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City asks judge to unmask two 'John Doe' Democrats suing Cincinnati over 'Gang of Five' texts

Posted: 10:17 AM, Jul 01, 2019
Updated: 2019-07-01 21:57:39-04
City Council 'Gang of Five' subpoenaed

CINCINNATI — The city of Cincinnati is asking a federal judge to unmask the identities of two anonymous Hamilton County Democratic activists who sued the city last week saying their private texts to City Council's ‘Gang of Five’ were wrongly released to the public.

John Doe 1 and John Doe 2 accuse the city of violating their constitutional rights and invading their privacy by releasing text messages they sent to the five city council members for 10 months during 2018. They say the city illegally exposed intimate information about their lives -- political associations, friendships, and private activities -- when they released text messages that eventually were given to the local media.

They are asking U.S. District Court Judge Michael Barrett for a temporary restraining order to ban the city and attorney Brian Shrive from releasing any more text messages until the case is decided. A court hearing is set for 3 p.m. Tuesday.

In the meantime, the city and Shrive filed a motion asking Barrett to order that the identities of the John Does be revealed.

“The public interest in this case will be high … the public has been and will be interested in knowing the parties involved in this lawsuit and following the legal issues involved,” defense attorneys wrote in their motion. “It is the public that has an interest in knowing the identities of the parties.”

Both attorneys – Peter Stackpole for the city, and Curt Hartman for Shrive – also question whether the John Does, “are in fact private citizens, and not public figures?”

Speculation has swirled at City Hall since the lawsuit was filed on June 24 about the true identities of the John Does.

While political insiders all have theories about the identities of the "John Does," it will be up to Barrett to decide if they stay anonymous.

They are also seeking class-action status, which could open the suit up to hundreds of others – friends, babysitters, doctors, neighbors, coaches, lawyers, family members – who may have sent text messages to the five council members last year: Tamaya Dennard, Greg Landsman, Chris Seelbach, PG Sittenfeld and Wendell Young.

“These texts, emails, and images are not public records. They are not evidence of any crime, nor are they suspected or alleged to be … they are, flatly, not the government’s business,” Jennifer Kinsley, attorney for the John Does wrote in motion asking for a restraining order.

“And yet Mr. Shrive and the city appear to be contorting Ohio public records law into a mechanism for spying into the private lives of governmental officials, their families, friends, children, allies, and political associates,” Kinsley wrote.

This could set the stage for a precedent-setting legal showdown over exactly which text messages sent to and from government leaders are public records.

"Somewhere out there, there is a line between government transparency and the right for government officials and their private associates to enjoy their own private existences, which includes gossip, scandal, love, loss, sadness, and all other intrigues normally hidden behind doors and walls,” said constitutional lawyer Matthew Miller-Novak. “I am very interested to see where Judge Barrett draws that line."

On April 9, 2018, Shrive sued the city and five council members for violating the Ohio Open Meetings Act by conducting city business via a group text message chain about the fate of then City Manager Harry Black. He represented conservative watchdog Mark Miller in his legal quest to publicize the private exchanges.

City lawyers told the five council members to provide their cell phones to Binary Intelligence, which created full digital copies of all of the content on the phones for the period from Jan. 1, 2018 to Oct. 23, 2018, according to the lawsuit.

The city released 626 pages of text messages between the five council members on March 7, which revealed gossip, name-calling, rumors of extramarital affairs, high-school level backstabbing and the secret side to how City Hall business really gets done.

City lawyers released the text messages after Hamilton County Judge Robert Ruehlman scolded the council members for breaking the law, and approved a settlement that cost taxpayers $177,000.

Afterward Shrive issued a new public records request seeking more content from the council members’ phones, according to the lawsuit.

“John Doe 1 and John Doe 2 both communicated with council members during that time period about a range of topics having nothing to do with official city business," according to the lawsuit. "These topics included purely social and friendly matters like parties, sporting events, and neighborhood gatherings; matters of campaign strategy and political organizing."

But city attorneys question whether these texts actually do concern government business.

“The plaintiffs do not allege that their communications never concerned city business,” defense attorneys wrote in their motion to unmask the John Does.

WCPO obtained text messages between former Cincinnati Mayor Dwight Tillery and the Gang of Five council members in June through a public records request made to the city.

In those messages, Tillery threatens civil unrest if Harry Black were forced out, belittles Mayor John Cranley, and demands funding for the nonprofit he founded, Center for Closing the Health Gap.

Since 2010 the nonprofit has received more than $4 million in city funding, despite separate investigations by The Enquirer and WCPO which revealed problems with the agency's spending.