Port Clinton officials threatened

Letters to council members too vulgar for public consumption
Melissa Topey
Mar 10, 2013

Port Clinton police refuse to release copies of explicit letters sent to five city council members late last month.   

The letters were sent to council in regular mail, which made the documents a public record well before the police ever began investigating.  

Still, Port Clinton police Chief Rob Hickman said he has no plans to release the letters, at least not until he's done investigating. 

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Councilwoman Kathleen Mehl said she hasn't read the letters, but council president Linda Hartlaub did read one of them. 

At a Feb. 26 council meeting, councilman Mike Snyder arrived to find a letter on his desk. The handwriting on the envelope was shoddy, and at first he thought it was from a child. Inside he found a three-paragraph letter printed off a computer, and quickly realized the content wasn't so childlike.

“I read the first line and stopped,” councilman Snyder said. “It was sexually explicit in nature. To get this letter is disturbing.”

The letter demanded the resignation of a particular council member, whom Snyder and Hartlaub refused to identify. It also contained rants and derogatory remarks expressing displeasure at council and elected officials, Port Clinton police Detective Corbin Carpenter said. 

Snyder found four more letters waiting for longtime council members Mark Coppeler, Randy Lipstraw, Kathleen Mehl and Deb Benko. There are seven council members, plus council president Hartlaub.

Snyder collected the letters and informed Hartlaub and Mayor Vince Leone. In turn, they contacted Port Clinton police.

 

Comments

arnmcrmn

If you are that cowardly to write an anonymous letter to any council, how in the world do you expect them to take it seriously. Cowards these days.

transplant

I don't see anything in this article that says the letters were anonymous. Is that written somewhere else?

Unassumer

obviously this tactic backfired but the message is probably that someone who knows these council members rather well feels they should be replaced. there is often corruption in city and state governments. there are often hard feelings. I suppose it is a cowardly move but not surprising given the status quo.

Now The Rest of...

They could have been sent by carrier pigeon, once they are part of an active investigation they are not public records until the investigation is closed within a reasonable time frame of an arrest is made.

Matt Westerhold

Your statement is incorrect. Documents and evidence gathered during an investigation are not public record until a report is filed. A public record that causes the initiation of an investigation remains a public record.  

Licorice Schtick

Sue. Seriously. Because the penaties are so weak, the best way to encourage compliance is to file, don't you think?

Matt Westerhold

Thanks for the comment Licorice Schtick. Although this appears to be an obvious violation of the state law regarding public records — with no effort at even the appearance of compliance — it does not seem worthy of filing a lawsuit. The chief seems to be either ignorant of the law or arrogantly flagrant in violating it.

 

nobodyfromnowhere

Since your article does not mention that the letters were ever copied I am guessing they were not. And your article alludes that the others were collected without being opened so how would you suggest that they be released with out contaminating the trace evidence potentialy contained there in/on? And once the actual letters were turned over to the police they became physical evidence which is not a public record per the Ohio Attorney General's ruling. This is an open investigation and the Registers interest does not trump the interest of justice. Need I mention Sam Shepard? If copies were made prior to them being turned over to the police then you might expect a release of the copies, but very possibly not (see below), but since there is no indication that happened the police Chief is correct in withholding access to physical evidence in an open investigation.

Also I would say there is the substantial question that the letters are even a public record, as they do not seem to meet the "Effect of Actual Use". As right now they do not seem to meet the actual use test in that it appears they have not been used or relied upon by the City Council to carry out its duties and responsibilities. See the Sunshine Laws handbook page 6. The fact that the letters were sent to and recieved by various Council members does not in and of it's self make them public records.You fail to explain how they meet the third test of content. See the Sunshine Laws Handbook page 5 and also State ex al Margolius v. Cleveland, 62 Ohio St. 3d 45, 461 (1992).

Also who told in the police department the Register that the reason the letters were not being released was because they were "to vulgar for public consumption"?

nobodyfromnowhere

Hello Mr. Westerhold, I'm still waiting for an answer.

DGMutley

nobodyfromnowhere,

It doesn't matter whether you are right or wrong, it's nothing ventured, nothing gained. If a newspaper wants a scoop they have to go after it. If an agency erroneously releases information that's on them, but if you are a good newspaper you use what you can get anyway you can get it.

nobodyfromnowhere

Congrats you made the "You Said It" section.

Funny I always believed that being correct when reporting the news was EXTREMELY important! In this article the Register stated information (the entire second paragraph) the they knew or should have known was false. If the PD had released the information then it would be on them. In this instance they, very arguably, did not, and appear to have a solid legal footing for doing so. Because they did not knuckle under to the Register this resulted in what one poster described as throwing a "fit", and Mr.Westerhold having a post deleted by his own moderators. I again pose a question to Mr. Westerhold & Ms. Topey, even though my prior 2 remain unanswered, how do these letters pass the "Context" and "Effect of Actual Use" test that they must pass to even become a public record?

Apparently the Register isn't a good newspaper since they won't get the information they seek any way they can. All they have to do is file a lawsuit demanding a judge determine if the letters are Public Record and if so if they are exempted from disclosure or not. Mr. Westerhold has already indicated they are not planning to. Seems they don't want to put their money where their mouth is.

Centauri

"Also I would say there is the substantial question that the letters are even a public record, as they do not seem to meet the "Effect of Actual Use". As right now they do not seem to meet the actual use test in that it appears they have not been used or relied upon by the City Council to carry out its duties and responsibilities. See the Sunshine Laws handbook page 6. The fact that the letters were sent to and recieved by various Council members does not in and of it's self make them public records.You fail to explain how they meet the third test of content. See the Sunshine Laws Handbook page 5 and also State ex al Margolius v. Cleveland, 62 Ohio St. 3d 45, 461 (1992)."

I have no idea why you mentioned the Margolius v. Cleveland case as it had nothing to do with a police investigation. I will agree that the postal letter was not public information while in transit. It became a public record once the Port Clinton, Ohio public officials received it. You might want to read "Effect of Actual Use" paragraph again and think about what you read.

I am very curious now why the sender of the letters "demanded the resignation of a particular council member" whom Snyder and Hartlaub refused to identify. It also contained rants and derogatory remarks expressing displeasure at council and elected officials.

The letter had to do with the Port Clinton, Ohio city council and its duties to represent the people of Port Clinton. It sounds to me like the sender is very concerned about what is going on in Port Clinton's city government. Unless you can show me a court case that proves the "Effect of Actual Use" point of law, then I cannot agree with you. I welcome any link or PDF file that you want to provide to prove your point.

Please explain to me what "Effect of Actual Use" means to you or your opinion of that term.

I would urge the sender of letter to send an exact copy by postal mail to the Sandusky Register. Do not sign the letter. Perhaps there is something fishy going on in Port Clinton's city government to demand the resignation of a certain Port Clinton council member.

In Ohio, people have the right to free speech and to criticize their government officials. Unless the police can say that there was threat of physical harm to the council members, then there is no crime committed. Perhaps the police chief could cite the Ohio law of any crime committed for the police investigation.

I can't see the Sandusky Register filing a lawsuit over the letter. The sender of the letter would be farther ahead to send a copy or copies of the exact postal letters that were sent to the city council members.

Port Clinton, Ohio has a lot of dirt hiding under the rug. Port Clinton is a dying town. Honest city governments are very transparent and open with their public records. The residents of Port Clinton should demand to know which city council member the letter writer was referring to resign.

nobodyfromnowhere

From the Ohio Sunshine Laws Handbook page 6: "3. The Effect of "Actual Use"

"An item received by a public office is not a record simply because the public office COULD use the item to carry out its duties and responsibilities. However, if the public office ACTUALLY uses the item it may thereby document the office's activities and become a record."

There is no evidence that the letters were used by the City Council, therefore they fail the test and are not Public Records and are not subject to disclosure. Please show how they were actually used by the City Council?

Centauri

"There is no evidence that the letters were used by the City Council, therefore they fail the test and are not Public Records and are not subject to disclosure. Please show how they were actually used by the City Council?"

The Port Clinton city council did use the letters. They gave them to the Port Clinton Police Chief. Had the city council members threw the letters into the trash, then it would not be considered a public record. Many small governments receive junk mail that are not used and thrown into the trash. Since the Port Clinton city council "used" the letters by giving them to the police chief, they are considered to have been used by the council in their duties of office. The letters were correspondence to the city council and the city council "used" the letters by giving them to the police chief.

Correspondence from a resident of Port Clinton to the Port Clinton city council is public record. The letter in question demanded the resignation of a council member. The city council can decide whether to use the letter or simply toss it into the trash. If they file the letter for future use, then it is considered to be used. The city council "used" the letter by giving it to the police chief.

Now the Port Clinton Police Chief needs to explain his lack of not giving up the letters. I previously mentioned Ohio law and how it pertains to police investigations.

3. The Effect of “Actual Use”
An item received by a public office is not a record simply because the public office could use the item
to carry out its duties and responsibilities.51 However, if the public office actually uses the item, it may thereby document the office’s activities and become a record.52 For example, where a school board invited job applicants to send applications to a post office box, any applications received in that post office box did not become records of the office until the board retrieved and reviewed, or otherwiseused and relied on them.53 Personal, otherwise non-record correspondence that is actually used to document a decision to discipline a public employee qualifies as a “record.”54

(51)State ex rel. Beacon Journal Publ’g Co. v. Whitmore, 83 Ohio St.3d 61, 1998-Ohio-180.

(52)State ex rel. WBNS-TV, Inc. v. Dues, 101 Ohio St.3d 406, 2004-Ohio-1497

(53)State ex rel. Cincinnati Enquirer v. Ronan, 127 Ohio St.3d 236, 2010-Ohio-5680

(54)54 State ex rel. Bowman v. Jackson City School Dist., No. 10CA3, 2011-Ohio-2228

http://www.rcfp.org/ohio-open-go...
"All "public records" are available for public inspection and copying. A "public record" is any record that is "kept by any public office." Ohio Rev. Code § 149.43(A),(B). A "record" is "any document, device, or item . . . which serves to document the organization, functions, policies, decisions, procedures, operations, or other activities of the office." Ohio Rev. Code § 149.011(G).

The statute used to define "public record" as those records required by law to be kept by a public office, but the Ohio General Assembly amended the statute to delete that language. The statute now defines "public record" as simply "records kept by any public office," which broadens the scope of what kinds of records qualify as public records."

nobodyfromnowhere

No giving the letters to the Police Chief is not using them to carry out the duties of their office. Even if the council members read the letters that does not constitute use. I see you quoted the Ohio Sunshine Laws Handbook. Any reason why you did not completely quote the footnotes? Especially #52 which referenced State ex rel. Beacon Journal Publ'g Co. v Whit more and State ex rel. Sensel v. Leone both of which are on point to this argument. Especially Leone which is directly counter to your position. The only explanation needed is that they are not Public Records. If you feel so strongly put your money where your mouth is and file a suit for disclosure.

MrSandusky

Anyone else here love the fact that "Moderators" removed a comment by Matt Westerhold? Even the all knowing great one cannot follow the rules!

Now The Rest of...

He rephrased it and re posted it.

Now The Rest of...

Good luck hanging your hat on that since the investigation has now been initiated. Matt should you use the term "ignorant" when referring to someone, isn't that a violation of your own policy and would get the rest of us deleted?

Julie R.

What's the big deal about the word ignorant? Even the Bible talks about it. It refers to people that feign ignorance ~ and I assume that would also refer to people that feign ignorance of the law ~ as: "People who aren't just ignorant, they KNOW they're ignorant."

As an afterthought, I know a LOT of those kind of people. Most of them are attorneys and judges and other public officals!

Centauri

Many Ohio judges are not ignorant of Ohio laws or civil rights laws, they (judges) just ignore the laws and make up their own laws.

Where in the heck is attorney Buff?

Clark W

matt westerhold, once again it is YOU who is incorrect about public records. The statement made here by nobodyfromnowhere is spot-on.
I know you went to public records training at BGSU-Firelands. You obviously didn't learn much.

dontcare

Matt could you point out where it says that in the law. You might be confusing an Ohio Supreme Court decision that states that initial complaints are public records, not to be confused with evidence that substantiates an investigation. These are two totally different things.

If I am wrong please point it out and reference a specific law that supports your belief, I sincerely am interested. Thanks

MrSandusky

You will not hear anymore from him on this, he has been so publicly shamed on this that the moderator is removing his comments to save him the embarrassment.

cam

Matt, please make the reporters put more into the report. It seems we only get half the story,

Kimo

If Kasich can use taxpayer money for Jobs Ohio and not disclose any information on same, what makes this a crime? This is a petty issue compared to the Jobs Ohio Scam......
.

Mr. D

Some attention seeking nutjobs in PC vying for attention. No one listens their babbling so they try a new approach.

herbie_hancock

GIVE ME THE LETTERS NOW!!! "Fine if you don't give them to me RIGHT NOW then Ill just put your picture in the paper and tell everyone I didn’t get my way...WAAAAAAAAAHHHHHHHHHHHHH." There is obviously a reason they don’t want to give it to you right now, be patient don’t throw a fit. Do you really think using your paper like this makes our public officials and the areas police chiefs want to comply with your public information request? If my kid whines for something after I tell him to wait… then I don’t give it to him. Your burning bridges, what kind of juicy gossip are you going to report on when all the area police chiefs won’t help you?

nobodyfromnowhere

Unfortunately that is exactly what it sounds like the Register is doing. Especially when they print statements that they know or should know are untrue such as "The letters were sent to council in regular mail, which made the documents a public record well before the police ever began investigating." The Register mentions the Ohio Sunshine Laws so much telling public officials how they have to follow the Handbook that they should know the Handbook says that just because a letter is sent to a public official/body (council members) does not automatically make it a Public Record. They ignored the third test of Content and "Effect of Actual Use". Again see the Sunshine Laws Handbook page 5 and also State ex al Margolius v. Cleveland, 62 Ohio St. 3d 45, 461 (1992). Its right there in black and white. I'm sure that this obvious omission is just sloppy reporting, and not a deliberate attempt to cast another local police department in a bad light, right Mr. Westerhold and Ms. Topey?

Centauri

What does the Margolius v. Cleveland case have to do with law enforcement holding back on public records? Didn't that case have to so with access to computer tape records and not paper copies? If I were a crook in public office, I could easily copy public records from a computer and "edit" the public record to retract, change or add some information and then copy the "edited" information onto paper and give that paper to a newspaper reporter.

Page 5 of the Sunshine Laws Handbook has to do descriptions of public records.

What does the Margolius v. Cleveland case have to do with a police investigation?

nobodyfromnowhere

You are getting ahead of yourself Cent. Margolius has to do with what constitutes a public record. As you noted page 5 of the handbook has to do with the requirements to be a Public Record. Again it strongly appears the these letters significantly fail the "Context" and "Effect of Actual Use" tests which are explained on pages 5&6 of the handbook. Since they appear to fail these tests they are not by Ohio law considered Public Records and not subject to disclosure, or the exemptions there to, rendering the Confidential Law Enforcement Records Exemption questions moot.

Centauri

http://codes.ohio.gov/orc/149.43

(2) “Confidential law enforcement investigatory record” means any record that pertains to a law enforcement matter of a criminal, quasi-criminal, civil, or administrative nature, but only to the extent that the release of the record would create a high probability of disclosure of any of the following:

(a) The identity of a suspect who has not been charged with the offense to which the record pertains, or of an information source or witness to whom confidentiality has been reasonably promised;

(b) Information provided by an information source or witness to whom confidentiality has been reasonably promised, which information would reasonably tend to disclose the source’s or witness’s identity;
(c) Specific confidential investigatory techniques or procedures or specific investigatory work product;
(d) Information that would endanger the life or physical safety of law enforcement personnel, a crime victim, a witness, or a confidential information source.

What about that letter to an Erie County, Ohio judge? Somebody wrote a letter to him describing what he (judge) could do with a broom stick. I heard that the judge was really p!ssed.

Centauri

I doubt that the vulgar letter to the Port Clinton, Ohio city officials would:

(a) "identity of a suspect"

(b) "confidentiality has been reasonably promised"

(c) "Specific confidential investigatory techniques or procedures or specific investigatory work product"

(d) "Information that would endanger the life or physical safety of law enforcement personnel, a crime victim, a witness, or a confidential information source."

The Port Clinton Police Chief is wrong to hold back the public record.

Ignorant: "Lacking knowledge, information, or awareness about something in particular"

nobodyfromnowhere

First Centauri, it has to be a Public Record and thus far from what we know it fails to meet the Content and Effect of Actual use test. Again see the Sunshine Laws Handbook page 5 and also State ex al Margolius v. Cleveland, 62 Ohio St. 3d 45, 461 (1992). You can download the PDF at the Ohio Attorney General's website. Second, the actual letters are Physical Evidence and thus not subject to disclosure per OAG ruling, also in the Sunshine Laws Handbook. Third, I can reasonably see how the letters meet the tests of ORC 149.43 A2a&c there by protecting them from disclosure. Chief Hickman is well with in the legal boundaries on several fronts to not release the letters. Since Mr. Westerhold has already said that The Register isn't going to try to force disclosure through the legal process established to settle disputes on these issues (before the moderators remove the post), and given all the education of its people on public records that the Register crows about, I find it very hard to believe that Mr. Westerhold and Ms. Topey don't also know it.

Centauri

Please note what Ohio law states "but only to the extent that the release of the record would create a high probability of disclosure of any of the following" The key words are "high probability" to (a) (b) (c) (d)

That letter that was sent to the Erie County, Ohio judge was released to the newspapers, was it not?

Julie R.

What letter are you referring to? I seem to recall reading in the paper once about an anonymous letter wrote to Roger Binette. Is that the one? If so, you are correct. Why was that letter released to the public but not this one?

Centauri

You are correct. The letter to the judge described how to make a judgesicle.

Ottawa County, Ohio has a big carpet with a big mound of dirt swept under it.

Centauri
herbie_hancock

(2) "Confidential law enforcement investigatory record" means any record that pertains to a law enforcement matter of a criminal, quasi-criminal, civil, or administrative nature, but only to the extent that the release of the record would create a high probability of disclosure of any of the following:

(a) The identity of a suspect who has not been charged with the offense to which the record pertains.

So you just proved in your own post the possible reason why they haven't released it yet.....because it may reveal the who the suspect is and they haven't been charged yet. So by law which you just posted, they don't have to release it yet.

Centauri

So what crime was committed? Did the letter threaten to do bodily harm to the Port Clinton, Ohio officials? The person who wrote the letter could send a copy of the original by postal mail to the Sandusky Register and remain anonymous.

Cityslicker

Once a media loses respect from the government, and public, it becomes much harder to get info that would normally be told upon asking. The SR starting losing that respect big time around 2006-2007. And from what I understand, that friction turned to fire recently.

Julie R.

Saying the government loses respect for the media is a joke. I would have to say it's the other way around.

Centauri

A very good book to read about Ohio's public records.

Access with Attitude: An Advocate's Guide to Freedom of Information in Ohio by David Marburger and Karl Idsvoog

http://www.amazon.com/Access-Att...
"For those who find themselves in a battle for public records, Access with Attitude: An Advocate’s Guide to Freedom of Information in Ohio is an indispensable weapon. First Amendment lawyer David Marburger and investigative journalist Karl Idsvoog have written a simply worded, practical guide on how to take full advantage of Ohio’s so-called Sunshine Laws. Journalists, law firms, labor unions, private investigators, genealogists, realty companies, banks, insurers—anyone who regularly needs access to publicly held information—will find this comprehensive and contentious guide to be invaluable. Marburger, who drafted many of the provisions that Ohio adopted in its open records law, and coauthor
Idsvoog have been fighting for broader access to public records their entire careers. They offer field-tested tips on how to avoid “no,” and advise readers on legal strategies if their requests for information go unmet. Step by step, they show how to avoid delays and make the law work. Whether you’re a citizen, a nonprofit organization, journalist, or attorney going after public records, Access with Attitude is an essential resource."

Centauri

I want to add that "Access With Attitide" should be required reading before graduation from Ohio's high schools. The powers that be don't want you to read this book.

Matt Westerhold

Thanks Centauri for the excellent plug for an excellent book designed to empower the public. 

"Access With Attitude" was written by attorney Dave Marburger and Kent State University journalism instructor, broadcaster and newsman Karl Idsvoog.

Copies of this excellent book can be obtained through the Register. Call 419-609-5866.

nobodyfromnowhere

Hey Matt you are back! Any answers to my questions I asked above?