08/03/2018

In Ohio, you can fight public records battles with one click and $25

(Note to ONMA Editors: The following column also can be published by any ONMA member as an op-ed column. If you need a print-quality photo of Dennis, contact Jason Sanford, jsanford@ohionews.com.)

By Dennis Hetzel

Ohio’s state and local governments likely hold hundreds of records that might be important to you or your family.

However, it’s not something you’ll ponder until you urgently need access to documents like birth records, police reports, property records, the minutes of your school board’s last meeting, or any of countless other records in the government’s possession.

Most government officials are honorable and try to fulfill requests, but that’s not always the case. Sometimes there are legitimate differences of opinion.  Sometimes, officials are obstinate and don’t want to supply a record for any number of reasons, including often spurious claims of attorney-client privilege or protecting trade secrets.

Until 2016, the playing field in Ohio tilted heavily in the government’s direction. It was easy for officials to say “no” – even when they should’ve said “yes.”  That’s because they knew that most citizens did not have the financial resources to file a lawsuit and go to court. That was the only available path in contrast to many other states that had developed easy, affordable ways to appeal a records denial.

Actually, the playing field tilted even more than you might think. If you tried to represent yourself to save money, you were at a huge disadvantage versus government attorneys, many of them quite experienced and crafty in the nuances of Ohio’s public records laws. If you sued a state agency, it was you vs. the attorney general’s office. 

On top of that, it remains extremely difficult under Ohio law, even when you’re right and you win, to get attorney fees reimbursed, so your battle was a crusade that required a fat checkbook.

In the old days, media outlets willingly took up a lot of battles. Today, with resources stretched thin, dollars are lacking for all but the most critical cases. Our Ohio Coalition for Open Government, of which I’m president, helps organizations and individuals in major cases, but OCOG’s total resources are less than $80,000. One or two protracted court battles would drain us to zero.

The Ohio News Media Association spent several years telling legislators that it was time to do something. Keith Faber, then president of the Ohio Senate, drew on his background as a mediator to suggest a unique-in-America process that just might be the best appeals process in the country.

Now, for $25 and the time to fill out an online form on the Ohio Court of Claims website, you can appeal a denial. Some cases get resolved with a phone call. Mediation comes next, which can be done remotely so you don’t have to make a trip to Columbus. If mediation fails, you’ll get a ruling that has legal authority. Both sides still have appeal rights.

The process – nearly two years old now – has worked beyond our expectations. I have a few favorite cases already.

The top of my hit parade is Shaffer v. Budish, a case in which Cuyahoga County tried to block a reporter’s access to body camera footage in a jail incident by arguing, in part, that the camera revealed confidential “security and infrastructure” imagery.

The reporter pointed out that the county had let a documentary crew into the jail to film the same allegedly secret area. The court said you can’t have it both ways, and most of what was requested had to be released.

In Chernin v. Geauga County Park District, the park district tried to make the absurd argument that a letter with complaints and recommendations was not a “public record” under Ohio law even though the document was cited in a public meeting. The citizen got the record.

Government agencies win their share of cases, too, and that’s appropriate. What’s important is that citizens now have a fighting chance – no matter their resources or standing.

To check it out, go to https://ohiocourtofclaims.gov/ and click on the “public records” tab. If the information on that website doesn’t answer your questions, OCOG and the ACLU of Ohio both offer online resources to citizens. OCOG also has a legal hotline service for its supporters. (Go to www.ohioopengov.com.)

Don’t be shy. Just the act of following through when government says “no” helps keep public officials on their toes.

Dennis Hetzel is executive director of the Ohio News Media Association and president of the Ohio Coalition for Open Government.