As with most areas of government law, the law governing public records in Ohio has slowly evolved over time. However, this area could be on the brink of a far more rapid evolution as the result of activities in both the State House and the courthouse. The Ohio General Assembly and the Ohio Supreme Court are each considering issues that could significantly change the landscape of Ohio’s public records laws. In addition, several recently decided opinions will also impact many public agencies as they deal with public records requests.

In the State House, the Ohio General Assembly is considering a bill that will require public agencies to produce public records within 10 days or face court action and significant penalties for public records laws violations. The bill will also require mandatory public records training of all elected officials and written policies for every public office.

In the courthouse, the Ohio Supreme Court is currently considering several cases that are likely to impact the way that municipalities must respond to public records requests. In addition, two very recent public records cases - one from the Ohio Supreme Court and one from the United States Court of Appeals for the Sixth Circuit - should be of interest to all political subdivisions.

State House Developments

Most public officials will recall reading about the “open records audit” sponsored by the Ohio Coalition for Open Government last year. According to media reports, over 90 journalists participated in the April 21, 2004 test of public records compliance by seeking various types of public documents from government agencies across the state. The journalists asked for board minutes, expense reports, police incident reports, salary information, and telephone bills. The group reported obtaining immediate access to the records in just over half of the cases. Others received their requested records in the days following the audit. However, the group reported being completely denied the records in 30% of the requests.

As a result, Representative Scott Oelslager (R-North Canton) introduced a bill in the Ohio General Assembly that would require public offices to respond to records requests promptly, add new training and policy requirements and create significant penalties for violations of public records laws. If passed as currently drafted, House Bill 9 would expand the definition of “public record” to include any record that comes under the jurisdiction of the public office that “documents the depletion, expenditure, or depreciation of the resources of the public office, even if unauthorized by that office.” House Bill 9 would also make the following changes to public records laws.

Policies and Training

House Bill 9 would require that:

• The Attorney General develops, provides, and certifies public records training programs.

• All state and local elected public officials attend a training program every two years.

• Public offices adopt a written public records policy and make a copy of their records retention schedule available to the public.

• Every public office employee be provided with a copy of the public records policy and acknowledge receipt of that policy.

• Public records be organized and maintained in such a manner as to facilitate inspection of all public records.

Public Records Requests

With respect to handling public records requests, House Bill 9 would:

• Require a public office to notify anyone seeking to inspect or copy a record about any redactions made to the document, unless those redactions are plainly visible, and specifies that a redaction is a denial of the request..

• Require a public office that denies a public records request to “provide the requestor with an explanation, including legal authority, setting forth why the request was denied.” If the initial request was in writing, the explanation must also be in writing.

• Require a public office to provide the requester an opportunity to revise an ambiguous request and, if a request for public records is ultimately denied, would require a public office to provide an explanation for the denial.

• Prohibit a public office from requiring disclosure of the requester's identity or the intended use of the requested record, unless state or federal law specifically requires such information and specifies that improperly requiring disclosure constitutes a denial of the request.

• Allow a public office to ask that a request be made in writing, to ask for the requester's identity, or to ask about the use of the records only if: (1) the public office discloses to the requester that compliance is not mandatory; and (2) only when a written request or the requested information would assist the public office in identifying and providing the records requested.

Penalties for Violations

House Bill 9 would:

• Allow a requestor who makes a written request and who has not received the records within 10 days to file an action in mandamus against the public office.

• Establish statutory damages of $250 per day for failure to comply with the law, capped at $5,000.

• Permit a court to award an additional punitive civil forfeiture of up to $1,000 per day if the court concludes that the violation was egregious.

• Require a court to award all court costs and attorney fees unless the public office had a “substantial likelihood of prevailing on the merits of its denial.”

Of course, some of the bill’s requirements have already been adopted by many public offices. However, if passed as currently drafted, local political subdivisions will need to disseminate those policies to all employees and make certain that all elected officials and records custodians are trained to comply with the new legal provisions. Public records requests will need to be answered within 10 days and, if a written request is denied, the agency must provide a written explanation of the denial including the legal basis for the denial. And, if passed in its current form, local political subdivisions will be subject to considerable penalties for violations of the public records laws.

At the time of this writing, House Bill 9 is pending in the Civil and Commercial Law Committee and has been the subject of several committee hearings. Copies of the bill are available online.

Courthouse Developments

There has also been some significant activity in the courthouse, with several major cases pending and a few others recently decided. All have the potential to impact the way political subdivisions respond to public records requests.

Pending Cases

Civil Forfeiture. A federal jury recently awarded $860,000 in punitive damages against the City of Akron for destroying public records in a federal employment case. Two employees sued the city for overtime pay and, in the course of discovery, learned that another city employee had destroyed certain files related to their overtime and compensatory time. The jury awarded the two employees $1,908 in overtime plus $1,000 “per record” destroyed in punitive damages pursuant to the Ohio Revised Code. The district court counted each individual form that was destroyed and assessed $860,000 in punitive damages. The City appealed.

The Sixth Circuit asked the Ohio Supreme Court to define what constituted “one record” for purposes of the forfeiture provision under the Ohio Revised Code. The Ohio Municipal League and others filed amici briefs urging the Court to find that a record is a compilation of data, regardless of the data’s form or format. In other words, the City argued that its compensatory time record was properly counted as a single “record,” rather than the series of individual records used to compile the record that was destroyed. The case is awaiting decision by the Ohio Supreme Court on the issue of what constitutes a “record,” then will be decided on appeal before the Sixth Circuit.1

Home Addresses. In response to a public records request for its payroll database and other similar information, the state provided several large electronic files that contained the names, work locations, salary information and other employment-related information to the media. The state changed the home addresses of its employees, however, arguing that they were not a public record. Eventually, the state turned over most of the addresses, but still refused to provide the home addresses of peace officers, firefighters, paramedics and individuals who, the state believed, faced a substantial threat of harm from the release of the records The Columbus Dispatch filed an action asking the Court to order the Ohio Department of Administrative Services and other state agencies to release the home addresses of all state employees.

The Columbus Dispatch argued that all of the home addresses were kept by the agencies and constituted public records under the law and should be released. The state, along with several amici, argued that certain employees, such as peace officers, prison guards, mental health employees and those with domestic violence situations or protective orders, have a constitutional right to privacy that could be violated by the release of their home addresses. The Dispatch argued that the state failed to sufficiently prove that its employees triggered a constitutional protection. The state countered that a public employer could not be required to conduct a detailed investigation of its employees’ privacy rights. The case is currently pending decision in the Ohio Supreme Court.2

Medical Information. The Ohio Supreme Court may decide another interesting public records case this year. The First Appellate District Court of Appeals recently ruled that portions of lead-investigation reports completed by a city department of health were not subject to disclosure. The City of Cincinnati argued that HIPPA and the public records law required the redaction of the personal medical information, even though the information did not pertain to medical diagnosis nor was it generated and maintained in the process of medical treatment. The Appellate Court agreed with the City, and ruled that the blood test results for children living at particular addresses were not public records. An appeal is pending in the Ohio Supreme Court.3

Decided Cases

Federal Privacy Act. The United States Court of Appeals for the Sixth Circuit recently dismissed a civil suit against the City of Detroit brought under the federal Privacy Act of 1974. A taxpayer sued the City after he received a tax mailing that displayed his social security number on mailing labels. The plaintiff alleged that the City violated the section of the Act which requires local governmental agencies to inform individuals whether or not disclosure of a social security number is mandatory and what uses will be made of the information. The District Court ruled in favor of the taxpayer, in part, and the City agreed to include disclosure notices in future requests for social security numbers.

The taxpayer appealed that portion of the decision which denied him monetary damages. The Sixth Circuit found that the case should have been dismissed in its entirety finding that, notwithstanding the reference to state and local governments in the Act, the definition of “agency” set forth in the Act applies solely to federal agencies. As such, the City could not be required to include disclosure notices or be subject to monetary damages under the Privacy Act.4

911 Tapes. On February 24, 2005, a unanimous Ohio Supreme Court ruled that a police department is required to produce the actual tape of a 911 call to the media. The prosecutor permitted the media to listen to the tape and offered to provide a transcript. He refused, however, to provide an audio copy of the tape or allow the media to record it.

The Columbus Dispatch sued, arguing that it was entitled to receive a copy of the 911 call in the medium in which it was kept - an audio tape. The prosecutor argued that the duty to produce records was met by allowing the media to listen to the tape and offering to provide a transcript. The Supreme Court ordered the prosecutor to turn over an audio taped copy of the 911 call and awarded attorney fees to the Dispatch, based on the Ohio Revised Code.5

Conclusion

Activity in both the courts and the legislature bear watching over the coming months. Public offices are always wise to make certain that records custodians are knowledgeable about their duties and can promptly and accurately respond to a request for public records. It appears that those duties are about to change as new laws are being considered in the General Assembly and existing laws are being interpreted in the courts.

Footnotes

1. Kish v. Akron, United States District Court, Northern District of Ohio, Case No. 5:00CV 2047; Kish v. Akron, Ohio Supreme Court Case No. 2004-0738.

2. State of Ohio ex rel. Columbus Dispatch v. Department of Administrative Services et al. Ohio Supreme Court Case No. 04-0394.

3. State ex rel. Cincinnati Enquirer v. Adcock, Hamilton App. No. C-040064, 2004-Ohio-7130.

4. Schmitt v. City of Detroit, 395 F.3d 327 (6th Cir. 2005).

5. State ex rel. Dispatch Printing Co. v. Morrow Cty. Prosecutor's Office, 105 Ohio St.3d 172, 2005-Ohio-685, 2005 WL 433700 (2005).

Reprinted from Finley’s Ohio Municipal Service, with the permission of the publisher and copyright owner, West Group.