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Keeping Public Records From the Public

By Pete Shuler · July 14th, 2004 · Statehouse
The theory behind laws guaranteeing public access to government-generated records is that the records belong to the public, not to the government. State and local officials serve only as custodians for those records and should provide them to the owners -- the public -- upon request, with very few restrictions and no hassle.

Ohio's Public Records Act defines public records as those "kept by any public office, including, but not limited to, state, county, city, village, township and school district units," as well as records pertaining to charter schools. The law then excludes several common-sense items from this general definition, such as medical records, adoption proceedings, police investigatory files, trial preparation files, certain information that could jeopardize public safety and a few other items.

After defining public records, the law stipulates the access that the public should have to this information.

"All public records shall be promptly prepared and made available for inspection to any person at all reasonable times during regular business hours," says Ohio's law.

Furthermore, public offices are required to maintain public records in such a manner that those records can be easily accessed for inspection. If a person requests a copy of a public record, a public office must provide that copy by U.S. mail within "a reasonable time after receiving the request." The citizen must pay the cost of copies, postage and mailing supplies.

Yet the simplicity of this law's structure doesn't eradicate complications and disagreements between government officials and those requesting public records. Other factors such as attorney-client privilege and, especially since Sept. 11, 2001, security and public safety concerns compete with the public's right to see its own records. Such conflicts often result in complicated and lengthy court cases to determine whether access to the records in question must be provided.

These infrequent conflicts notwithstanding, government employees should be able to properly and efficiently provide access to the records they maintain.

Unfortunately, it appears that they are either unable or unwilling to do so. In April the Ohio Coalition for Open Government (OCOG), an open records watchdog group, performed a statewide audit to determine compliance with the state's public records law. Representatives from 42 newspapers in the state, the Associated Press, two radio stations, Ohio University and the University of Dayton requested meeting minutes, salary information, police reports and school treasurers' phone bills from cities, school administration offices and police departments in each of Ohio's 88 counties. These items were requested because they are indisputably public records under Ohio law.

Of 491 record requests made, only 246 were fulfilled on the day of the request. An additional 13 were filled on the following day. Nearly one-half of the records requested, 47 percent, were not provided within the reasonable period of 24 hours.

Government employees cited a variety of reasons for denying access to the records. Some stated that they were too busy to fulfill the request, while others incorrectly claimed that the requested items were not public records. In numerous cases, departmental policies or individual employees demanded that requests must be made in writing, a requirement not permitted under Ohio law.

Public employees also frequently asked to see the requester's identification and inquired as to the need for the information, both of which are impermissible. In addition to encountering such resistance, many OCOG auditors endured rudeness and hostility from public officials.

Even when information was eventually provided, it was often done incorrectly. The Toledo Blade reported that a police chief blacked out certain information from an incident report -- a log listing all calls for a shift -- before releasing it. He then demanded payment of $2, far in excess of the cost of printing the log. Ohio law requires that copies of public records must be made available at cost, which is generally pennies per page.

Additionally, employees in city offices, school districts and police stations frequently directed the requester to the attorney representing the respective public agency, indicating the employees' ignorance of the law.

A person wrongly denied access to public records can force the release of those records through legal action, but no penalty, financial or otherwise, is assessed against the employee who denied access or the office for which they work. Thus, the law provides no incentive for state and local officials to provide training to employees. Nor is there an incentive for employees to expend time and energy filling these requests.

One public official told the OCOG auditor that he knew the records requested were open to public access, but he nonetheless denied access for no apparent reason.

Ohio Attorney General Jim Petro recently announced plans to partner with the Ohio Newspaper Association, the trade group that established the OCOG, to educate government officials on the Public Records Act. But Petro's dedication to open access is dubious, given his stance in a case currently before the Ohio Supreme Court.

Claiming that correspondence involving a state agency's in-house counsel is covered by attorney-client privilege, Petro asked the Supreme Court to seal the communications. Attorney-client privilege is not currently considered to extend to communications involving such staff lawyers. If Petro is successful, it might be possible for the government to exempt nearly all records from public access simply by sending a copy to in-house counsel, thus placing the records under the umbrella of attorney-client privilege.

Public records belong to the people of Ohio, not to legislators, officials, bureaucrats and clerks. Like a librarian, the government should maintain and protect the records and, with very few constraints, give them to any person who requests them.

It appears that disregard for Ohio's law guaranteeing this right is pervasive, running from local government clerks all the way up to the Ohio Attorney General.



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