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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.]