Here’s our best advice on how to keep records and meetings open in Ohio
(Editor’s note: The following column is available for use by ONMA members as an op-ed column. We recommend publishing it during Sunshine Week 2019, March 10-16.)
By Dennis Hetzel, Executive Director
The Ohio News Media Association and our related Ohio Coalition for Open Government frequently receive calls from citizens who need help navigating Ohio’s “sunshine laws” – the laws that ensure government is open, transparent and accountable.
Sunshine Week is a national effort to raise awareness about these important values. That week is March 10-16 this year. With that in mind, I’m sharing the typical advice we give to questions about Ohio’s open meetings and open records laws.
- If the record exists, the simplest thing to do is to ask for it or to review it at their office. Officials aren’t required to create records that don’t exist.
- You are not required to identify yourself, but you may wish to do so in order to expedite a response.
- If officials can make a record open by redacting (blacking out) the exempt information, they have to do that.
- They have to cite the specific exemption under Ohio law that they are claiming for any denial.
- The most common reason for denial in Ohio probably is that the request is "overly broad." Keep your request as narrow as possible by subject, timeframe, etc. Avoid phrases like "all the emails" and "every document." It is better to piecemeal what you want into multiple requests.
- An increasingly common denial is based on attorney-client privilege. Just because an attorney "touched" or saw a document is NOT a reason for denial. The attorney must be acting specifically in a lawyer role for the entity as it relates to the records in question.
- We get lots of questions about police records. Most exemptions with police records fall into what is called the CLEIRs exemption, for Confidential Law Enforcement Investigatory Records. Initial incident reports are open. Records of closed cases should be open. CLEIRs is not a blanket exemption for records related to active investigations either. To be exempt, records must fit both parts of a two-part test.
- The most common complaint about open meetings involves improper use of executive sessions. Public bodies must announce the specific reason for an executive session and take a vote to meet in secret. They are not allowed to vote in executive session. That includes so-called “straw votes.”
So, what happens if you’re denied? It used to be the only option would likely be a long, expensive court process. You can now appeal the denial of access to a public record for a $25 fee and do everything online. The decision has the force of law and does not require that you have an attorney to succeed. The Ohio Court of Claims operates the site, which you can find at this Web link: https://ohiocourtofclaims.gov/public-records.php
This Court of Claims process is working great, but it can’t be used for open meetings violations or to get court records. We’ll be working with the Legislature and the courts to try to change that.
Do you need more free resources? Type the words “Ohio Attorney General Sunshine Law Manual” into Google, and you’ll find the “bible” that Ohio officials should follow. It’s filled with clear detail on Ohio’s open records and open meetings laws: http://www.ohioattorneygeneral.gov/yellowbook.
The Ohio ACLU also has an excellent guide to using the Ohio open records and open meetings laws: http://www.acluohio.org/wp-content/uploads/2016/07/PublicRecordsGuide2016.pdf
While I believe most public officials are well-intentioned, we also hear of situations that involve truly awful behavior. For those who have the resources to fight government head-on, we can provide a list of experienced lawyers from across Ohio who know how to litigate these cases.
Our goal is to make those battles less necessary. Informed citizens can go a long way toward ensuring that Ohio has the open, accessible government we want and need.
Dennis Hetzel is the outgoing executive director of the Ohio News Media Association and president of the Ohio Coalition for Open Government. For more information on OCOG or to donate in support of OCOG’s work, go to OhioOpenGov.com.