06/25/2015

Tips for requesting public records in Ohio

By Courtney Stanley, ONA intern

The Ohio Public Records Act has made a long and complicated journey from the two-paragraph-long open records law written in 1963 to its current form, full of amended limitations and exceptions. Navigating the allowances and requirements of the OPRA can be a frustrating task even for an experienced reporter.

Two experts on the OPRA give their tips for getting the most out of your public records request.

Do your homework

Before writing out your request, research the documents you will request and the person or organization you will be working with, said Doug Oplinger, managing editor of the Akron Beacon Journal.

“I think [journalists] fail to know enough before they make a public records request,” Oplinger said.

Look into what does and does not constitute a public record, and be sure to have an idea of some of the following specifics: how the record is stored by the organization, who or what is involved, approximately when it was recorded and what the document is called.

Instead of fishing for information, which is likely to be a waste of time, you should do enough research to know what information your request will get you.

Similarly, know what information an organization does and doesn’t have. According to Oplinger, if your request is something that would force the person in charge of the public records to create a new record, they are not obligated to fulfill the request. Some organizations might arrange new documents for you while others will say they do not keep the record you requested.

If you’re up against a particularly unfriendly person or organization, think of who else might have the document, or ask for a similar document from one who has granted your public record request in the past. When you go back to the difficult one, you will know the specific document, and it will set a precedent that you are someone who knows what they are talking about.

Avoid being “overly broad”

“Courts have gotten picky about the substance of requests,” said Jack Greiner, an attorney at Graydon Head in Cincinnati who represents the Cincinnati Enquirer and other Gannett papers in Ohio. If a request is not specific enough or brings up too wide a range of information, it can be denied as “overly broad.” (ORC 149.43 B2)

Recently, Grenier said the courts are not as supportive of open records as they used to be, and they often overuse this exception.

“I don’t think that’s a good interpretation of the Public Records Act, but that’s what I see happening,” Greiner said.

On Thursday, June 18, the Ohio Supreme Court may have made it a little more difficult for records holders to use this excuse. In Carr v. London Correctional Institution, the Ohio Supreme Court ruled in favor of a requester who was denied three times by the prison. The Madison County Court of Appeals called the prisoner’s request — one document in a two-month window of time — “ambiguous, overbroad and unduly burdensome.”

“The ruling provides some guidance to public officials amid a growing trend of rejecting records requests as ‘overly broad’ in the wake of rulings in recent years,” wrote Randy Ludlow, a reporter at The Columbus Dispatch, in an article following the decision.

When in doubt, Greiner said to follow up a broad request with a series of more focused requests.

“If you try to guess, you might guess wrong,” he said, and that will result in a denial. But offering a few restrictions, like date ranges, will help your request.

Know the law—and take it with you

In addition to studying the OPRA before submitting a request, Greiner recommended taking a copy of the statute with relevant sections highlighted when you make your request. That way, if the public records holder tells you something that you know to be false, you can put the law in their face, Greiner said.

Don’t be afraid to ask for someone’s boss or a city law director if you are running into a wall with the person in charge of public records. And don’t be afraid to correct them if they’re wrong about the OPRA, said Greiner.

Some key points to remember from the Ohio Public Records Act:

• You may be charged a copying cost if you request physical documents. Currently, the charge is 15 cents per page. (ORC 149.43 B1)
• If some of the information on your document is confidential, the person responsible for the public record should make available what they can while redacting the rest. (ORC 149.43 B1)
• You are not required to disclose your identity or intended use with the public record. (ORC 149.43 B4)
• The organization or person in charge of public records may ask you to put the request in writing, ask about the intended use of the public record or ask for your identity. This is only after saying this information is not mandatory and demonstrating that the information will make it significantly easier to fulfill the request. (ORC 149.43 B5)
• There is no specified waiting period for public records in Ohio. The OPRA only specifies that records should be made available “promptly” or “within a reasonable period of time.” (ORC 149.43 B1)

Greiner also said journalists should keep in mind that the OPRA is not a freedom of information act. Public officials are not obligated to give information that is not written by hand or electronically recorded, Greiner said, so always phrase your requests to point to some type of record.

Submit it in writing

Although public records requests can be made in person, by written request or electronically, the OPRA specifies that a written request by hand delivery or certified mail is needed to request statutory damages, according to Greiner. (ORC 149.43 C1)

While this will not always be relevant immediately, it could help you in the long run. Greiner said it is a good idea to submit a written request to keep the possibility open. If you are in a hurry and want to email the request, you can follow it up with a certified letter of the same request.

Be transparent with the public

Have you been repeatedly denied requests by a person or organization? Tell the public about it, Oplinger said, and don’t worry about embarrassing the organization. Having the ability to tell the public about denials of public records requests is one of a journalist’s most effective tools, he said.

In April 2014, the Akron Beacon Journal exposed Kent State University’s denial of their request for information regarding a search committee looking for a new president. Kent State had signed a contract addendum with the company performing the search that gave the company control of the public records. Consequently, the Beacon Journal could not get records about the presidential search that would normally be available.

Hoping to avoid the time and expense of litigation, the newspaper wrote articles to draw public attention to what Kent State had done. By talking about the denial publicly, the Beacon Journal gained respect from the community and even employees of Kent State who were embarrassed about what the university did, Oplinger said.

The Beacon Journal brought public records — and how difficult it can be to obtain them — into the public eye, which kept the story going long after their requests had been denied.

“It’s important for us to not throw up our arms when we can’t get documents,” Oplinger said. Although you may not get what you want in the short term, you can create long-term change in the public and how they think about public records.

“We need to not be deterred.”

Appeal your denial

All citizens can easily appeal denials of records requests without having to hire a lawyer or go to court by filling out an online form on the websites of Ohio Attorney General Mike DeWine or State Auditor Dave Yost, according to Dennis Hetzel, executive director of the Ohio Newspaper Association.

Disputes with local government officials must begin with DeWine’s mediation program, and then can be referred to the auditor’s new program. Disputes with state agencies can start with Yost’s programs.