Ohio Coalition for Open Government OPEN GOVERNMENT REPORT

Summer 2018 • Published by The Ohio News Media Foundation

School bus bill Justices refuse to reconsider Pike signed by Kasich County autopsy secrecy ruling By Dennis Hetzel, OCOG President From The Columbus Dispatch Journalists will continue to see names of minors in school-bus accident reports, though The Ohio Supreme Court has this information only will be made available declined to reconsider its decision upon request after Governor John Kasich holding that The Dispatch and The signed House Bill 8 into law on June 29. Cincinnati Enquirer are not entitled While an amendment supported by open to copies of the full autopsy reports government groups and the Ohio News Media in the slayings of eight relatives in Association was added to the bill, helping to Pike County. improve it, HB8 still hinders public access to The court refused to again critical information. examine the case by a 5-2 vote, with In my role as director of the ONMA, I opposed Justices Terrence O’Donnell and this bill for nearly two years for two main Sharon Kennedy dissenting, in a ruling issued (on April 24). reasons. First, the information on these reports The court voted 4-3 on Dec. 14 that much of the information in the autopsy is important and even critical for the public to reports of eight Pike County slaying victims is not yet public record and cannot be have. Almost any school-bus accident is a released since the case remains unsolved more than two years after the killings. matter of great public interest. Second, we were The county coroner, with the support of Attorney General Mike DeWine, refused greatly concerned about setting a precedent to to release unredacted copies of the autopsies, saying their release would harm remove information from initial police incident the investigation. The newspapers had insisted that public records law contained reports. It is settled law that incident reports are no provisions shielding the complete autopsy reports from release. Officials had open records with only specific exceptions such released heavily redacted copies two months after the legal actions were filed. as Social Security numbers. The legal fight stemmed from the April 22, 2016, shooting deaths of eight people Supporters of HB8 testified that this in three trailers and a camper in Pike County. information made children prey to pedophiles The majority ruled that the unreleased portions of the autopsy reports could be withheld as confidential law enforcement investigatory documents. (see school bus, page 3)

Supreme Court to hear OCOG-supported Inside This Issue case on secret ballot voting Update from Dennis Hetzel on pending sunshine law bills in Ohio The Ohio Supreme Court agreed in June The Cuyahoga County Common Pleas ...... 2 to decide a case that argues public bodies Court and the Cuyahoga County Court of Time to lift veil of secrecy from Ohio’s shouldn’t be able to vote by unsigned secret Appeals originally ruled against Meade’s suit, jobs initiative ballots. The lawsuit was filed by Patricia deciding a secret ballot vote isn’t secret if the ...... 5 Meade, publisher of the MOREBratenahl public body keeps copies of the ballot slips. community newsletter, and alleges the However, OCOG’s brief argues that other How to file a public records complaint Bratenahl village council violated state law case law disputes these rulings, including a through the Ohio Court of Claims by using secret ballots to elect a president 2011 opinion from the Ohio Attorney General ...... 8 pro tempore. stating that the “‘open meetings’ requirement The 1st Amendment and bad The Ohio Coalition for Open Government of R.C. 121.22 is not satisfied when members defamation lawsuits (OCOG) filed an amicus (“friend of the court”) of a public body … vote by secret ballot.” ...... 8 brief in support of Meade’s lawsuit, stating The Supreme Court declined to hear that secret ballot voting by public bodies is another aspect of the case, which involved Ohio Roundup, pages 10-14 inconsistent with both open government the way the village handled its minutes. National News, page 15 practices and state law. (see amicus briefs page 3) OCOG Open Government Report Summer 2018 Issue

Dozens of sunshine bills still Ohio Coalition for Open Government pending in Ohio Legislature

By Dennis Hetzel, OCOG President 1335 Dublin Rd., Suite 216-B Columbus, Ohio 43215 Since the current, two-year legislative Phone: (614) 486-6677 session began in 2017, OCOG has tracked at least 34 bills that would affect OCOG TRUSTEES access to information and government transparency in Ohio. George Rodrigue (Chair) Most of these bills involve open The Plain Dealer records. Only three of those bills have Cleveland become law and 31 are pending, although three of the 31 are awaiting Gov. Kasich’s likely signature at this writing. Lou Colombo Hetzel Baker Hostetler Some of these bills are fairly routine Cleveland with minor language changes. Several involve a growing number of public Mugshot sites (HB 6): Media outlets Christopher Cullis employees – judges, for example – that engage in the extortion-like practice The Bryan Times who want their job classifications to be of publishing arrest “mugshots” and then Bryan added to the list of those who can have charging people to have the photos their identifying and family information removed now are in violation of a state Michael Curtin redacted from public records. Ohio law that makes it a crime to charge for former state representative, journalists can continue to see this removal of criminal record information. media executive information. Columbus There also are several pending bills Key bills awaiting Kasich signature with the well-intentioned goal of giving Jamie Justice offenders a second chance by making it Public records cases (HB 312): This bill ABC 6/FOX 28 easier to seal or expunge records. OCOG closes an important, outdated loophole in Columbus has consistently opposed expungement, public records law. Under old language, which is the actual destruction of records, if you won a public records case in court, Bill Southern because expungement eliminates you couldn’t collect fees unless you The Blade accountability and any record of what made the original request by certified Toledo happened in those cases. For example, in mail or in person. Digital requests now situations in which someone is wrongfully will count as well. arrested, it is important to know why the Bruce Winges Regional councils (SB 239): A scandal Beacon Journal government made a critical mistake. So involving a regional government council’s Akron far, no bills have passed that involve practices that an audit uncovered physical destruction of public records. resulted in this reform bill. The bill stops PRESIDENT Here is a status report on the most the absurdity of claiming that the names Dennis Hetzel significant bills. Bills that don’t make it to of members of a council can be redacted Ohio News Media Association the finish line by Dec. 31 will die; backers as trade secrets. Columbus must start over in the new session that begins in 2019. High-interest pending bills COUNSEL David Marburger Bills that became law Body cameras (HB 425): Police- Cleveland worn body cameras create all sorts of Accident reports (HB 8): Names of privacy and transparency issues. This is NEWSLETTER EDITOR minors in school-bus accidents will be thoughtful legislation in my opinion that Jason Sanford redacted from publicly available reports preserves accountability while dealing Ohio News Media Association although journalists will retain access. with legitimate privacy concerns – far Columbus (See related story.) better than what some other states have Follow OCOG news online at State budget (House Bill 49): Several done. As amended, the bill also covers concerning public records provisions dashboard-mounted cameras and has www.ohioopengov.com. were in the state budget bill such as a good appeal process when the public restrictions on access to Ohio Lottery interest might outweigh the desire This newsletter is published twice Commission audits. The Legislature for privacy. The bill has passed the yearly for the Ohio Coalition for Open repaired or eliminated most of those House with some issues that still need Government. OCOG is a 501(c)3 non- issues by the time the budget passed. addressing in the Senate. profit organization affiliated with the Ohio News Media Foundation. (continued above, page 3)

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Continued from page 2 comparisons. The bill pushes Ohio into that even CIA records and presidential the mainstream of how information papers become open eventually. However, Ohio Citizen Participation Act (SB 206): should be handled in the 21st Century. there is some unintentionally bad language This bill mirrors Texas legislation closely in the bill that could close access to some Ohio Checkbook (HB 40): The Ohio that protects citizens when they get sued House has passed a bill that would current public records that needs fixing. for the legitimate expression of their First require future state treasurers to continue Substance abuse (HB 427): This bill Amendment rights on matters of public the award-winning government spending addressing the opioid epidemic would interest and concern. Plaintiffs file suits to website, www.ohiocheckbook.com. require counties to report monthly on harass citizens and discourage others from overdose deaths in a public record. speaking out by engaging them in costly, Campaign finance (SB 44): Common complex litigation. The expedited court sense here. Local campaign committees Redistricting (HB 644): Requires public process disposes of such cases faster. and others could file their finance records and meetings of the Legislature statements electronically to the Secretary and the Ohio Redistricting Commission Data Ohio (HB 3): The bill would make of State’s office. It should be mandatory. to be generally open during that process. public records much easier to download and use. For example, the practice of Public disclosure (HB 139): The Ohio Dennis Hetzel is executive director only making Excel documents available House has passed this bill of great interest of the Ohio News Media Association as PDF files would cease. Local to historians, genealogical researchers, and president of OCOG. Send email to governmental bodies also would have archivists and anyone else interested in [email protected] incentives to move to the same account old records by making now-closed records charts, allowing for better, more accurate presumptively open after 100 years. Note School bus bill signed by Kasich Continued from page 1 Senate opted for the latter, and it was this but it wasn’t needed. We argued that the version that Kasich signed into law. concern already was covered by existing or identity thieves. We tried to demonstrate For journalists to obtain this exemptions for medical information, and that these claims were illogical and information, the request must be made in that the language was an inappropriate unsupported by any evidence. This was writing and include the journalist’s name addition to the ever-growing list of a difficult bill to fight, because every and title and the name and address of the exceptions. The bill takes the list of legislator’s initial response was to protect journalist’s employer with a statement that exemptions to our state’s open records children and their privacy. disclosure of the information sought would law up to the letters “hh.”. After the bill passed the House easily be in the public interest. and our compromise ideas were rebuffed, Unfortunately, this law means we we received consideration of two have two new exemptions to the open amendment suggestions in the Senate. records law. The House also added an New OCOG One would have redacted the names only unrelated exemption to protect health from Internet postings of the reports. The care information held by certain quasi- board members other was to create a “journalist exception” governmental entities. We do not believe OCOG has two new members similar to other areas of the law. The this exemption will affect newsgathering, of the Board of Trustees. They are Michael Curtin, who held various executive roles with The Columbus OCOG files two amicus briefs Dispatch and is a former Ohio state representative, and Lou Colombo, Continued from page 1 combative with three Cincinnati police retired general counsel for the Ohio officers. Police recorded the altercation News Media Association and one of The case is Meade v. Village of on their body cameras yet the city refused Ohio’s leading sunshine law experts. Bratenahl, Case No. 2018-0440. to release the footage, stating it is part of Curtin and Colombo replaced an investigation. Catherine Turcer of Common Cause OCOG supports Enquirer in However, in its brief filed in April, police body camera footage case OCOG argued the footage does not Ohio and Monica Dias of the Frost depict Cincinnati officers investigating Brown Todd law firm in Cincinnati, OCOG also is supporting a case any crime and is therefore subject to who were term-limited. brought by the Cincinnati Enquirer against release under state law. “I’m really pleased by the addition the Cincinnati Police Department. The This is the second time in two years of Mike and Lou to the OCOG board,” Enquirer and other media organizations the Supreme Court has considered said OCOG president Dennis Hetzel. argue the department is improperly a police camera case, with the court “They bring a ton of experience on withholding police body camera footage ruling in 2016 that footage from police open government issues to our from the public by the way it applied dashcams are public records with limited board. I know I speak for all our the confidential law enforcement exceptions and should be released to the trustees in thanking Catherine and investigatory records (“CLEIR”) exception public upon request. Monica for their work on behalf of to the state’s public records act. The case is Cincinnati Enquirer v. City OCOG and for their strong dedication The case involves an August 2017 of Cincinnati Police Department, Case No. to open government.” incident in which two men became 2017-1618. 3 OCOG Open Government Report Summer 2018 Issue

Open Government News and Commentary Senate considers Ohio Citizen Participation Act

By Olivia Wile, ONMA intern I think we need to pay the same attention and John Greiner. Proponent testimony to protecting First Amendment rights.” was provided by representatives from More than eight months since its Twenty-eight other states around the the Ohio Alliance to End Sexual Violence initial appearance in front of the Senate, country, including Texas and California, and Yelp. the much-anticipated second hearing for have already established similar laws. Though unsure of the legislature’s the Ohio Citizen Participation Act was Following Hetzel was Bridget agenda, Hetzel feels that progress was held June 6 in the Ohio Senate. Mahoney, chair-elect of the Ohio made after the bill’s second hearing. As time is running out in the year, Domestic Violence Network. During her “I was very pleased by the how the the pressure is greater than ever to get testimony, Mahoney, a victim of domestic hearing went and the interest that the Senate Bill 206 passed. If the bill, along violence, explained how her life took committee had, especially Sen. Huffman, with hundreds of others, does not get another turn for worse when her ex- the bill sponsor, and Sen. Coley, the passed by Dec. 31, it will die unless husband filed a strategic lawsuit against committee chair,” said Hetzel. “The resurrected in 2019. Supporters say public participation, or SLAPP-suit. problem is that the legislature has so the bill would give Ohio the country’s “Because Ohio does not have an much to do and so little time to do it.” best “anti-SLAPP” law: one that would anti-SLAPP law, I was forced to endure The impetus for ONMA’s support expedite court processes while also nearly two years of painful proceedings, was a high-profile libel action against the protecting First Amendment rights, even an agonizing discovery process and Chagrin Falls newspaper for its coverage in the digital realm. torturous depositions,” stated Mahoney of a protest against Murray Energy Co. Ohio News Media Association in front of the Senate. “After spending The newspaper eventually won the case, Executive Director Dennis Hetzel over $100,000 in legal fees, I ran out but only after the newspaper, citizens testified about the importance of making of money defending the meritless who also were sued and insurance this bill a law. lawsuit, so on the day of the trial, I had companies spent thousands of dollars “These are constitutionally protected to regrettably bargain away some of my as Murray continued to appeal. An Ohio rights,” said Hetzel in an interview. “We’re freedom of speech.” appellate court issued an opinion with spending a lot of time in this country Joining Mahoney in testifying was the unusual comment that the case talking about Second Amendment rights Gary Daniels, chief Lobbyist at the ACLU illustrated why Ohio needed an anti- and how those need to be protected, and of Ohio, as well as attorneys Jeff Nye SLAPP law.

‘Bigfoot’ lawsuit illustrates need for anti-SLAPP laws

By Jack Greiner and see maybe 10 of the cows. Then it’s daughter by email that he and his partners off into the hills you go with a guide telling would likely be suing both of us. A Branson, Missouri attraction called some pretty fanciful tales along the way. “I have significant reservations “Bigfoot on the Strip” is suing a Kansas All in all a decent experience but had we regarding any business run by someone farmer and his daughter over an unflattering paid more than the $10 I would have been who seems to think it is an acceptable review the farmer posted on TripAdvisor. disappointed. business practice to contact family According to its website, Bigfoot on the All in all, not too bad. I don’t have members and associates of a reviewer Strip is an amusement park that a “variety immediate plans to visit Branson, but if I because they seem to be unhappy with a of attractions, all themed around Bigfoot did, this review wouldn’t make me avoid review. Consequently, I am changing my (as in Sasquatch).” It includes a working Bigfoot on the Strip. (Although, I am three-star review to one star.” Scottish Highland Cattle Farm, through more of Dinosaur Golf guy myself). But it Quite honestly, one star seems which patrons can ride on a Safari vehicle. appears the folk at Bigfoot have pretty thin generous under the circumstances. But Randy Winchester and his daughter skin. According to an updated review from in keeping with their hyper sensitive visited the attraction while in Branson. Upon Mr. Winchester, his original posting led to approach, the Bigfoot folks have now filed returning home to Kansas, Mr. Winchester calls and e-mails from the Bigfoot folks: a defamation lawsuit in Taney County, posted this review on TripAdviser: “Since posting the above review, a Missouri. It claims Winchester’s review “We did the Bigfoot Safari tour as person identifying himself as an owner of was a product of “evil motive” and exposed part of a large group. The $10 price tag Bigfoot on the Strip has called my daughter the park to “contempt and ridicule.” The is about right for what we got. Basically a on her cellphone repeatedly, has contacted Bigfoot folks are making the mistake tour through some pretty rugged country my daughter by email, has tried to call my that a lot of defamation plaintiffs make – on some pretty narrow roads. They home phone at 8:30 p.m. on a Saturday, assuming that being mad about a review promote the fact they have the largest has attempted to contact me by email, and gives them a cause of action. It doesn’t. herd of Highland cows in the Midwest. You has contacted the person who coordinated And unless the Bigfoot folks can prove that spend about 5-10 minutes feeding them our tour, to complain about my original range cubes at the beginning of the tour, review. The ‘owner’ has also advised my (see bigfoot, page 5)

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Open Government Editorials and Commentary Time to lift veil of secrecy from Ohio’s jobs initiative

Editorial from The Vindicator “The filing for 2017 shows that John the program. But as we have pointed out Minor Jr., JobsOhio’s president and in previous editorials, Ohioans contribute For seven years, JobsOhio, the chief executive officer, received a raise millions of dollars in grants awarded to state’s privatized economic-development of $32,256, or 7 percent, last year to JobsOhio, and state liquor profits are endeavor, has been shielded from public $516,458. used to attract private financing. view, much to the displeasure of open- “Yet, his actual compensation likely is According to the Dispatch, the state government advocates. significantly higher.” auditor’s desire to “check the numbers” Indeed, the media have consistently is endorsed by the Ohio chapter of challenged arguments presented by the No names Americans for Prosperity, funded by the proponents of secrecy and have demanded conservative billionaire Koch brothers. accountability and transparency on behalf There’s another problem with The newspaper quoted the chapter’s of the taxpayers. Jobs-Ohio’s so-called disclosure of state director, Micah Derry, as saying, Not surprisingly, such demands have compensation. There are no names on “Since most of JobsOhio’s activities are fallen on deaf ears. the chart. The list reveals only the job title shielded from public view, a performance But that could change if a proposal and salary for each position. audit is a welcome first step toward being pushed by Ohio Auditor David That is why state Auditor Yost’s push providing greater transparency for what Yost, a Republican, is adopted by the for a performance audit is timely and we believe to be a flawed program.” GOP-controlled General Assembly and necessary. The Republican majority in the We are well aware that economic signed into law by Republican Gov. General Assembly will stand accused of development cannot always occur John R. Kasich. supporting secrecy in state government if under the glare of public scrutiny and Yost, a candidate for Ohio attorney it does not enact the necessary legislation. that secrecy is often demanded by general this year and a former journalist, “I really looked askance at its lack prospective job creators. is seeking a one-time performance of accountability,” Yost said of the Jobs- But having a private organization audit of JobsOhio, which was created Ohio program. It is exempt from open operating under the umbrella of state by statute in 2011 to replace the Ohio records and ethics laws, and its books government is bad public policy. Department of Development. are not publicly audited. We opposed the creation of JobsOhio Kasich and others contend that a But officials involved in the program from the outset and that put us at odds private organization unencumbered by have long insisted the nonprofit adheres with the Kasich administration. state laws governing public agencies is to the highest standard of accountability, The governor now has the chance needed to spur job-creation in Ohio. transparency, ethical conduct and to lift the veil of secrecy by supporting But without access to JobsOhio’s responsible business practices. Yost’s push for a performance audit. records, the media and the public have no Yet, the day-to-day operations are The state auditor should be given the way of confirming the claims of success conducted in darkness. authority to seek requests for proposals that have been made over the years. The proponents of privatization of from national auditing firms and then to We also have no insight into how Ohio’s job-creation effort continue to select the one he believes would give much money is actually spent on salaries argue that no public dollars are used for Ohioans the best review of JobsOhio. and benefits for the 81 employees. As the Columbus Dispatch reported March 12, JobsOhio continues to lowball the amounts it pays employees, including Bigfoot lawsuit case dismissed before the costs start 34 individuals who earn at least six-figure Continued from page 4 escalating. And it gives the victim the annual salaries. right to recover the lawyer fees incurred Here’s what the Dispatch wrote: Winchester made a false statement of in doing so. fact, as opposed to merely sharing an Currently, the Ohio Senate is “In its 2017 filings with the state, opinion, the big foot of the law is likely considering Senate Bill 206, which Gov. John Kasich’s privatized economic to boot their case out of court. would give Ohio citizens this type development agency again reported As well it should. But that isn’t of relief. The anti-SLAPP bill is well employees’ taxable income – which enough. The Bigfoot case is exactly written and long overdue. If you does not include salary diverted to non- the kind of pleading that anti-SLAPP happen to talk to a state legislator, taxable retirement contributions and legislation would help deter. Anti- urge them to pass it. health insurance costs – instead of their SLAPP laws address SLAPP suits gross income. – “Strategic Litigation Against Public Jack Greiner is a lawyer with the “State law requires the nonprofit Participation.” The law gives victims Graydon law firm in Cincinnati. He to report ‘total compensation.’ But its of defamation suits that get filed for represents Enquirer Media and practice of reporting only taxable income no reason other than to shut down other clients in First Amendment and serves to understate employee earnings legitimate criticism a tool for getting the media issues. by thousands of dollars each.

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Open Government Editorials and Commentary

Let sun shine when doing the public’s business

Editorial from the Columbus Dispatch and cull about two dozen candidates for The association cited a 1985 case the job to three finalists before taking where Tiffin City Council considered There is a difference between official action in an open meeting. The candidates for a vacancy in private, discussion, deliberation and decision board had announced 19 candidates then decided between two candidates — and the distinctions are especially publicly; and now we know four others in open session. Now, Clark said, important when it comes to government were privately considered as well. “we are providing boards that utilize bodies doing the public’s business. As the Columbus school board OSBA for their executive searches We hope all manner of public mounts a new search, we hope any with information about the position the officials in Ohio were paying attention in lingering misunderstanding of what auditor has taken.” March when the use of closed sessions Ohio’s Sunshine Laws require for the Cincinnati attorney John C. “Jack” poisoned and upended a superintendent conduct of public business have now Greiner, considered a Sunshine search for the Columbus City Schools. been resolved — and that other Ohio Law expert by the Ohio News Media The distinctions can be confusing school boards that might have been Association, agrees that case does not when a government body — say following similar misguided practices are support anything more than deliberation the Columbus Board of Education now on notice as to the law’s demand in executive sessions. And Webster’s — receives conflicting information for public decision-making. defines deliberation as “consideration from different sources, including a The auditor had advised the school and discussion of alternatives before membership organization such as the board — just before it planned to reaching a decision.” Ohio School Boards Association, which name the next superintendent — that These distinctions are important as board members and their legal counsel decisions made illegally in closed the Columbus school board begins a may rely on for advice specific to their sessions could subject board members new search for superintendent. responsibilities. to personal financial liability, making it We hope the Groveport Madison Differences between discussion, clear the process was tainted. Board of Education and the school board deliberation and decision were at Conversely, the school boards for Westerville City Schools are also the heart of problems that arose in association had advised its members paying attention. Groveport is seeking the Columbus school board’s initial that weeding out candidates in closed a new superintendent to succeed Bruce search for a superintendent to succeed sessions was fine. In fact, that process Hoover, who resigned in February. Dan Good, who retired at the end of “is used by many of our members to Westerville needs a new school December. narrow their lists of candidates,” OSBA treasurer with January’s retirement That search was scrapped after The Chief Legal Counsel Sara Clark said in of Bart Griffith. Thankfully, there has Dispatch revealed and State Auditor a letter to the state auditor, disputing been no indication those districts made Dave Yost challenged the board’s use of his interpretation of the Sunshine Law decisions in closed sessions. private executive sessions to consider restrictions on executive sessions.

The sun shines for everyone, not merely journalists

Editorial from The Chillicothe Gazette Those examples and a myriad of keep open government alive. others are the reason why your right to Think about it this way: Would Because journalists are the know is so important in Ohio and the you want your electric rates to go up predominant users of public records United States. without being notified? Would you like laws, it’s a common misconception that It’s about your right to know how to remain ignorant of how much your the rules only exist because of the media. people vote in the city council, board of government paid to buy a building or It’s correct that this newspaper — commissioners, township trustee, and piece of property? Your right to know and many like it in both our company school board meetings. It’s also about that information is protected by those and across the country — use them them discussing the public’s business in laws frequently to report on daily news and front of you, not behind closed doors. Openness in government is often to reveal information that would often be Your right to access public like a car battery — you never realize kept hidden from the public. Journalists documents that help you understand how much you need it until it’s gone. couldn’t do a lot of what we do to bring how public money is spent, how public Sunshine Week exists to illustrate how sunlight to certain issues without the so- employees are performing their jobs much we — regardless of profession called Sunshine Laws. and exactly how things are getting done — need open government and public But the rules are written into the Ohio in your area. participation in government. Revised Code, the Open Meetings Act, The fight to keep this openness is and the Freedom of Information Act are never-ending, and this year is shaping for everyone. up to be another year of lobbying to

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Open Government Editorials and Commentary

Police body cameras are here, law should catch up

Editorial from The Columbus Dispatch It isn’t a simple matter of clipping a Police officers deserve some credit camera onto each officer. The city had to for adapting to the cameras with minimal The process of equipping all Columbus buy server space to store the video and fuss. police officers with body cameras appears run fiber-optic cable to police substations Even though the cameras ultimately to be going relatively smoothly and ahead so the video can be uploaded. To its protect good cops by disproving any of schedule, and that’s a credit to the credit, the city has budgeted for additional false claims of police misbehavior, getting department and the officers. employees to handle requests from the accustomed to having one’s every public Meanwhile, we hope the General public to see bodycam footage. interaction recorded must be a challenge. Assembly will move as purposefully to pass The primary benefit of body cameras Officer Joseph Bogard learned that the legislation which aims to clarify that video is to afford the public a view of how police hard way when he faced a public backlash from police body cameras is a public record, officers do their jobs. If there’s not an and earned a written reprimand in while establishing some exceptions. efficient system in place to make that September after body cameras recorded Current law isn’t clear, and the Ohio happen, they’re far less valuable. him talking big to other officers about how Supreme Court is preparing to hear a House Bill 425 states clearly that body- roughly he would have handled a difficult case in which the Cincinnati Enquirer is camera video is public and establishes a suspect who was just arrested. challenging the city of Cincinnati’s refusal process for anyone who is denied access In a report on the incident, a sergeant to release bodycam video from an Aug. 8 to body-camera video to file a mandamus wrote that, while Bogard’s comments incident in which an officer used a Taser action in the Ohio Supreme Court were insensitive, officers often use “crude on a suspect. challenging the denial. Rep. Hearcel humor and crass language to cope with We live in a world in which cameras are Craig, a Columbus Democrat, is a primary the stress of being involved in dangerous everywhere, and bystanders’ video has sponsor of the bipartisan legislation along and traumatic incidents such as this.” been the basis of numerous complaints with Rep. Niraj Antani, a Miamisburg Further, he said, “Officers are adjusting of police brutality. Having an official video Republican. to the shrinking number of venues in record from an officer’s perspective is a The bill, which has yet to receive a which they can process and de-stress in good insurance policy, both for the public hearing, allows some exceptions, but an authentic and real manner.” and for officers. they’re generally narrow and reasonable. That shrinking is a price officers are City officials expected the full rollout Dennis Hetzel, executive director of the paying for body cameras. of about 1,300 body-mounted cameras Ohio News Media Association and as But for them and for the public, the to take until the end of this year, but now such an advocate for transparency, said transparency and fairness cameras offer they expect all of them to be in place by the bill is better than many other states’ are worth it. the end of June. laws regarding body-camera video.

Support OCOG by becoming a member today Benefits include access to the OCOG legal hotline and more

The need for the Ohio Coalition of Open Government (OCOG) has never been greater. The need for your support of OCOG has also never been more urgent. Don’t take a chance that open government issues in Ohio could be curtailed or harmed. Join OCOG today! Along with supporting fights to preserve Ohio’s open government, members also receive access to the OCOG legal hotline, which can provide basic assistance on open government and sunshine law issues you may be facing. Other benefits include regularly updated information on pending legislation in the Ohio General Assembly which could impact open government issues in the state. To join OCOG and receive the OCOG legislative watchlist, see the membership information on the back cover of this issue of the Open Government Report. You can also go to www.ohioopengov.com for more information and to apply. And don’t forget that OCOG’s website is continually updated with news and information about Ohio open government issues.

7 OCOG Open Government Report Summer 2018 Issue How to file a public records complaint through the Ohio Court of Claims

Ohio’s new public records mediation process, which went into effect in 2016, continues to be a success. A large number of open government cases have been favorably settled in the last two years, with the mediation process offering Ohio citizens a low-cost and timely process to seek the release of public records when government entities deny their initial request. To use the public records mediation process, follow the chart below. To receive this illustration as a free 8.5 x 11 size print copy or PDF, email OCOG’s Jason Sanford at [email protected].

START HERE

Go to www.ohiocourtofclaims.gov/public-records.php​

If staff attorney contact with the public agency doesn’t resolve the problem, your complaint will be referred for 1 Download the Public Records formal mediation. If mediation fails the Access Formal Complaint form. court will make a ruling, with both sides retaining appeal rights. 2 8

Staff attorney will contact the Complete the form, providing as public agency for an explanation much supporting information as of why your original records possible. request was denied. This contact frequently resolves the problem. Court o Cms u Reors roess Submit the form by either mail or If your complaint meets legal online at www.ohiocourtofclaims.gov/ requirements, a court attorney efile.php and pay $25 filing fee. will review your request and contact you. The Court of Claims staff will determine if your complaint meets minimum legal requirements. If complaint doesn’t meet minimum requirements, staff will either return it to you so you can correct any errors or summarily dismiss it.

Ohio Coalition for Open Government Working to strengthen and support open government and public access

8 OCOG Open Government Report Summer 2018 Issue

Open Government Editorials and Commentary Public’s right to government records is crucial

Editorial from The Hillsboro Times Gazette when The Times-Gazette sought an whenever things get so far wrong as to audio recording of a Hillsboro City Council attract their notice, they may be relied on to The week of March 11-17 is designated executive session, where it is believed that set them to rights.” Sunshine Week, as declared since 2005 by a discussion was held about the decision Abraham Lincoln noted, “Let the people the American Society of News Editors. The to continue paying a former safety and know the facts, and the country will be safe.” week is dedicated to reminding the public service director even after he had been Ohio’s own state Supreme Court justice, of the press’s invaluable role in ensuring dismissed. The city cited “attorney-client Maureen O’Connor, perhaps summed it up open government. privilege” in keeping the recording out of best in a 2006 decision in the case of Kish The Times-Gazette’s experience the public realm, a decision with which this V. City of Akron: “A fundamental premise with local governments in seeking public newspaper continues to disagree. of American democratic theory is that records has been mostly positive. That More recently, we demanded answers government exists to serve the people… experience was put to the test in 2014, from federal officials about the decision Public records are one portal through which when an audit sponsored by the Ohio to withhold grant funds for a previously- the people observe their government, Coalition for Open Government, organized approved Rocky Fork Lake project. Some ensuring its accountability, integrity and by the Ohio Newspaper Association, found answers were eventually provided, but we equity while minimizing sovereign mischief that in Highland County, local officials — are continuing to monitor the situation and and malfeasance.” including those with the county, the city will keep readers informed through future We concur, and we join other news of Hillsboro and Hillsboro City Schools — reporting on the subject. media in our continued commitment to responded promptly to record requests. Thomas Jefferson said, “Whenever guaranteeing the public’s right to be fully But records requests are not always the people are well informed, they can be informed about government decisions granted. Such was the case last year trusted with their own government; that and actions.

People in Lancaster deserved more transparency with regards to controversial Parks Board vote

Editorial from The Lancaster So, with no particular nod to the citizens a notice that the Mount Pleasant issue was Eagle-Gazette who voiced their opinions on the matter, the up for a vote. Maybe it’s on the Parks and board voted. Reaction to that vote has been Recreation Facebook page? Nope. Were you surprised upon hearing the mixed. Some are upset at the decision, Does that comply with the law? Is the (Lancaster) Parks Board had narrowly voted others are pleased. Still, others felt as if the notification provided “consistent” and does to approve the lighting of Mount Pleasant? board was less than transparent. it actually reach the public? Join the crowd. First, let’s address what all public bodies We argue that it falls short. So, if an Would you have liked one more say on have to do by law. The Ohio Revised Code intrepid Lancaster resident wanted to the matter? Too bad. is pretty clear. The law says, according to challenge the legality of the board’s 2-1 The board, which held a pair of public the Ohio Attorney General’s Sunshine Law decision on the lighting of Mount Pleasant, sessions last year to discuss the possible manual, “The public body’s notice rule must they might be able to do so because the lighting of the Fairfield County icon, met provide for “notice that is consistent and meetings are not adequately publicized. March 14 and approved the idea. It’s done. actually reaches the public.” Further, it’s Will it change the outcome? Probably not. Let’s be clear: The board said, as early stated that regular meetings must have a Is it worth the effort? We believe all efforts as late December, that they would likely reasonable method to inform the public of to push the government to follow the rules vote in March. In that sense, they believed their monthly meetings. are worthwhile. that was an ample warning of their decision If you go to the city’s website and search Listen, this might not be a big deal to — and it was a huge one for a lot of people the agenda and minutes for “Parks Board,” the board. It may not involve a significant inside, and outside, Lancaster. you’ll find none. In fact, go to the site and expenditure of public money, but if the Parks But in a busy world with people filled search the entire site for anything related Board and the city analyze this decision, with busy lives, we believe the Parks Board to the Parks Board and you’ll see merely they should admit they could have been owed more to the community than just a a handful of items related to meetings, much more transparent than they were “hey, we’ll be making this decision later ... including a change of the February meeting, before casting a vote. Mistrust follows a lack hope to see you then.” but no reference to the March meeting at all. of transparency. Keep in mind the public’s interest in this Finally, go to the website and search for We’re told the board meets the second idea was at its apex in the late summer the board meeting dates and times of future Wednesday of each month. The next move and early fall. In fact, Mount Pleasant was meetings and you still will not find them, is yours, Lancaster residents. Make your illuminated during the county fair in October, because they are not posted. In fact, we voices heard. and that was the last formal mention of the can’t find a single place where the March 14 matter. That’s nearly six months. meeting was published, nor could we see 9 OCOG Open Government Report Summer 2018 Issue

Unless indicated, all articles excerpted from state and national news sources. For continually updated open government news, go to www.ohioopengov.com. OHIO ROUNDUP

“Message to public officials: These public understand why regulators found are not your records. These are public that FirstEnergy had overpaid by $43 records, and it is the law,” he said. “You million for the credits in transactions that need to do whatever it takes to remind may have involved an affiliated company, yourself to comply.” FirstEnergy Solutions. “If a utility is misspending customers’ money, it should not be able to keep Consultants for Columbus that a secret,” said Madeline Fleisher, Auditor: Public records Schools pledge to follow an attorney in the Columbus office citations fell 22 percent in 2017 of the Environmental Law and Policy sunshine laws Center, reacting to the decision released From the AP From The Columbus Dispatch (January 24). Her group argued before Public records-related citations across the court that the documents should be Ohio fell last year but some officials still The next superintendent of Columbus public. need to work harder to comply with the law, City Schools might be announced in But this was a mixed result for Republican State Auditor Dave Yost said in mid-October and on the job by January, consumers. releasing new statistics (on March 11). under a timeline the Columbus Board of The court also found that FirstEnergy “I can understand a bookkeeping error Education set with its hired search firm does not need to repay the $43 million — mistakes happen — but there’s no on (June 18). because of a precedent that bars justification for violating the clear law of During a special meeting, retroactive changes to utility rates. This public records,” Yost said in a statement. representatives from Chicago-based part of the decision rejects the Public Yost’s office issued 321 public B.W.P. & Associates advised board Utilities Commission of Ohio’s order to records-related citations against 267 members that they need to broaden refund the money. public entities in 2017, according to the who they would consider for the job. report. That’s down 22 percent from the ... The search consultants said they 414 citations issued in 2016 against 357 recognize that Ohio law requires that Environmental group claims public entities. the names of superintendent applicants ODNR illegally withholding be made public. Hazard, Young, Attea & Yost released his annual report to records coincide with the kickoff of national Associates, which conducted a search Sunshine Week, a celebration of access for Columbus superintendent earlier this From The Columbus Dispatch to public information. year, kept some candidates secret. “We understand the Sunshine Law The Ohio Department of Natural It showed that about 6 percent of 2017 Resources is facing a lawsuit from an audits included citations for noncompliance and we’re going to follow it ...” said B.W.P. representative Kevin Castner. “We’re going environmental group that alleges the with Ohio’s public records law, compared department has illegally withheld public to 8 percent the previous year. to have to make sure that we do exactly what your legal counsel tells us for Ohio.” records. Nearly six in 10 of the violations were The Athens-based Buckeye against villages and townships, with Environmental Network requested to view villages accounting for 29 percent of Supreme Court: FirstEnergy public records regarding oil and gas waste citations and townships accounting for records improperly shielded turned into a chemical product used by another 27 percent. Another 7 percent of the Ohio Department of Transportation to citations were issued against police, fire, from public deice roads, but its request was denied. EMS and ambulance districts. From The Columbus Dispatch The group says the chemicals are The remaining citations were issued dangerous and harmful to the environment against cities (6.5 percent), school districts The Ohio Supreme Court has found and that ODNR, which tests the chemical, (5 percent), counties (4.7 percent) and that state utility regulators went too far would not allow the group to see the most community schools (4 percent). in shielding documents from public view recent tests on the product. Yost said most violations involved in a case dealing with FirstEnergy’s “We requested to review all records failure to attend state-required public purchases of renewable-energy credits. held by the agency in order to determine records training, lacking a public records Consumer and environmental how and if the agency plans to take policy or failing to make one available to advocates had pushed for release of the steps to remove this product from the the public. documents, saying they would help the consumer market. The product was found

10 OCOG Open Government Report Summer 2018 Issue to contain high levels of both Radium 226 Bill would allow auditor to look least 25 percent funding in public dollars, and 228. And with the pending legislation over shoulder of JobsOhio usually far higher percentages. (House Bill 393 and Senate Bill 165) on The stadium is the most visible this product, we believe that the public From The Columbus Dispatch component of the nearly $1 billion Johnson has a right to know how much radiation Controls Hall of Fame Village planned for Although JobsOhio objects — and Gov. they have been or may be exposed to if the campus around the Pro Football Hall of John Kasich is likely to do so as well — they use this product,” executive director Fame. Several new youth fields also have the Ohio Senate on (June 6) unanimously Teresa Mills said in a statement. been constructed, and a four-star hotel passed a measure sought by state Auditor ODNR says it attempted to work with broke ground more than a year ago, with Dave Yost that would authorize his office the environmental group through the resumption expected this year. to look over the shoulder of the privatized records request process, but the group economic-development entity. decided to pursue a lawsuit in Franklin An amendment incorporated into a bill County Common Pleas Court. Records scarce on sexual (on June 6) would permit the auditor’s office to play a role in outlining the scope misconduct at Statehouse Audit confirms improper no- of performance audits and give it access From the AP to the work papers produced by private bid contract scheme at DAS accounting firms conducting the audits of By now, citizens are familiar with the drill: Politician resigns to “spend more time with From The Columbus Dispatch the nonprofit. Republican Yost long has lobbied family,” a cryptic apology or plea for privacy It’s old news, but state information for increased accountability from and ensues, and, only days or weeks later do technology officials ignored bidding oversight of JobsOhio. The entity journalists unearth the documents, images requirements for years to hand out millions was exempted from public-records or private posts that tell the full story. of dollars in no-bid consulting contracts, laws and government oversight when This is what happened with a sexual according to a “public interest report” by it was created to supplant the state harassment case last year against state the office of Ohio Auditor Dave Yost. Development Department in 2015 and Sen. Cliff Hite, a Findlay Republican, who The audit, prompted by an was granted a lease of the state’s liquor- left office after legislative investigators investigation by The Dispatch published sales operation to finance its operations. found that he had engaged in in April 2017, confirmed the newspaper’s “JobsOhio is a quasi-public agency inappropriate conversations and physical finding of at least $15 million in unbid that exists to serve a public purpose contact with a female state worker. work while noting that “numerous policy for Ohioans,” Yost said. “The people Sexual misconduct allegations against safeguards to prevent waste and abuse of Ohio deserve a seat at the table. state Rep. Wes Goodman, a Cardington do not exist.” This amendment ensures that any Republican, also emerged in a spotty Controls over purchasing at the performance audit of JobsOhio is fashion following his resignation after Department of Administrative Services completely independent.” House leaders discovered he’d engaged were so weak that “it’s impossible to The language, which advances to in a sexual encounter in his state office. verify whether the state overpaid for the House for consideration, would No centralized place existed for services” through the improper no-bid require performance audits of JobsOhio journalists to go to determine what they’d contracts, Yost’s office said in its report every four years beginning in 2021 done. Such complaints can be lodged or released (June 7). under written agreements to include the investigated in half a dozen places, including “Because key information and auditor’s office. by an employer, a law enforcement agency documentation is lacking, it’s impossible or the Ohio Civil Rights Commission. to know exactly what happened in these Getting at the public records that detailed contracts,” Yost said in a statement. “One Canton Repository uses public Hite’s and Goodman’s actions all but thing we do know is that the process at records to determine cost for required members of the press to already place at DAS is not even close to being new Hall of Fame stadium know who did what when and to whom. considered a ‘best practice.’ They can, A 50-state review by The Associated and must, do better.” From Ohio.com Press found that the majority of state The Dispatch reported last year that Throughout its reconstruction, confusion legislative chambers have no publicly top state information technology officials has circulated about how Tom Benson Hall available records of any sexual improperly failed to seek bids or price of Fame Stadium was paid for — mostly, misconduct claims over the past decade. quotes and sidestepped approval of about how much public money helped to Those with no information to provide the Controlling Board — a bipartisan finance the nearly $139 million project. either said no complaints were made, no spending watchdog panel — in routing The answer: $15 million. tally was kept or that they didn’t legally unbid work costing more than $200 an The rest of the stadium was paid through have to disclose the information. hour to two favored contractors. Lower- private donations and loans, according to In Ohio, certain records on the Hite ranking state purchasing analysts, financial documents The Canton Repository and Goodman cases - an investigative meanwhile, had warned that the contracts obtained through public records requests. file on Hite, and suggestive social media were improper and might be overpriced. Comparatively, most football stadiums exchanges revealing inappropriate built in the past decade have relied on at behavior by Goodman - were released in response to public records requests submitted by the AP and others. 11 OCOG Open Government Report Summer 2018 Issue

Unless indicated, all articles excerpted from state and national news sources. For continually updated open government news, go to www.ohioopengov.com. OHIO ROUNDUP

The first release laid out a process for hold executive sessions “in retreat” to investigating the mayor’s claims, which discuss “general plans for the future, or the lawsuit alleges is city business that general issues before the city.” must be done in a public manner. That differs from the Open Meetings “This action results from the conduct law, which prescribes that only certain of a cabal of five rogue members of the issues can to be discussed in closed Cincinnati City Council, whereby this session, such as litigation, personnel and cabal has conducted illegal meetings of a property acquisition. Court: Park district violated majority of (council), attempting to decide open records law matters of great public import behind closed doors and in secret communications Cleveland says it needs more From The Chagrin Valley Times and subverting the public’s right to know time on 764-day record request and understand the actions of its public An Ohio court has been advised to rule From The Plain Dealer officials,” the lawsuit alleges. that the Geauga Park District violated the The lawsuit was filed in Hamilton state’s open records law when it denied More than two years ago, Jon County Common Pleas Court by Mark a Russell Township resident’s request for Kozesky filed a public records request Miller as a citizen. He is a treasurer a copy of a letter cited at an Aug. 8, 2017 to learn the name of a Cleveland police for theCoalition Opposed to Additional park board meeting. officer who issued him a traffic ticket. Spending and Taxes (Coast) and is Jeffery W. Clark, serving as special As part of his request, Kozesky represented by Brian Shrive, of the master for the Ohio Court of Claims, included the officer’s badge number, Finney Law Firm. Chris Finney is a recommended (in late March) that the time of the traffic stop and the police Coast founder.Shrive, in the last Council the court issue an order that Shelley district he was traveling through. election, donated $1,100 to Councilman Chernin’s Aug. 14 request for the letter be Then he waited. Christopher Smitherman’s campaign. honored and she be given the document. And he waited. Smitherman supports Black resigning In addition, Mr. Clark ordered that the On (March 21), 764 days after he with the larger settlement. park district pay her costs associated filed his request, he spoke for the first with the eight-month fight to get the copy, time with someone at the city about his request. The person told him this: It could including the $25 filing fee Ms. Chernin Cleveland Heights considers paid to bring the case before the court take more time to dig up the information of claims. banning secret meetings he sought. Kozesky is the latest victim of the city From The Plain Dealer of Cleveland’s notorious failure to provide Lawsuit says ‘cabal’ held Cleveland Heights Councilman Kahlil public records in a timely manner, as secret Cincinnati City Council Seren introduced legislation (March required by state law. 19) that would do away with executive Attorney David Marburger, an expert meetings sessions called for reasons that fall on Ohio’s public records law who co- From The Cincinnati Enquirer outside Ohio’s Open Meetings laws. authored a book on the subject in 2011, The City Charter has already withstood described the way the city handled A local government watchdog alleged legal challenges to the longstanding policy Kozesky’s request as “outrageous.” in a court filing (April 9) that five members of not taking minutes for “Committee of the “What do they have, like 30 officers of Cincinnati City Council held illegal, Whole” meetings, when courts determined who all have the same badge number,” secret meetings via text and e-mail to that “home rule” takes precedence over Marburger said in an interview. “That’s discuss their position on the mayor’s the “Sunshine Law.” laughable. It’s just too funny.” request that the city manager resign. But even after winning in court, council Law Director Barbara Langhenry, Council Members P.G. Sittenfeld, and the administration recently decided whose department handles requests Wendell Young, Chris Seelbach, Greg to start recording those meetings, as well for public records, was not immediately Landsman and Tamaya Dennard -- a as to take “summary minutes” in an effort available for comment. majority of the nine council members -- to provide more civic transparency. Ohio law requires that public records talked in person and via text and email Seren believes that another simple be “promptly prepared and made when issuing two press releases about their step toward that goal would be repealing available for inspection to any person at all position on Mayor John Cranley’s request the 1986 ordinance that allows council reasonable times during regular business that City Manager Harry Black resign. and other boards and commissions to hours.” Copies must be provided “within a

12 OCOG Open Government Report Summer 2018 Issue reasonable period of time.” in the public records law in order to blur that the board didn’t break open meetings the faces of police officers in police body laws the day it accepted a hearing camera videos, even when those officers officer’s finding that ECOT was overpaid Attorney General releases are off-duty and are formally charged for the number of full-time students it updated ‘Yellow Book’ on with committing crimes. served in the 2015-16 school year. state’s sunshine laws Cleveland.com requested video on The shuttered e-school argued board Feb. 16 of police officer Angelia Gaston, members met illegally in June to come to From The Morgan County Herald who is charged with obstructing justice a decision on the repayment prior to a vote. Ohio Attorney General Mike DeWine after she drove away from a fellow Its attorney said at the time a violation has released the 2018 edition of Ohio police officer who was trying to tow her was clear because members voted Sunshine Laws: An Open Government car because of some $1,500 in parking without discussion. He also criticized the Resource Manual. The release of tickets Gaston had accrued. meeting schedule and accused board the manual, commonly referred to as The city provided the video with president Tess Elshoff of polling members the “Yellow Book,” coincided with the Gaston’s face blurred. In contrast, videos on their opinions prior to a vote. beginning of National Sunshine Week. of other criminals charged with crimes do Similarly, the board voted without “By providing elected officials, not under go similar editing. discussion earlier this month to accept public employees and Ohio citizens Langhenry’s office also uses the a hearing officer’s findings from ECOT’s with information about public records exemption to refuse the release mug 2016-17 school year attendance audit. and compliance, we help ensure shots when officers are booked into the Another $19 million was deemed accountability and transparency in the city jail on criminal charges. overpaid as a result of that review. conduct of public business,” said Attorney Langhenry did not respond to The three-judge appeals court General DeWine. multiple messages seeking comment found that because the board’s 2017 The Sunshine Laws Manual provides and clarification. City spokesman Dan proceedings were quasi-judicial in summaries of Revised Code provisions Williams said in an email that Langhenry nature, the Open Meetings Act cannot be and case law regarding the Ohio Public was consulting with attorneys at the law violated. Records Act and Open Meetings Act. firm BakerHostetler and would provide The 2018 edition includes updates on an explanation. recent open government legal decisions Williams later responded on Court orders Cuyahoga and law changes. The electronic Langhenry’s behalf, saying that the city County to release video of edition, which can be accessed at www. is going to stand by their “policy.” corrections officer’s attack The exemption the city cites is a OhioAttorneyGeneral.gov/YellowBook, on naked inmate includes clickable bookmarks to allow provision in the Ohio Sunshine Laws that readers to quickly jump to the topic in says photos of officers who are assigned From The Plain Dealer to plain clothes or undercover work which they are interested as well as An Ohio court has sided with hyperlinked court cases to allow readers are protected from having their photos publicly released. cleveland.com and ordered Cuyahoga to quickly access court decisions. County to release body camera video of The Ohio Attorney General’s Public Langhenry said in an email that Safety Director Michael McGrath has said that a jail supervisor using excessive force on Records Unit also offers Online Sunshine a naked inmate. Laws Training, which is available to the “all Cleveland Police Officers may at any time be assigned undercover or plain Lawyers for Cuyahoga County public and can be accessed at https:// Executive Armond Budish did not back SunshineLaw.OhioAttorneyGeneral. clothes positions or assignments.” The exemption would cover all up their claims that a video that led to gov/. The Online Sunshine Laws Training the firing of Corporal Brendan Johnson contains thirteen separate lessons officers, even ones that have never had an undercover assignment. should be exempt from release, Jeffrey plus an introduction video featuring the Clark, a special master assigned by Attorney General. A public records attorney and an open government advocate both called the the Ohio Court of Claims to rule on the city’s reasoning “absurd.” dispute, wrote in a 29-page decision Cleveland Police Dept. claims handed down (January 17). Clark did allow the county to unlimited right to blur images Court rules education board blur images of the inmate’s breasts, of cops accused of crimes met lawfully before ECOT vote underwear and computer screens and writings that detail her medical history, From The Plain Dealer From Gongwer and to redact 14 seconds of audio from Cleveland officials are taking the The State Board of Education didn’t the video. stance that the public does not have commit a technical violation when it But Clark wrote that the redactions the right to see un-redacted video and voted to claw back $60 million from The must be made in a way that does not images of police officers who are formally Electronic Classroom of Tomorrow, an obscure Johnson’s actions, rejecting the charged with committing crimes. appeals court has ruled. county’s claims that the entire video was City law director Barbara Langhenry The Franklin County Court of Appeals not a public record. said in an email exchange with cleveland. upheld the July decision of a lower court com that the city will use an exemption

13 OCOG Open Government Report Summer 2018 Issue

Unless indicated, all articles excerpted from state and national news sources. For continually updated open government news, go to www.ohioopengov.com. OHIO ROUNDUP

approved — particularly in the face of media they believed the meeting was evidence that they are incorrect.” closed to the public. In April 2017, days after city council’s Charlie Russo, research professor of regular meeting, attorney Steven Okey law at the University of Dayton, said the filed the court action on behalf of resident Task Force’s attempt to meet in private did Leslie J. Young, citing public meetings not seem to fit the requirements of Ohio’s law violations after council recessed into open meetings law. Enquirer calls out judge an executive session without giving the “The spirit of the law, not just in Ohio but reason. The complaint alleged this violated elsewhere, is that public business should in buried baby case: ‘Total the Ohio Revised Code rules, pointing to a be the business of the public. People disregard for the law’ video of the meeting posted by the Alliance should know what’s going on,” Russo said. Review on its YouTube channel. He acknowledged that there are some From The Cincinnati Enquirer “The video accurately records that exceptions allowing private meeting. “But The Enquirer is challenging a judge’s no member of council cited any purpose none of those exceptions applied. I don’t order to strike information from a public (for the executive session),” Okey believe they made the right call.” court filing in the high-profile case of wrote in a 12-page memorandum Nov. a teenager charged with purposefully 13 responding to the city’s motion for Court to review lethal drug killing, burning and burying her newborn summary judgment against his case. baby girl in her family’s backyard. “Yet the statutory purpose (personnel) records Ohio wants to shield (In early February) Warren County conveniently appears in the minutes.” From The News Tribune Judge Donald Oda responded to a motion from the teenager’s attorneys Ohio’s prison system must produce asking for a change of venue by calling Media questions prompt joint records about lethal drugs it wants it “inflammatory and prejudicial.” task force on Dayton schools shielded from public view for justices He ordered pages of information, to cancel meeting on the state Supreme Court to review likely details that have not been released privately as part of an open records From The Dayton Daily News publicly, stricken from the record. dispute, the court ruled. Enquirer Attorney Jack Greiner called The new Facilities Task Force At issue is a lawyer’s request for Oda’s actions “impulsive” and said in a studying potential closure of Dayton multiple records about Ohio’s lethal motion to an appeals court it shows the Public Schools buildings canceled its injection drugs, including who made judge has a “total disregard for the law.” initial meeting (on January 9) after the them and when they expire, and whether members had already arrived. a state secrecy law prohibits that information from release. Judge denies attempt by city At issue was a disagreement between Task Force members and local media The high court ordered the Department of Alliance to dismiss public about whether the meeting was open to of Rehabilitation and Correction on Dec. meeting lawsuit the public under Ohio’s open meetings law. 29 to provide the records for justices to Reporters from the Dayton Daily review within 10 days. From The Alliance Review News and WHIO-TV, plus local activist Among other disputed documents The city of Alliance’s attempt to have and blogger David Esrati, arrived early are correspondence related to Ohio’s a public meetings lawsuit dismissed was for the 9:30 a.m. meeting, and were efforts to obtain those drugs, and denied by Stark County Common Pleas allowed to set up cameras and tables. correspondence from the prison system judge Taryn L. Heath on (January 23). But as the meeting was about to start, to or from any manufacturers. Alliance requested a summary DPS spokeswoman Marcia Bonhart asked The open records complaint was judgment — which seeks a ruling by a the media to leave, saying the event was brought on behalf of Elizabeth Ochs, court without a trial — in a lawsuit filed by not open to the public. A Dayton Daily a Denver lawyer whose firm, Hogan a city man, who contends an executive News reporter immediately presented a Lovells, previously represented a session in Alliance City Council was a letter suggesting the meeting qualified as Virginia death row inmate challenging violation of the Ohio Sunshine Law. an open meeting under Ohio law. the constitutionality of that state’s lethal Heath noted in the five-page judgment Acting DPS Superintendent Elizabeth drugs. Killer Ricky Gray was executed in entry that she “cannot, and will not, Lolli, Dayton City Manager Shelley January 2017 for killing a family in 2006. accept (the city’s) contention that a Court Dickstein and Task Force co-chairs must blindly accept the meeting minutes Mohamed Al-Hamdani and Jeff Mims of a public body because they have been scanned the document, then told the

14 OCOG Open Government Report Summer 2018 Issue

Unless indicated, all articles excerpted from state and national news sources. For continually updated open government news, go to www.ohioopengov.com.

working in the Old Executive Office a uniform method to submit requests for Building, standing over a desk with government records through a single scraps of paper spread out in front of him. website. National Lartey, who earned an annual salary In addition, Cuomo said the system will of $65,969 as a records management be the first of its kind in the nation that will analyst, was a career government official provide an open-access records request with close to 30 years under his belt. “web form” that allows the requester to News But he had never seen anything like this select multiple state agencies for a single in any previous administration he had records request. worked for. He had never had to tape the In addition to providing a single point president’s papers back together again. of access to request records from New York State agencies and authorities, Armed with rolls of clear Scotch tape, Cuomo said Open FOIL NY offers many Lartey and his colleagues would sift additional features and benefits including: through large piles of shredded paper and put them back together, he said, “like • An open-access online form to a jigsaw puzzle.” Sometimes the papers request records from up to three would just be split down the middle, but agencies simultaneously, leading other times they would be torn into pieces the nation in providing easy public Judge considers public so small they looked like confetti. access to multiple state agencies; access to opioid data It was a painstaking process that • Direct access to a growing body of was the result of a clash between legal online information and resources, From The Herald Star requirements to preserve White House including agency reading rooms and A federal judge in Ohio will consider records and President Donald Trump’s Open Data NY. whether to allow public access to odd and enduring habit of ripping up government data detailing years of papers when he’s done with them — In the next phase of Open FOIL NY, prescription opioid painkiller shipments. what some people described as his Cuomo said state agencies will be able The information is at the heart of unofficial “filing system.” to use software designed and built by lawsuits filed by hundreds of local Under the Presidential Records the Office of Information Technology governments against the companies Act, the White House must preserve all Services to process records requests that manufacture, distribute and sell the memos, letters, emails and papers that more efficiently. drugs, which are blamed for sparking an the president touches, sending them to addiction and overdose crisis that killed the National Archives for safekeeping as Florida officials indicted in historical records. more 42,000 Americans in 2016 alone. public records scandal The federal government agreed But White House aides realized early earlier this year to share the data with on that they were unable to stop Trump From The Miami Herald the governments in cases overseen by from ripping up paper after he was done In a move that should send a chill Judge Dan Polster in U.S. District Court with it and throwing it in the trash or on down the spines of thousands of elected in Cleveland. The agreement came with the floor, according to people familiar with officials in Florida, former Martin County tight limits allowing only the plaintiffs to the practice. Instead, they chose to clean Commissioner Anne Scott, a retired see the information. it up for him, in order to make sure that judge originally from Chicago, and But journalists for The Washington Post the president wasn’t violating the law. current Commissioner Ed Fielding were and HD Media, which owns The Charleston booked (in November) into the county jail Gazette-Mail in West Virginia, have made New York unveils freedom of after being indicted in a public records public records requests seeking the data. scandal that already cost taxpayers The Charleston newspaper reported in information website upward of $25 million. 2016 on a version of data that it obtained for From Government Technology Scott, 69, who lives in Hobe Sound and West Virginia, finding that 780 million pills lost her seat after one term in November, flowed into the state over a six-year period Gov. Andrew Cuomo unveiled a new and Fielding, 73, were charged with two during which more than 1,700 residents website that he says will make it easier counts each of failure to permit inspection died in overdoses from prescription opioids. for the public and the press to access and copying of public records. records from various state entities under Each count is a misdemeanor that New York’s Freedom of Information Law. Meet the guys who tape The website, called Open Foil NY, could, at worst for them although unlikely, Trump’s papers back together offers a centralized online location to file see the elected officials spend up to a FOIL requests with 59 state agencies year in jail. From Politico and public authorities and was lauded Solomon Lartey spent the first five by Cuomo as offering, for the first time, months of the Trump administration 15 Ohio Coalition for Open Government

1335 Dublin Road, Suite 216-B, Columbus, Ohio 43215 Tel. (614) 486-6677 • Fax (614) 486-6373

he Ohio Coalition for Open Government (OCOG) is a government officials for compliance, filing “amicus” briefs in Ttax-exempt 501 (c)(3) corporation established by the lawsuits, litigation and public education. Ohio News Media Foundation in June 1992. The Coalition Annual membership to OCOG entitles a group or is operated for charitable and educational purposes by individual the use of the FOI legal hotline, and subscription conducting and supporting activities to benefit those who to the newsletter. seek compliance with public access laws. It is also affiliated OCOG is funded by contributions from The Ohio News with a national network of similar state coalitions. Media Foundation and other outside sources. Its seven- The Coalition serves as a clearinghouse for media and member board includes public trustees from organizations citizen grievances that involve open meetings and open with an interest in freedom of information. For board records, and offers guidance to reporters in local government members, please see the masthead on page 2. situations. The activities of the Coalition include monitoring

OCOG needs your support!

COG’s most public – and expensive – activity is supporting • Police can no longer indefinitely withhold entire files of closed Olegal cases involving open government issues in Ohio. cases just because someone could file a future action, thus The Coalition receives multiple requests each year to provide providing access to those who may be able to prove they “amicus” (friend of the court) briefs in pending cases. OCOG’s were wrongfully convicted. OCOG’s support was critical in experienced attorneys have helped plaintiffs achieve major wins a multi-year battle to provide an avenue for the Innocence at the Ohio Supreme Court. Just in the past two years, cases Project at the University of Cincinnati to evaluate these OCOG supported resulted in the following rulings: claims. (Caster v. City of Columbus)

• Thanks to the efforts of courageous student journalists, The cost of such briefs is high – ranging from a minimum police records kept by private college police forces utilizing of $5,000 in most cases to $10,000 or considerably more with sworn and commissioned officers are now subject to Ohio’s additional appeals adding more costs. Given OCOG’s resources, open records law – meaning that these forces no longer only one or two cases a year can be considered. can secretly arrest and detain people or investigate thefts, These issues never go away. There is an urgent need for assaults and other campus incidents that should be open to an organization such as OCOG to help fight these battles. The scrutiny. (Schiffbauer v. Otterbein University) Coalition particularly seeks support to bolster the Hal Douthit • Public bodies cannot use email to discuss and deliberate Fund, named after OCOG’s founding board chairman, and in an effort to exclude other board members and end-run maintained to cover the expenses for legal work. requirements of Ohio’s open meetings law. OCOG supported Donations to OCOG can be mailed to the address a school board member who didn’t like what he saw. (White above. You can also submit donations online at v. Olentangy School District) www.ohioopengov.com.

Join OCOG

ny non-Ohio Newspapers Foundation member may submit an application for OCOG membership to the OCOG trustees Afor approval. Membership includes use of the OCOG hotline through the OCOG retainer to Baker & Hostetler and two issues of the OCOG newsletter. The cost of OCOG dues varies with the membership category the applicant falls under. The categories and dues prices are as follows:

Attorneys and Corporate Members...... $70 Non-Profit Organizations...... $50 Individual Membership...... $35 College & University Students...... $25 High School Students...... $10

To download the OCOG application form, please go to www.ohioopengov.com.