records request was an application by Jason Mauk, who currently is employed as a spokesperson for the Ohio Republican Party. In 2001, Mauk was issued an OPIO card while working as a political correspondent for the Ohio News Network.
In an email interview with OFCC's Chad Baus, Mauk confirmed yesterday that he did have the card, and he "primarily used to access the Statehouse after hours". Although he admits he doesn't recall being asked to do so by either his employer or the ODPS/OSHP, Mauk states that he surrendered, on his own volition, his OPIO card to the OSHP guard post in the statehouse upon his resignation from ONN. Nevertheless, the state still shows Mauk's OPIO card as valid, as it does 99.997% of all the OPIO cards ever issued.
Is the OSHP/ODPS the least bit concerned that people who have left these jobs likely still possess these cards and may in fact be using them to gain access to places where they are recognized? Does the OSHP/ODPS really believe that media credentials which will allow a person off-hour access to the Statehouse are necessary for payroll managers, sales persons, secretaries and interns?
If they do, they aren't saying.
As of this writing, one ODPS/OSHP official has refused a request to answer questions on this matter, and her boss won't even respond to our request for comment.
Upon the discovery that OPIO cards had been issued in a way that appears to contradict the ODPS/OSHP's own stated policies, OFCC emailed the person who issues the cards, (or denies, in Baus' case), to request comment for this story.
- ----- Original Message -----
Date: Mon, 25 Apr 2005
From: Chad D. Baus
To: Michele DeGraffinreed
Subject: Ohio OPIO card policy questions
Michele -
Please pass on to your co-workers our appreciation for the fast response to my April 13 public information request.
I've just begun to process all of the information, and have a few questions for a story we are preparing for OhioCCW.org.
I am writing to request comment from you or Capt. Born on the following:
1) Our initial review of the card applications reveals that, as employees of a business listed in the Ohio News Media Directory, webmasters or internet content managers, payroll administrators, maintenance engineers, librarians, secretaries, sales directors and even a college intern have been issued OPIO cards. Is it the position of the Department of Public Safety/ Ohio State Highway Patrol that persons in these and similar non-reporter, in-house positions are in need of a card to so that law enforcement agencies and personnel can, at critical incidents, more quickly identify journalists working for large media organizations?
2) Are the Akron Public Schools and/or Clermont Co. Commissioners Office in the Audit Bureau of Circulations and/or the Ohio Media Directory? If not, would you care to you comment on the issuance of OPIO cards to an employee from each of those entities?
3) OPIO cards have been issued to at least one freelance videographer and at least one freelance writer. Can you comment on this in light of the stated policy that you don't, by policy for security reasons, issue them to freelance journalists or internet only organizations?
4) Stephen A. Hill, former WCPO reporter, is currently serving a five year sentence for crimes related to having sex with teenage boys. Would you care to you comment on the current status of Hill's OPIO card?
5) In your last email to me, you mentioned that policies for issuance of these cards are governed by a "participating organizations in OPIO". Who are these organizations?
My deadline is tomorrow at 5:00 p.m. Email is fine for yours or Capt. Born's responses, but you may also call me at (419) XXX-XXXX. Thank you for your continued assistance.
Chad Baus
OFCC
DeGraffinreed's response follows:
- ----- Original Message -----
Date: Tues, 26 Apr 2005
From: Michele DeGraffinreed
To: Chad D. Baus
Subject: Ohio OPIO card policy questions
Mr. Baus:
Thank you for your recent e-mail to our office concerning the Ohio OPIO card applications and photos public records request. Unfortunately, I'm not a spokesperson for the Ohio Dept. of Public Safety. I have forwarded your e-mail to Capt. Born for response.
Please except my sincerest apologies for any inconvenience that this may have caused you.
Respectfully,
Michele LC. DeGraffinreed
Administrative Assistant II
Ohio Dept. of Public Safety
1970 West Board Street
Columbus, Ohio 43223
614-466-4775 work
614-637-3529 pager
614-752-8410 fax
[email protected]
After allowing almost the entire day for Capt. John Born to respond, the following reminder was sent to him:
- ----- Original Message -----
From: Chad D. Baus
To: John Born
Cc: Michele DeGraffinreed
Sent: Tuesday, April 26, 2005 3:45 PM
Subject: Re: Ohio OPIO card policy questions
Capt. Born -
As I explained yesterday, I am working on a 5:00 deadline for this story. I do believe your perspective on these issues is important for our readers.
I assume you're in today, or Michele would have told me otherwise. I would appreciate a response.
Chad Baus
A follow-up email was also sent to DeGraffinreed:
- ----- Original Message -----
Date: Mon, 25 Apr 2005
From: Chad D. Baus
To: Michele DeGraffinreed
Subject: Re: Ohio OPIO card policy questions
Michele -
Although not a spokesperson, you are the one who does this job - you are the one
who looked at my application and decided it didn't fit the requirements. I
would think it appropriate for you to explain why janitors, secretaries,
payroll administrators, etc. etc. etc. have been issued these credentials.
You are the one who told me OhioCCW.org needed to be in the Ohio Media Guide.
I would think it appropriate for you to explain why there are people employed
by other entities not in the Guide that have been issued cards.
You are the one who told me free-lance journalists are not eligible. I would
think it appropriate for you to explain why there are at least one free-lance
videographer and one free-lance writer that have been issued cards.
In your last email to me, you mentioned that policies for issuance of these
cards are governed by certain "participating organizations in OPIO". Can you
yourself not tell me who these organizations are?
Chad Baus
Ohioans For Concealed Carry
There has been no response. Is this the type of stonewalling Ohio taxpayers should expect out of state bureaucrats? Can this refusal to answer to questions about their performance be viewed as anything other than an abuse of power?
In DeGraffinreed's original denial of Baus' application, she observed that "we are under no legal obligation to provide the media card…" Indeed this is true. In fact, attorneys in OFCC's Office of General Counsel have observed that it is a basic precept of administrative agency law that an governmental agency must be authorized by statute for it to act. When there is no statutory authority, the action is ultra vires - beyond or exceeding the authority vested by the principal in the agent.
Many agencies (most infamously the IRS) get around this by giving as their authority the general enabling statute that authorizes their creation and basic functions. Many courts will go along with that as long as the action taken has at least some relationship to said basic functions as authorized by the enabling statute. But judging by the ODPS/OSHP's poor administration of the OPIO card program, they're going to be hard pressed to prove a case that their role as a law enforcement entity and protector of security is being served by this program.
The deeper one digs into, the arbitrary and capricious way in which these credentials are being issued, the more questions that are raised. These questions deserve answers.
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