How Ohio’s public records law turned into a mess

DennisHetzel

DENNIS HETZEL

In 1963, the Ohio General Assembly fashioned the state’s first open records law. It took a broad approach to defining public records with a strong presumption that almost all records kept by government would be open to citizens.

The law was exactly two paragraphs long. It contained only a few exceptions.

How times change. Ohio attorney Breanne Parcels noted in a 2012 article called “Bring Back the Bite” in the University of Dayton Law Review that today’s statute “has ballooned to ten standard 8.5 by 11 inch pages.”  Today, it’s even longer.  With the recent addition of new secrecy to the lethal injection process, we now have 29 enumerated exceptions plus 100 or more peppered throughout the Ohio statutes.

The definition of what is a “government record” also has gotten narrower since 1963, and something can’t be an open record if it isn’t a public record. The same problem applies to our open meetings laws, as the definition of “open to the public” keeps getting tighter. 

In other words, a vast amount of government activity in Ohio is invisible to citizens, and the trend shows no sign of changing beyond some refreshing exceptions.

How did this happen? I think that’s a good question to ponder during Sunshine Week, an annual, national effort to promote open government.

The answer is pretty obvious: Despite the stirring words about the “presumption of openness” that remain in our statutes, our officials frequently give greater weight to reasons to keep matters secret. 

For example, in recent years the Ohio Supreme Court has made it nearly impossible to do the following:

• Collect attorney fees in a public records case, even if you’re right and the government broke the law.

• Challenge the government’s claim that it won’t give you records because your request is “overly broad.”

• Go to a government meeting for “information gathering” or “fact finding” unless the body decides it’s OK for you to be there.

• See criminal case files of closed cases unless the defendant is deceased — which doesn’t help someone much if they have been wrongfully convicted.

• Get spending detail from quasi-public agencies or privatized services that handle vast amounts of public money.

To be fair, in some cases the courts have dealt with language that could be improved. That is where legislative will comes into play. The digital age also creates both problems and opportunities that couldn’t be anticipated in 1963.

Just last week, Kent State University provided an example of how officials exploit these trends to hide information that common sense says should be public.

The Akron Beacon-Journal reported that KSU is paying marketing consultants $101,750 for marketing and promotional services. According to the newspaper, Kent essentially ceded its responsibility for open records to a Philadelphia consulting firm by agreeing in a contract that the school would notify the company of any records request, and that the firm would be able to redact any “proprietary” information under a trade secrets exemption.

Irony alert: One of the blacked-out items was the amount of time the company wanted to redact items. Other so-called “trade secrets” include travel costs.

Kent State’s appropriate answer should have been this during the negotiation: “We take seriously our responsibilities under the law as a public university, so we will be seeking other bidders who are more concerned about public transparency.”

Well, let’s close on a positive note.

For example, State Treasurer Josh Mandel has unveiled a website, OhioCheckbook.com, which might be the best effort in America to help citizens track state government spending at a detailed level.

State Auditor Dave Yost has announced a program to help citizens dealing with denials of records requests. In many cases, his office will issue a ruling without you having to hire a lawyer and go to court.  This is a major development that levels the playing field for citizens and builds on a free mediation program for local disputes offered by Attorney General Mike DeWine. You can learn more at Yost’s website, OhioAuditor.gov

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Those examples are good news, but they should be more than refreshing exceptions. As fate would have it, legislators have a great opportunity right now by injecting real transparency into how Ohio’s charter schools are spending nearly $1 billion in public money. Please consider telling them that.

Dennis Hetzel is the executive director of the Ohio Newspaper Association and president of the Ohio Coalition for Open Government in Columbus.