Ohio Enacts Anti-terrorism Legislation.
By: Eric E. Skidmore
A Publication of Skidmore &
Associates, A Legal Professional Association
As a youngster, I remember my first vivid impressions
of "terror" when I witnessed media coverage of the successive
assassinations of Martin Luther King, Jr. and Robert F. Kennedy
in the spring of 1968. I was eight years old. There is nothing more
wretched than the age of innocence being shattered by the realities
of the day. I witnessed "terrorism" for the first time
while watching the events unfold at the Olympic village in Munich,
Germany during the games in 1972. Eleven Israeli athletes were senselessly
murdered by eight Palestinian gunmen. Interwoven into the fabric
of those times was the tumult of the civil rights movement, the
meandering Vietnam War, the Kent State shootings and the constitutional
threat of an American presidency with "blind ambition".
Throughout American history, Americans fought each
other in times of civil strife within our own territorial boundaries.
Americans fought foreign foes on foreign soil. Except for the Revolutionary
War and Pearl Harbor, there have been few instances wherein Americans
combated a foreign foe on American soil. A formidable foreign foe
now exists within our country, consisting of active and dormant
cells of the Al-Qaeda terrorist network. Changes occur in our laws
and governmental institutions, with the acknowledgment of real and
actual threats to civilized populations. Changes have come to the
state of Ohio in the form of new anti-terrorism legislation.
I. Ohio Responds To The Threat of Terrorism:
An Overview
Prior to September 11th, most states within the Union were unable
to identify terrorism as a threat to our communities, let alone
prepare for it. The Ohio Senate introduced Senate Bill ("S.B.")
184 on November 18, 2001 approximately two months after the terrorists'
acts of September 11th. S. B. 184 passed the Ohio House on February
20, 2002 and was signed by Governor Taft on May 15, 2002. S. B.
184 created the criminal offenses of terrorism, soliciting or providing
support for an act of terrorism and making a terrorist threat. It
also expands other offenses to increase the penalty for any obstruction
of justice involving terrorism and expands the offenses of contaminating
a substance for human consumption. Ohio amended the criminal law
in this manner to envelop terrorist activity so that perpetrators
can be charged and prosecuted.
S. B. 184 changes the way government will administer
itself with regard to terrorism. Certain security-related information
is excluded from the Ohio Public Records Law to prevent disclosure
of security sensitive matters to the general public. Amendments
to the Open Meetings Law allow governmental bodies to conduct executive
sessions outside the view of the public and press to consider security
matters associated with a terrorist attack. S. B. 184 tapers the
public's "right to know" so the government can operate
under a cloak of secrecy when there is a terrorist threat.
Finally, S. B. 184 revises the Emergency Management
Law regarding all hazardous emergency operations plans.
II. Criminal Perspective
A. Ohio Defines The New Offense of "Terrorism"
S. B. 184 amends Ohio Revised Code ("O.R.C.") Section
2909.24 to create the specific new offense of "terrorism".
The offense of terrorism prohibits a person from committing an
act with the purpose to:
1. Intimidate or coerce a civilian population;
2. Influence the policy of any government by intimidation or
coercion; or
3. Affect the conduct of any government by terrorism.
B. Ohio Sets Tough Penalties For One Convicted
of Terrorism
The new offense of terrorism expands the offense of "aggravated
murder" to encompass the prohibited conduct of a person who
purposely causes the death of another while committing or attempting
to commit the offense of terrorism. Included in the penalty stage
are aggravating circumstances and a person convicted of terrorism
in concert with aggravated murder could be sentenced to death
or life imprisonment. S.B. 184 is not a deterrent to terrorist
conduct; however, it updates Ohio's criminal justice law and
procedure. It provides a protocol to assist in the charging, prosecution
and adjudication of those who commit an act of terrorism.
III. Business Perspective
Terrorists exploit the open and public institutions of democratic
governing. S.B. 184 creates a new exception to the Public Records
Law (O.R.C. 149.333) to reduce public disclosure of sensitive matters
concerning security records, infrastructure records, security arrangements
and emergency response protocol. Government bodies and their subdivisions
should note these provisions. Construction professionals retained
by government should also be aware of these non-disclosure policies.
In order to demonstrate the application of O.R.C. 149.333, I provide
a fictitious construction project which requires substantial planning,
inter and intra governmental participation and the retention of
a number of consulting professionals. I then interject a terrorist
plot and apply the provisions of S.B. 184 from the public and private
business perspective of administering public records.
A. The Hypothetical Project
A municipal corporation exercises its appropriation power to condemn
acreage to build a general aviation airport. The public airport
is to direct some of the general aviation traffic from the regional
commercial airports. Millions of dollars are procured from the
federal and state governments to build runways, taxiways, terminals,
hangars, navigational equipment and an air traffic control tower.
The hosting municipal corporation hires engineers, architects
and contractors. A Master Plan and developmental plans are prepared
and provided to a multitude of public agencies. All the consultants
exchange the plans that detail the infrastructure. The project
is to be completed in six years.
B. Terrorists Descend
Two years into construction, agents from Al-Qaeda target the airport.
The small metropolitan community is appealing to the agents because
they believe their activity will go undetected. The terrorist
cell is to remain dormant for five years while becoming acclimated
to everyday life in the community. The plan is to inconspicuously
enter flight schools at the airport and obtain the aviation skills
to steal a corporate business jet from a public hangar and crash
it into a nuclear power plant in northwest Ohio. This would require
the plans and blueprints of the infrastructure and security systems
of many public buildings at the airport. The Al-Qaeda agents make
gradual public record requests upon public agencies to obtain
the needed plans. The agents also try to acquire staff positions
in the engineering and architectural firms retained to build the
airport structures. The entire population of northwest Ohio is
reliant upon the municipal corporation and consultants correctly
implementing the dictates of S. B. 184. What should happen?
C. New Exclusions From Public Records Law
S. B. 184 excludes "security records" and "infrastructure
records" from the Public Records Law. A security record is
defined as "[a]ny record ... directly used for protecting
or maintaining the security of a public office against [a terrorist]
attack, interference, or sabotage ... or prevent, mitigate or
respond to 'acts of terrorisms'". An infrastructure record
is any record that "discloses the configuration of a public
office's critical systems such as communication, computer, electrical,
mechanical, ventilation, water, and plumbing systems, security
codes or the infrastructure or structural configuration"
of a public building. Security and infrastructure records are
not subject to mandatory release or disclosure. A simple floor
plan disclosing only "spatial relationship of components"
of a public building is not excluded from the Public Records Law.
D. A Possible Scenario
The municipality should develop and implement procedures to coordinate
the internal and external distribution of security and infrastructure
records. A list should be maintained to track all individuals
and entities that are provided a copy of these sensitive records
for each project. When a public records request is submitted to
interdepartmental agencies, it should automatically be forwarded
to the municipal law department. The law department should establish
a protocol to administer the requests and deny disclosure of security
and infrastructure records. The public record request for sensitive
security and infrastructure records submitted by Al-Qaeda agents
would effectively be thwarted by an unassuming public agency by
the successful administration of the dictates of S. B. 184.
The engineers, architects and contractors with copies
of the records should be contractually required to safeguard and
secure the plans. In fact, the municipality should require such
security as a part of the bid package submitted by the consultants.
The protocol for safeguarding and limiting access to "security
records" and "infrastructure records" before, during
and after the project should be specifically defined in the consulting
contract. The municipality should also coordinate these policies
with the federal and state agencies monitoring the airport project.
Consulting firms should conduct extensive background checks on
their employees to avoid hiring of possible agents. The consultants
should update their document retention policy to require the confidential
destruction of these records when their retention period ultimately
expires. Any Al-Qaeda agents infiltrating the consulting firm
would be blocked from accessing the records. The Al-Qaeda network
would have to rely on more clandestine methods of obtaining the
security and infrastructure records. S. B. 184 only prevents the
government's own disclosure of these sensitive records through
channels that would be traditionally open to the public.
IV. Conclusion
Although there is little chance of a terrorist attack in Ohio, S.B.
184 will not deter terrorism. Let's be realistic, these people are
pathological killers. They will not be repelled by a rejected public
document request. However, S.B. 184 is an attempt by a civilized
government to address uncivilized conduct. It amends the criminal
law to adjudicate and punish this conduct. Other revisions are to
avoid public disclosure of sensitive records in a free and open
society. History repeats and is cyclic. There will be other terrorist
attacks. S.B. 184 is an initial step to combat this foreign foe
if and when it should ever appear upon the soils of Ohio.
[An edited version of this article is scheduled
for publication in the January/February 2003 issue of Ohio Lawyer.]
