By Dennis Hetzel
July 1, 2014
There’s good news for Ohio citizens in the results of a statewide, county-by-county public records audit that was conducted by more than 60 Ohio media outlets in April under the auspices of the Ohio Coalition for Open Government.
But you shouldn’t get too excited. Problems with open records in Ohio are deeper and more complicated than ever. Let me explain why.
Why were this year’s results so much better? I suspect the main reason is greater awareness by government officials – and it also suggests that, stereotypes to the contrary, local newspapers continue to keep local officials on their toes. The training of local officials on the importance and requirements of Ohio’s records laws is far broader and more consistent than it was in 2004, the last time such an audit was conducted.
However, keep the results in perspective. This is all the audit showed: When you request a record from local government, and there’s no doubt it’s a public record, the chances of obtaining the record in the correct manner are quite good.
Emphasize that phrase “no doubt.” Attorneys who are experts on Ohio laws checked our requests in advance. Records such as meeting minutes, salary information and expense reports, are unquestionably public records.
The problem is this: A string of court decisions and legislative changes over the past 10 years have closed more records than ever and shifted the burden of proof strongly against citizens when there is any ambiguity.
In other words, when a government official wants to say “no,” unless it is 99 percent clear that the record is open, it is getting harder and harder to win. Even if you do, the Ohio Supreme Court has taken what legislators made difficult and now made it nearly impossible to collect attorney fees. This means only the wealthiest can afford to pursue these cases, giving government a tremendous tactical advantage. Unlike most states, there is no way to fight a state agency and the majority of local governmental denials in Ohio without hiring a lawyer and going to the time and expense of litigation.
Consider the 2012 case, Zidonis v. Columbus State, a wrongful discharge action. The Supreme Court gave governmental agencies new latitude to claim records requests are “overly broad.” Today the standard appears to be that “overly broad” is whatever government says it is.
While we were told that the Zidonis case involved narrow facts and wouldn’t apply to many situations, it is popping up in cases as arguments in favor of keeping records secret. That was the same argument made in another noteworthy case in which the Cincinnati school board did an end-run around the open records law by using a post office box and a search firm to hide the names of school superintendent applicants. And, guess what? Lawyers for Kent State University cited the Cincinnati case to keep names of candidates secret in KSU’s recent presidential search.
Meanwhile, exceptions are ever-growing. Ten years ago, there were far fewer in the law. They’ve now run out of single letters to attach exceptions to Ohio Revised Code 149.43 – the open records law. We’re at exception “bb” now. Hundreds of other exceptions are peppered in the statutes. One of the most abused exceptions is the “trade secrets” exemption. Meanwhile, legislators and courts have made it harder to get information about tax-dependent organizations such as JobsOhio, charter schools and privatized prisons.
Then there is Ohio’s actual definition of public records. Before a court will even consider if something is open, it must fit the definition of an actual government record. It can’t be an open record if it isn’t a public record. We need a broader definition that the courts will support.
Finally, consider the sheer volume of content that government is creating, just like the rest of us. It takes time and expense to review hundreds of documents. I agree with government groups that this is a genuine issue. We’re not unsympathetic, but maybe if we had fewer exceptions and ambiguities, those searches would go a lot faster.
So, let’s be grateful for the progress that the audit showed but keep our focus on fixing the big problems that remain so Ohio citizens have the access to information they deserve.