Ohio Coalition for Open Government OPEN GOVERNMENT REPORT

Summer 2016 • Published by The Ohio Newspapers Foundation

Open-government advocates feeling better about Ohio By Jonathan Peters

Here comes the sun, Here comes the sun, and I say, It’s all right.

George Harrison could have written those words about Ohio in recent weeks, as a pair of legal developments have called attention to freedom-of-information issues in the Buckeye State and promise to make state and local government more open. As one of my friends in the legal world there put it, “Not sure who flipped the switch, but it feels like Sunshine Week … right now.” Senate President Keith Faber (R-Celina, left) looks on with Dennis Hetzel of the Ohio First, Ohio Senate President Keith Faber, Newspaper Association as Governor John Kasich signs Senate Bill 321, which provides an a Republican, introduced a bill last week empowering citizens to challenge public-record expedited appeals process to any individual who has had a public records request denied by a public office at the state, county and local levels. (see feeling good about Ohio, page 3)

Police camera footage must be disclosed Inside This Issue By Jack Greiner For OCOG’s extended coverage of police Dennis Hetzel with positive news on body cameras, see pages 4 to 7 public records appeals & open meetings I had the unusual experience recently of ...... 2 arguing two cases before the Ohio Supreme the footage to the public or the press. Special coverage of police body Court back to back. The cases involved the In a 2001 case called State ex rel Beacon cameras and open records public record status of police cameras. The first Journal v. Maurer, the Ohio Supreme Court ...... 4 case involved an Ohio Highway Patrol dash decided that an initial incident report detailing board camera that captured the pursuit and the initial interaction between the police and Federal court rules against media in apprehension of a motorist who was ultimately public related to some occurrence is not an mugshot case charged with a number of offenses ranging investigatory record. The Court ordered the ...... 8 from a missing license plate to possessing an report – which contained detailed written A $611,375 lesson on open meetings illegal firearm. narratives provided by four different police ...... 10 The second case involved a missing officers — produced upon request, without license plate as well. In that case, a University redaction. Why openness is important in of Cincinnati Police Officer, wearing a body Another way of phrasing the question before meetings and officials camera, pulled a driver over because the car the court was whether the Maurer decision ...... 11 was missing a license plate. That encounter would apply to the footage in the two cases. Ohio’s universities balk at providing escalated and the police officer shot and killed To the extent the reports set forth the events open records the driver. from that interaction, they are no different from ...... 13 The issue before the court was whether the the footage. One reflects the observations footage in both cases could be classified as of police on the scene; the other reflects the Ohio Roundup, pages 14-18 a “Confidential Law Enforcement Investigatory observations captured by a camera. National News, page 19 Record.” If so, the police and prosecutors would have no obligation to provide a copy of (see police camera footage page 4) OCOG Open Government Report Summer 2016 Issue Yes, we have positive news on public Ohio Coalition for Open Government records appeals and open meetings By Dennis Hetzel, OCOG President

1335 Dublin Rd., Suite 216-B A new law on open records appeals and an impactful Ohio Columbus, Ohio 43215 Supreme Court decisions on open meetings are two big, positive Phone: (614) 486-6677 highlights of the past few months in the Buckeye State. Gov. Kasich has signed Senate Bill 321, sponsored and quickly OCOG TRUSTEES pushed through the Legislature by Senate President Keith Faber, to create a quick, low-cost process to appeal denials of public records’ Monica Nieporte (Chair) requests had. We now join the majority of states that have some The Messenger type of statutory process that allows a citizen to easily appeal a Athens denial without having to hire a lawyer and go to court. For a $25 filing fee, you will be able to appeal through the Hetzel Monica Dias Ohio Court of Claims, and you should get a decision in less than two months. A special Frost Brown Todd master of that court will attempt mediation. If that fails, a binding ruling will still issue unless Cincinnati the issues are so novel that the court decides to punt to the normal process of litigation. Our hope and belief is that this should resolve many routine disputes and also pressure some Ken Douthit agencies to respond faster. Both sides still have the option of appealing these decisions. Douthit Communications The bill had extensive, bipartisan support. Rules and other information should Sandusky become available in the next few months, and we will keep OCOG members informed. The bill became kind of a “Christmas tree” for other public records issues. For Edward Esposito example, we had no issue with an amendment that will make it easier for private Rubber City Radio Group colleges to obey the recent Ohio Supreme Court decision that activities by sworn and Akron commissioned police officers are public records. That’s a good thing. To their credit, both the House and Senate agreed to our amendment to correct Bill Southern a drafting problem that would have made it harder for the courts to even consider The Blade awarding attorney fees. Toledo However, some changes were problematic. The House Republicans added language that makes it harder to prove that the courts should award attorney fees to George Rodrigue citizens in public records cases. This was wrong and really unfair, particularly because The Plain Dealer the government still has full rights to argue that the citizen was a frivolous litigator and Cleveland should have to pay the government’s legal fees. So, here’s what we have: The courts can consider awarding fees more often Catherine Turcer now, but it got harder than necessary to actually receive them. Yes, it sounds like a Common Cause Ohio “Seinfeld” episode. (From the classic “Reservation” episode in which Jerry reserves Columbus a car, only no car is available: “See, you know how to take the reservation, you just don’t know how to HOLD the reservation and that’s really the most important part of PRESIDENT the reservation, the holding.”) This must be addressed and corrected. Dennis Hetzel The attorney fee language in the bill started as an effort to correct a problem. For Ohio Newspaper Association about two years, the Ohio Newspaper Association had been seeking a legislative Columbus solution to an Ohio Supreme Court decision in a case, DiFranco v. South Euclid, in which the court made it impossible to collect attorney fees – even if you’re right – unless COUNSEL there is a formal court order requiring the release of records. This meant governmental David Marburger bodies could delay, delay, delay until the last minute, knowing their liability was limited. Baker & Hostetler Meanwhile, the Ohio Supreme Court ruled 5-2 that a majority of the Olentangy Cleveland School Board, located just north of Columbus, used email improperly as a substitute for what they should have been deliberating and deciding in a public meeting. NEWSLETTER EDITOR OCOG did a friend-of-the-court brief supporting the school board member who filed suit Jason Sanford in the case, ably written by Cleveland attorney Dave Marburger. ONA, the Ohio Association Ohio Newspaper Association of Broadcasters, Common Cause and the League of Women Voters supported the amicus. Columbus It’s an important ruling. However, government officials shouldn’t freak out about this case – which already is happening in some corners. They should read the ruling to Follow OCOG news online at understand the lengths to which the Olentangy school board went to dodge their obligation. www.ohioopengov.com. No one should have a problem with elected officials being able to casually exchange emails and collect information. What the board majority did was exclude This newsletter is published twice the one member they didn’t like and use email to deliberate the issue and decide in yearly for the Ohio Coalition for Open private. Only much later did they ratify their action in a public meeting, which to me is Government. OCOG is a 501(c)3 non- a sign they knew they goofed. profit organization affiliated with the It ought to be illegal to do this via email just as it’s illegal for boards to make Ohio Newspapers Foundation. decisions in executive sessions. (This is clearly the case in many other states.)The Supreme Court correctly concluded that their actions became a meeting under Ohio 2 OCOG Open Government Report Summer 2016 Issue law and sent the case back to the lower allows domestic violence victims to records of “call-to-duty” military orders court for more consideration. establish addresses that are kept out that are in personnel files of public Not only that, the board’s attorney also of public records to protect them from employees. This seems unneeded tried to argue that it was all OK, because abusers. ONA worked to narrow the for several reasons. Backers agreed the matter they were discussing wasn’t language so that the overall results to a “sunset provision” that eventually public business. Thankfully the court of the program remain open. would make these orders public. rejected that absurd proposition as well. • SB 227 has a number of changes Here is a list of what happened with Sampler of open government bills sought by Attorney General Mike some other bills of interest to OCOG that may see action this fall DeWine. It includes a good new members: • HB 407 requires police to have written, provision requiring training of public public policies on the use of body-worn officials on the open meetings laws as Bills that became law cameras but doesn’t specify what well as open records. Another provision • Executive sessions: HB 413 made a should be in those policies. I predict expands “personal information” exempt minor change in executive session you will see a lot of activity on this from records disclosure to include bank exceptions to allow townships to complicated issue in 2017. The ONA account and credit card information. discuss the sale of some property other has developed specific positions on than real estate. Actions and eventual body camera legislation that we would Dennis Hetzel is executive director sales still must occur in public. be happy to share. Just email me at of the Ohio Newspaper Association • Domestic violence: HB 359 had [email protected]. and president of OCOG. Send email to ONA-supported language that • HB 423 creates a new exemption on [email protected].

Open-government advocates feeling good about Ohio Continued from page 1 that it would make “it quick, cheap and prohibited the board from engaging in a easy for Ohioans to get a court order to private prearranged discussion via email denials without the need for a lawyer by produce denied records.” Dennis Hetzel, regarding public business. paying $25 for the Ohio Court of Claims executive director of the Ohio Newspaper The court held that “all meetings of to resolve the dispute. (Editor’s note: Association, called the bill “a terrific piece of any public body are declared to be public This bill was signed into law on June legislation that is going to open up access meetings open to the public at all times,” 28.) One of its judges would do so after a and information for all Ohio citizens.” and that “the distinction between serial special master mediated the dispute and in-person communications and serial issued a recommendation. Faber told The Court rules that email thread can electronic communications via e-mail Columbus Dispatch that he expects the violate open meetings law … is a distinction without a difference entire process, from start to finish, would because discussion of public bodies are take no more than 45 days. (Alternatively, The other ray of sunshine came by way to be conducted in a public forum.” The citizens could still file a traditional lawsuit.) of the Ohio Supreme Court, which ruled court also said it would “subvert[] the The program would likely replace (May 3) that the state open meetings law purpose of the act” to permit government others operated by the Ohio Auditor and forbids private prearranged discussion agencies privately to discuss public the Ohio Attorney General. I discussed by the majority of a public body’s business by email. them a year ago when the auditor, Dave members regardless of the discussion’s The Ohio Coalition for Open Yost, a Republican and a former reporter format—face to face, telephone, video, Government, Common Cause Ohio, and for the long-defunct Columbus Citizen- email, text, tweet, or “or other form of the League of Women Voters of Ohio filed a Journal, announced that his office would communication.” joint amicus brief supporting White’s appeal start taking complaints about public- By a 5-2 vote, the court ruled that to the state supreme court. Authored by records violations by state agencies. a former school board member, Adam David Marburger, the Cleveland lawyer once The Republican-controlled legislature White, could sue his old board for violating depicted in a New York Times dramatization, tried unsuccessfully to kill the program, the state open meetings law. White sued the brief argued that “the Sunshine Law’s arguing that it wasn’t the auditor’s role to the Olentangy Local School District Board democracy-sustaining purpose cannot monitor public-records law. Eventually, the of Education after its president initiated survive if a quorum of a public body can legislature blinked and Yost went ahead an email exchange with other members retreat to their email inboxes” to evade with his program, called Sunshine Audits. about the board’s public response scrutiny and accountability. Meanwhile, the attorney general’s to a Dispatch editorial. The editorial The court agreed, and here comes program offers a free mediation commended White for voting against the sun, indeed. service as an alternative to litigation. a policy requiring all communications Its shortcoming, though, is that it among members and staff to go through Editor’s note: For an example of how this accepts only complaints involving local the district superintendent or treasurer. email decision is already affecting open government agencies, because the The board president asked the other government cases, see the Reynoldsburg attorney general’s office acts as legal members, except White, to work with the school board brief on page 15. counsel to state agencies. superintendent and his staff to prepare a Yost and the attorney general, Mike response to the editorial. They did so in an Jonathan Peters is a member of the DeWine, support Faber’s bill—and so does email exchange, again excluding White, Ohio State Bar Association Media-Law Ohio Chief Justice Maureen O’Connor. who sued the board six months later, Committee. Originally published in the The Dispatch, among others, published alleging that it violated the Ohio open Columbia Journalism Review. Reprinted an editorial applauding the bill and saying meetings law—on the theory that the law with permission. 3 OCOG Open Government Report Summer 2016 Issue

Extended Coverage of Police Body Cameras and Open Records Police camera footage must be disclosed

Continued from page 1 doesn’t take an extraordinary imagination to think of the potential mischief that could result John C. Greiner But to the extent the question is from this scenario. Imagine an Ohio town that is a partner with phrased in that fashion, a related question is less than friendly to outsiders, especially Graydon Head in is: what is the meaning of Maurer? And outsiders with dark skin. Now imagine the Cincinnati.He why did the court find that the record of police in that town routinely pull drivers of practices in the the initial interaction between the police color over and hassle them. The message is areas of First and the public be available for immediate clear: “you’re not welcome here.” Of course, Amendment law and unedited public consumption? if the police prepare incident reports of these and commercial The answer is that the manner in which interactions, there would be no mention of litigation. Greiner the police conduct the initial interaction with hassling, and no indication of the driver’s the public speaks volumes about the police’s race. All we’d see is a sanitized account in To learn more about Graydon Head, relationship with the citizenry and dictates scrubbed language. But if the police in those visit www.graydonhead.com. the level of respect citizens will have for the encounters were wearing body cameras, police. Are police courteous and professional we’d see what the drivers looked like. We’d in their dealings with the public or dismissive hear the officer’s tone. We’d observe body Web site for anyone to see. And I have no and confrontational? Do police mete out language. And as a result, a much more problem with that. I am proud of the work I equal treatment in those encounters? Are accurate picture would emerge. do and happy to represent my clients to the certain citizens afforded better treatment? But that accurate picture wouldn’t best of my ability. The world is welcome to Do police use excessive force or take necessarily emerge if the footage were watch. And I suspect 99.9% of police – the unnecessary risks in their interactions with deemed “investigatory.” The police could ones who do their job professionally and the public? Footage of those interactions will hold it as long as they felt like it. In the courteously – feel the same way about video answer all of those questions. example I mentioned above, the driver capturing their performance. The rank and And those initial interactions – even the would be an “uncharged suspect” and file police – who are unburdened by political ones at issue in the cases before the court that would allow the footage (and all the ambition – aren’t the ones working to shut out – are not inherently criminal investigations. footage like it) to be withheld forever. the public. That effort comes from a higher A car proceeding down the street with a Which begs the question, how would pay grade. missing license plate could be doing so the press and the public discover and Disclosure leads to closure. Non- for any number of reasons – but that fact expose the wrongdoing? disclosure leads to chaos. In the cities alone does not make the driver a criminal. And the concern is hardly hypothetical. where riots followed police involved deaths And so too the initial stop – which occurs We saw last year in Chicago the extreme – Ferguson and Baltimore – there was no to initially determine the existing facts – lengths to which the city and its mayor video of the precipitating incident. In the did the plate fall off in route; is it in the car; went to withhold the footage of the cities where police involved deaths did not is there some honest mistake – does not Laquan McDonald shooting. The footage lead to riots – Cleveland, New York and constitute a criminal investigation. conveniently remained under wraps until North Charleston, South Carolina – the If in the course of the initial interaction after the mayoral election. Few people public was able to see the video of the event. the facts suggest a further investigation consider that a coincidence. And it Neither of those examples is a coincidence. is needed, then those subsequent steps illustrates how the “investigatory record” The Ohio Supreme Court got it right in may fall under CLEIR, but the initial exception can be misused to hide truth. 2001 with the Maurer decision. The Court interaction and any record of it does not. When I argued the cases a camera has a chance now to reiterate the point – the That makes perfect sense. Because recorded the argument and live streamed record of the initial interaction between the if the entire interaction is “investigatory” the it to the World Wide Web. That footage police and the public is not an investigation. footage may never see the light of day. And it is available in the Ohio Supreme Court’s And that includes the video record. Bill would make body camera footage public with limits From The Cincinnati Enquirer number. The video could be released with be released to the public only if a suspect those people or information edited out. was convicted or pleaded guilty. A Republican lawmaker wants most That means footage, like that taken of Antani’s goal was to protect the body-worn camera footage to be open to a former University of Cincinnati officer privacy of residents in their own the public with a few privacy exceptions. fatally shooting Sam DuBose last year, homes while satisfying public records The bill, introduced by Rep. Niraj would be available for review even if a advocates seeking transparency in police Antani, R-Miamisburg, would require suspect is not charged or convicted of a interactions. The proposal would let police to release camera footage taken crime, Antani said. counties decide how long video must be on public property upon request unless it Footage shot in private homes and stored, but it must be kept for at least one showed a child, victim of sexual assault or the private portions of businesses, like year. personal information like a Social Security back rooms and storage facilities, would 4 OCOG Open Government Report Summer 2016 Issue Ohio Supreme Court to decide if police dashcams and bodycams are public records

From The Cincinnati Enquirer Attorneys for both sides presented Douglas said Deters held the footage 30-minute long oral arguments before the because the grand jury was convening Media organizations and the public court on (June 14). Here’s what they said. and he wanted to avoid “substantial should have immediate access to police grumblings” in the community seen dashboard and body camera footage, What did the Enquirer’s attorneys in Ferguson, Missouri, and Baltimore, an attorney for the Cincinnati Enquirer say? Maryland, after black men were killed argued before the Ohio Supreme Court there by police officers. on (June 14). Jack Greiner, the Enquirer’s attorney “The tape gets released and it goes on The newspaper sued law enforcement made two major points before the court: Facebook faster than the 6 o’clock news officials over two instances where police- and it’s there forever,” Douglas said. recorded video footage was not publicly • the videos are records that initiate the He said four of the six media released until after an indictment or guilty investigation. organizations who sued Deters never plea. • body-camera video and an officer- requested the video from his office. The court’s decision could have wide- generated incident report, considered Douglas said the University of Cincinnati ranging implications as more police a public record, are the same record, and the city should have been sued, not officers wear body cameras and video of just in different mediums. the prosecutor. encounters with police go viral. In the highway patrol case, Assistant The newspaper argues police “A record of initial interaction between Ohio Attorney General Jeff Clark said the dashboard and body camera videos are police and public is a public record subject videos documented a moving crime scene public records that initiate investigations, to production in unredacted form, on and were part of a criminal investigation. similar to 911 calls. Law enforcement demand,” Greiner said. officials argue the videos were part of Greiner relied heavily on a 2001 Ohio What happens next? police investigations and were properly Supreme Court case that said police held until the investigations were incident reports are public records not The court can take several months to complete. exempt under the law. In that case, a man issue its opinion. called 911 from a cemetery and said he The Enquirer filed two lawsuits was waiting for police to come and kill him. After a four-hour standoff, the man 1. In January 2015 the Enquirer pointed a gun at officers and an officer requested dashboard video shot and killed him. automatically recorded when a state Justice Paul E. Pfeifer said that case highway patrol officer turned her was different because no crime had been lights on to pursue a high-speed committed when police arrived and the chase on I-71. incident report began. “If that’s the best case you’ve got, The Ohio Department of Public you don’t have a very good case in my Safety denied the request, saying the opinion,” Pfeifer said. video fell under the public records The justices questioned Greiner about exemption for confidential law what point an investigation begins -- when ONA body enforcement investigation records. the police officer turns on her lights, The Enquirer filed suit March 9, 2015, automatically turning on the dash-cam? camera paper and highway patrol released the When the officer approaches a driver videos May 1, 2015. missing a front license plate? The Ohio Newspaper Association They also questioned the Enquirer’s has released the discussion paper 2. In the second case, the Enquirer and suit given that the newspaper received “Police Body Cameras – An FOI other media organizations sought the video requested. Greiner said it wasn’t Battled Headed to Ohio,” which body-camera video from the July about how much time it took to get the is now available for download. 2015 shooting of Cincinnati resident video but whether the video qualifies for To access the paper, go to Samuel DuBose by a University of the exemption. http://ohionews.org/aws/ONA/ Cincinnati police officer. asset_manager/get_file/105972 What did attorneys representing law Hamilton County Prosecutor Joe enforcement say? For more about the discussion Deters withheld the video out of paper, see the Fall 2015 concern for the officer’s right to a fair Attorney Andrew Douglas, a former issue of the OCOG Open trial. Six media organizations sued Supreme Court justice, said the Government Report, available the state, and two days later, the investigation begins when the officer turns at www.ohioopengov.com/open- officer was indicted and the video on the body camera. government-report/. was released -- eight days after it was first requested. 5 OCOG Open Government Report Summer 2016 Issue

Extended Coverage of Police Body Cameras and Open Records Tracking which Ohio police departments use or are considering the use of body cameras

By Renee Gooch, the publication has had with turnaround vacation and other scheduling issues that Ohio Newspaper Association time in receiving footage from the cameras. probably added one week to turnaround “Our initial request was denied as time.” In the wake of recent use-of-force ‘overly broad’,” Desrosiers said. “Further However, according to Desrosiers, local instances by police officers nationally refinement led to us receiving the records chiefs in his region of Ohio seem willing to and statewide, the use of police-worn we requested. The total length of time was discuss their standpoints on the matter. body cameras has become a hot topic about a month, which was partly due to of debate between the media and law enforcement concerning open government regulation laws. Although the use of the cameras is Police departments already Police departments considering the quickly skyrocketing throughout Ohio, using body cameras use of body cameras there is still no state-wide law requiring the Cambridge Police Department Warren City Police Department use of these devices. In addition, there is no state-wide list of which departments Hubbard Township Police Department North Canton Police Department use, or are considering using, body Canton Police Department Plain Township Police Department cameras. Alliance Police Department Louisville Police Department The Ohio Newspaper Association sent a survey to Ohio newspaper editors asking Hartville Police Department Gallipolis City Police Department them which departments in their region use New Richmond Police Department Northfield Village Police Department body cameras and their experiences when Sandusky Police Department Beavercreek Police Department making open record requests for the videos. Results showed over 64 percent of Toledo Police Department Columbus Police Department respondents having departments and Sylvania Police Department West Chester Police Department offices in their region of Ohio who use police-worn body cameras, while 47 percent Waterville Police Department Dayton Police Department noted the departments in their region had Sagamore Hills Police Department Hancock County Sheriff Office cameras on order or under research. Crestline Police Department Stark County Sheriff Office In addition, over half of the newspaper editors who have filed an open records Chillicothe Police Department Gallia County Sheriff Office request for a body camera video have Xenia Police Department Summit County Sheriff Office either had problems receiving the footage in its entirety or a timely manner, according University of Cincinnati Police to the survey. Department Washington County Sheriff Office “We have been forced to file numerous Cleveland Police Department Columbus Police Department FOIA requests to view body camera Ada Village Police Department footage,” said Rob Todor, the executive editor at the Alliance Review. “Local Ohio State University Police authorities – police departments, city Department law director, defense counsel – have no Marietta Police Department authoritative knowledge of FOIA rulings.” Note: If any law enforcement When the Alliance Review made Cincinnati Police Department agencies in Ohio which either use body cameras or are considing a FOIA request for a body camera Erie County Sheriff Office using body cameras are not on video, Todor explained the city law Guernsey County Sheriff Office this list, email that information to directors were seemingly unsure of OCOG President Dennis Hetzel at the law. In addition, the lawyer for the Lucas County Sheriff Office [email protected]. defendant wanted to bar the publication Wood County Sheriff Office from viewing the video and the police department deleted some of the video. Ross County Sheriff Office

“They said it took too much memory,” Clark County Sheriff Office he said. Rich Desrosiers, the executive editor Williams County Sheriff Office at the Canton Repository, stated problems

6 OCOG Open Government Report Summer 2016 Issue

Editorial: Relinquish bodycam videos

Editorial from The Columbus Dispatch

Pressure on police departments to It would be far better for the legislature The point of using bodycams is to adopt the use of body cameras continues, to act now, while the use of bodycams is in increase transparency and accountability but even as more departments adopt the its infancy, to explicitly affirm in state law for police in order to build public trust. If technology, the rules governing its use and that bodycam videos are public records. police withhold bodycam video or erect access to the video it records remain very In October, the Ohio Newspaper hurdles to access, these purposes are uncertain.But at present, police officials Association, the Ohio Association of defeated. The recent civil unrest growing across the state are free to write their Broadcasters and the Associated Press out of police shootings shows where that own bodycam policies, and even though published an outline of what is needed. leads. legal precedent dictates that such videos The media agencies called for legislation are public records, some departments that explicitly declares bodycam video to have imposed new and unacceptable be a public record and that establishes exceptions to openness. uniform statewide openness standards For example, the Cincinnati Police for all police agencies. In cases where Department’s draft policy says that video portions of a video qualify as exempt from of a police shooting is an open record, but open-records law, the video should be video of a DUI stop can be released only redacted, not withheld entirely, and in the with the consent of the county prosecutor. event that new exemptions are deemed Hamilton County Prosecutor Joe necessary, they should be tailored as Deters already is locked in a legal battle narrowly as possible. The proposal with the Cincinnati Enquirer and other also calls for the law to provide citizens local media over the fatal shooting of a means to petition a court for release, an unarmed motorist by a University ideally without having to hire a lawyer and of Cincinnati police officer in July. file a lawsuit. Finally, the proposal calls for Immediately after the shooting, Deters permanent logs of archived recordings refused to release video of the incident, that can be searched easily. claiming it was an investigatory record, one of the exceptions to the open- records law. He released the video only after deciding to press charges against the officer. The matter is now before the Ohio Supreme Court. The Enquirer and Receive Ohio open government legislative its allies argue that bodycam video is no watch list with OCOG membership different in essence than 911 calls and police incident reports, both of which are Interested in open government issues public records. in Ohio? Then you should know that Meanwhile, House Bill 407 awaits joining the Ohio Coalition of Open action in the General Assembly. The Government as a member has a bill sponsored by State Reps. Cheryl new benefit: The OCOG Legislative Grossman, R-Grove City, and Kevin Watch List. Boyce, D-Columbus, would require any The OCOG Legislative Watch List police department that uses bodycams tracks pending legislation in the Ohio to adopt a written policy about how they General Assembly which may have an will be used and to train officers to comply with the policy. impact on state open government issues. While requiring a written policy is a The watchlist provides a synopsis on the valuable step, it does nothing to ensure current status of open government bills, including the pros and cons of the proposed public access to the videos, nor does it legislation. require any uniformity in policies from one The watch list will not take specific positions on pending legislation but will alert department to the next. OCOG members to legislation which could improve or harm Ohio’s sunshine laws. Leaving the issue to be litigated case by The watchlist will be continually updated during the legislative year. case in the courts also is an unsatisfactory To join OCOG and receive the OCOG legislative watchlist, see the membership outcome, first because it is agonizingly information on the back cover of this issue of the Open Government Report. You can slow and expensive, and because the also go to www.ohioopengov.com for more information and to apply. result could very well be a murky hodge- And don’t forget that OCOG’s website at www.ohioopengov.com is continually podge of decisions that require even more updated with news and information about Ohio open government issues. litigation to clarify.

7 OCOG Open Government Report Summer 2016 Issue

Open Government Editorials and Commentary Federal court rules against media in mugshot case

By Dennis Hetzel, OCOG President shared this in an email: decision is how much the justices were “The only good news was that the swayed by the influence of the Internet The Sixth Circuit U.S. Court of Appeals court decided to adopt a case-by-case and social media, which was not a factor in Cincinnati has left only a tiny crack in approach in evaluating whether the when the FOIA was created of course. the door to obtain booking photographs federal government has the authority Consider this quote from the ruling: “In of people accused of federal crimes. to withhold booking photos from public 1996, this court could not have known or In a 9-7 decision, the court upheld view – as opposed to ruling that booking expected that a booking photo could haunt rulings in other federal courts that the photos are categorically outside the the depicted individual for decades.” U.S. Marshals Service has correctly public right of access under FOIA. The justices specifically mentioned interpreted the Freedom of Information “You might recall that our amicus the “mugshot sites” that charge those Act by saying that the FOIA’s restrictions brief urged the Court not to adopt the arrested to have their photos removed on release if the subject has a strong government’s argument that booking and the reality that these photos do privacy interest outweighs the public’s photos are categorically private, although not “go away” as they did years ago right to see the booking photos. the Court’s opinion doesn’t mention us when they showed up one day in the The Sixth Circuit, which covers Ohio, in declining to rule that booking photos newspaper or for a fleeting moment on a Kentucky, Tennessee and Michigan, was are always (categorically) outside the TV newscast. the last federal court circuit in which these public’s right of access.” As we all know, the Internet continues photos could be obtained. The Detroit Free Note that this only affects federal to change everything it touches. For those Press led a media coalition to retain that cases, not state ones, although the of us who believe in open government right after the marshals refused to release decision gives aid and comfort to those and responsible journalism, we will have mugshots of indicted police officers. who would ban access to these photos to be increasingly nimble to resist these Our Ohio Coalition for Open in state courts. Also, since the marshals arguments. On the legislative front, we’ll Government was one of the groups filing are likely to always say “no” when asked continue to be faced with legislators and briefs in the case, with financial support for photos, your only recourse will be voters who want to “do something” about from open government groups in Michigan, a lengthy FOIA process and eventual bad online actors, the viciousness of Tennessee and Kentucky as well as the litigation. As a practical matter, the court many anonymous commenters and the Ohio Association of Broadcasters. has slammed the door shut. pervasiveness of the Web. OCOG attorney Dave Marburger What is most striking to me in the Get on the transparency train Editorial from The Beacon Journal public will find value in such things as the outweighed by the public benefit. ease in tracking expenditures and making For his part, the treasurer is advancing Josh Mandel has been a politician in a comparisons among local governments. something that features little but upsides. big hurry. Shortly after winning the office of The city of Stow was the first local entity He rightly has talked about the logic of Ohio treasurer, he jumped into the race for in Summit County to join OhioCheckbook. JobsOhio, the privatized arm of state the U.S. Senate, appearing overmatched Next came New Franklin. The roster economic development, taking part. Yet by the quest and losing to Sherrod Brown. now includes the cities of Tallmadge, he must take care not to lose his way, as He since has won re-election, and now, as Cuyahoga Falls and Barberton. All told, he is prone to do, because of opportunism. treasurer, is applying his impatience in a 435 local governments (out of nearly As the Dayton Daily News reported, more constructive fashion. 3,300) have committed. On that list are the treasurer was slow to start cajoling Mandel has been pressing for local the city schools and the county and charter schools. He now has invited them governments to follow state offices and city governments in some of the state’s to post their data. In the spirit of following participate in OhioCheckbook.com, a largest urban areas, Cincinnati, Toledo, the public money, he would do well to website put together by the treasurer’s Dayton, Columbus and Youngstown. push for-profit charter school operators to office and designed to allow Ohioans The Akron Public Schools, the city do the same. Mandel may see cover in a to follow in detail public spending by of Akron and Summit County are not recent Ohio Supreme Court ruling. Yet the government entities. The site is a valuable participants. They should get on board justices cited the failings of lawmakers, not contribution, adding new dimensions early in the new year. a clear legal principle about public money of transparency and accountability. As Mandel has won the commitment of all somehow turning into private funds. Mandel readily notes, Ohio not long five state pension systems (four last week). How about this amount of transparency, ago ranked among the least transparent The treasurer has in mind state universities Mandel having received big campaign states, and now, with this new tool, it is joining next. The pension funds were the money from for-profit charter operators? one of the most transparent. target of Mandel jawing in public. That The treasurer wants the public to have Part of what makes the site effective pressure is fair play. If some worry about the a greater chance of seeing how its money is the Google-like search mechanism. It is miscasting of data for partisan advantage, is spent. He could not be more right. simple, intuitive and comprehensive. The they have a point. Yet such costs are far 8 OCOG Open Government Report Summer 2016 Issue

State checkbook is a key to government openness

Editor’s note: The state of Ohio has to build, initially detailed more than their tax dollars are being spent. now launched a second “checkbook” $400 billion in state spending from 2008 On Dec. 2, Mandel returned to the website. For more information, see brief on – and featured more than 4 billion Mahoning Valley to announce online item on page 14. pieces of distinct spending information. partnerships with Youngstown and The response from the public was Mathews school districts and Austintown, Editorial from The Vindicator phenomenal, especially when it came Howland, Liberty, Milton and Bazetta to taxpayers perusing the payrolls of townships. It’s a mantra Ohioans have heard departments and agencies. In Mahoning, Trumbull and many times, but from our vantage point it That reaction from Ohioans prompted Columbiana counties, there are a total never gets old: “I believe taxpayers have Mandel to expand the transparency of 32 public entities that have joined the the right to know how their tax dollars are push to include local governments movement. being spent.” and school districts. Thus today, the That said, the absence of Youngstown Those are the words Ohio Treasurer checkbook contains more than $500 and Warren city governments from the Josh Mandel uses in making his pitch to billion in public spending. list is noteworthy and troubling. local governments and school districts First among all counties The outreach across the state began in for their participation in OhioCheckbook. In April, the treasurer came April when Mandel sent a letter to 18,062 com, the transparency initiative he to Youngstown to announce that local government and school officials launched a year ago. Mahoning County government would urging them to place their checkbook To date, almost 400 of the 3,962 be the first county operation to put its level data on OhioCheckbook.com. public entities have committed to join the checkbook online via the state system. There have been almost 400,000 movement that holds officeholders and Commissioners Anthony Traficanti, Carol searches on the site, which goes to show others accountable to the taxpayers. Rimedio-Righetti and David Ditzler, that Ohioans are hungry for unfiltered The ultimate goal is to have the Auditor Ralph Meacham and others information. financial transactions of every city, county, joined Mandel at the news conference. Given this heightened public interest, township, school district, library district “What you’re going to see is dominoes we urge the Ohio Senate to follow the lead and others online so Ohioans can access fall all across the state because of the of the Ohio House and pass House Bill the information with a click of the mouse. leadership from counties like Mahoning 46, which ensures that the transparency It was last December that Mandel County,” he said. initiative will survive long after Mandel unveiled OhioCheckbook.com, an easily Trumbull County government has leaves the treasurer’s office. Sponsors searchable website that featured state followed suit. of the bill recently testified before the revenue and expenses dating back to 2008. Mandel’s announcement was music to Senate Finance Committee, and we are “I believe taxpayers have a right to our ears because we have long demanded confident the legislation will be reported know how their tax money is being spent, openness and accountability from local out without delay. and I’m doing this to empower the people governments and school systems. The Republican leadership should to hold politicians and bureaucrats Despite the straightforwardness of Ohio’s quickly schedule a floor vote so Ohioans accountable,” the state treasurer said at public records and open meetings laws, can rest assured that they will have easy the time. “I subscribe to the notion that there still are those in the public sector access to the financial transactions of sunlight is the greatest disinfectant to who drag their feet when information is state and local governments, school government waste.” sought by the press and public. districts and other public entities. The online checkbook, which took The online checkbook is a godsend two years to complete and cost $814,000 for citizens interested in monitoring how

Records denials block agency’s oversight

By Darrel Rowland, Columbus Dispatch to that used when state officials want to The same response came when the keep the general public in the dark. committee asked for any action plans Those of us who fight public records For instance, the department to fix problems pointed out in earlier battles were struck by how the Ohio denied use-of-force records until the inspection reports. Department of Rehabilitation and investigation was complete — a dubious Still, one of the all-time take-the- Correction started messing with the rationale to hide information from the cake responses came when the panel Correctional Institution Inspection public, much less the group charged asked for any positive points that prison Committee, which has the statutory with investigating such things. officials wanted in the report. duty of, well, inspecting correctional Corrections officials wouldn’t even They declined, saying the request institutions. convert information kept by fiscal year also was too “vague, ambiguous.” After years of few problems, into calendar year. That probably Reporters Alan Johnson and Randy conforms with the letter of the law, but Ludlow discovered that last fall the state really? agency started denying even routine A request for “cost-savings initiatives” records requests with language similar was deemed too vague to answer. 9 OCOG Open Government Report Summer 2016 Issue

Open Government Editorials and Commentary A $611,375 lesson on open meetings in Putnam County

Editorial from The Lima News • The commissioners didn’t have a they can be used. They’re not just a tool to written rule with a general policy exclude the public when things get tense. Anything worth doing is worth doing regarding meeting notices. Residents of Putnam County should be right. It’s a million dollar piece of advice, • The county didn’t properly notify each equally frustrated, though. This $611,375 or at least $611,375 — and counting — for landowner about the meetings. payout is a sizable chunk of money that the Putnam County commissioners. • The county didn’t keep full and could be better spent securing the county, A visiting judge recently ordered Putnam accurate minutes of the meetings. paving the county’s roads or investing in County must pay $611,375 worth of legal • The commissioners improperly better systems for county agencies. Instead, fees in the ongoing Road 5 case. Back in entered executive sessions on Feb. this money — your money as a taxpayer — 2012, the commissioners decided to use 16, 2012, and April 5, 2012. will line the pockets of lawyers. eminent domain to grab 10 feet on either • The commissioners also didn’t have Sure, the commissioners could decide side of Road 5 between Pandora and minutes from meetings with the in a public meeting Tuesday to appeal. Leipsic, making a stretch of 11.2 miles 24 county prosecutor Feb. 21, 2012, or They’ll likely lose that too, since they’re feet wide instead of its previous 20 feet. July 12, 2012. in an indefensible position. They ignored Some landowners along the path the laws, and now they’ll have to pay the objected, saying they didn’t want the The testimony of one commissioner penalty, with your taxpayer dollars. extra truck traffic that would come with during a hearing March 30 showed the The cash register is still cha-chinging the wider road. judge the commissioners just didn’t on this mistake, too. About half a dozen Unfortunately, the commissioners didn’t understand Sunshine Law well enough. property owners still haven’t been paid for follow the Ohio’s laws to the letter and And that’s sad in Putnam County, where all their property, although money has been intent of the law. They skipped a few steps three sitting commissioners have been re- set aside in escrow for what the county along the way, and the 3rd District Court of elected at least once. It’s especially sad in believes it will pay those landowners who Appeals ruled in 2014 the commissioners Putnam County, which had to pay $5,000 in didn’t accept the county’s original offers. violated Ohio’s Sunshine Laws. “Ignorance damages and $31,399.74 in attorney fees It’s too late to return Road 5 to its appears to have been bliss with this board,” in 2013 for 17 violations of Ohio’s Sunshine previous condition, as the appellate court Visiting Judge Dale Crawford, of Franklin Laws involving the board of elections, noted, it would be a “tremendous waste of County, wrote in his ruling. including eight illegal executive sessions. public resources.” So what exactly did Putnam County get Obviously we have a stake in the game Public officials everywhere need to read for this $611,375 payout? More accurately, when it comes to governments operating in the Sunshine Laws carefully to understand it’s what the public didn’t get. The rules an open and fair way. It’s our job to tell you what they can and can’t do. Those laws are included $500 fines for each of the 13 what’s happening, and we just can’t do that in there for everyone’s protection. Yes, they can times the commissioners skipped proper closed-door meetings with no minutes kept. make government a bit slow and tedious, procedures involving public meetings: Executive sessions have limitations on how but that’s by design to make sure you’re not making another $611,375 mistake. Court’s decision favors sunshine Editorial from The Columbus Dispatch one director resigned and both were the superintendent, and several other required to repay the district. members of the district staff conferred (In early May) the Ohio Supreme Court Unhappy with White’s action, four of about and composed the letter entirely via issued a crucial ruling to ensure public his colleagues approved a policy requiring email, leaving White out of the process. access to the discussions and decisions of board members to seek permission of the He filed a lawsuit alleging that this was an governmental bodies such as school boards, district superintendent or treasurer before illegal meeting of the board that violated city councils and the like. Had the ruling gone communicating with other district staff Ohio’s Open Meetings law. Apparently the other way, Ohio’s elected officials would members. Shortly thereafter, The Dispatch rattled, White’s colleagues held a public have had a virtual carte blanche to conduct published an editorial criticizing the board vote to retroactively ratify the letter to the public business in secret. for putting a leash on board members, editor and to deny that they had violated In White vs. King, the court ruled that saying that board members “ought to be Ohio’s open-meetings laws, actions that email discussions conducted by a majority free to seek out firsthand knowledge of how indicated nervousness, if not outright guilt. of the Olentangy Board of Education their district is performing. Boards would be But two lower courts ruled against constituted an illegal private meeting better advised to make free communication White, arguing that conducting business to discuss public business and take a the policy, and then deal as needed with any by email did not constitute a “meeting” decision on action. problems that might arise.” under state law. Last week, a solid 5-2 The case dates to 2012, when White’s colleagues decided to send majority of the Supreme Court reversed school-board member Adam White an official board response as a letter the lower courts, finding that the email independently investigated two district to the editor. But they did not discuss consultations and decision were indeed athletic directors and found that they had this and make a decision in a public made improper expenditures. As a result, meeting, as required by law. Instead, they, (see decision favors sunshine page 11) 10 OCOG Open Government Report Summer 2016 Issue Why openness is important in meetings and officials

By Reuben Mees, Bellefontaine Examiner So that leaves it up to lawyers to could have at least given their lawyer a decide what will be done. week to make a recommendation. Trust. In the case at Rushsylvania, the Watching the elected officials filing out If a public body and its officials want village’s lawyer is new to the job and was of the room was shameful — heads hung citizens to trust them with their hard- not equipped with a ready answer. She low when they realized the reporter sitting earned tax dollars, the safety of their asked for up to a week to look into the outside the whole time had caught them families and general health and well-being legal issue. Council begrudgingly granted in the act. of the community, they have to be open. that week reprieve. If I were a vindictive person, I might People want to know how their money The law does say, however, that request that a court impose a $500 fine is being spent and why. executive sessions are only an option. on the Rushsylvania Village Council for And they want — no, they deserve — Barring situations where federal law violation of the open meetings law, but that to know who is spending that money and prohibits release of certain information, a serves no purpose other than to waste the making the decisions that impact their public body is always allowed to discuss hard-earned money of the Rushsylvania families, homes and daily lives. an issue in public, which is referred to as taxpayer whose interests I try to protect. The State of Ohio has a set of laws erring on the side of openness. Instead, I’ll let this be a warning that in place called the Ohio Sunshine Laws The nice thing about erring on the side the public does care what happens behind that are intended to protect Ohioans’ of openness is that it can very rarely get closed doors — even in small towns like right to know what is happening in their a public body into trouble. An error on the Rushsylvania. government. side of secrecy, however, can warrant a (In early February) a small village in $500 fine and other penalties. Logan County flaunted those laws. The only reason the Rushsylvania Specifically, the Rushsylvania Village Village Council had for going into Decision favors Council wanted to go into executive executive session on who would be the sunshine session to discuss which of two next council member was to iron out how respectable village residents to appoint to they were going to vote before they did so. Continued from page 10 a vacancy on council. It was clear both candidates appeared I, as a news reporter for the qualified for the job, had submitted a meeting. The high court ordered Bellefontaine Examiner and as an resumes for the position and had the trial court to reconsider the case Ohioan who advocates for openness in addressed council briefly. What council consistent with this ruling. government, objected to the executive members wanted was a chance to gauge Had the Supreme Court affirmed session on the principle that it involved how the other members would vote and the rulings of the lower courts, the naming one of the people who make laws. cast their own votes accordingly. And that result would have been dire for the While the Ohio Sunshine Laws are a smacks of everything the open meetings right of the public to monitor the very valuable tool to protect Ohio citizens’ law is intended to guard against. actions of government. As attorney right to know, they are not perfect and are So after granting their lawyer a reprieve David Marburger wrote in a friend- often subject to legal reviews. There are to look into the issue, council was facing a of-the-court brief, had the lower- hundreds, if not thousands, of attorney week in which they could have gone behind court rulings been allowed to stand, general opinions and court decisions the back of the law and gauged each all public bodies would be free to do levied on the various issues involving other’s opinions in one-on-one encounters what the Olentangy school board did. open meetings and public records. — also a no-no in open government. “Public bodies, by design are There is one area in particular that But the leaders of Rushsylvania didn’t policymakers,” he wrote. “If they can I have yet to see a clear and concise even have the decency to do that. deliberate and decide issues via opinion on, however. Instead, they adjourned their meeting email, then later go through the sham That is whether a public body has a and nervously hovered about the table exercise of ‘ratifying’ those earlier right to enter into executive session to as I intentionally stalled for one or more decisions, then the Sunshine Law is, name a person to its own ranks. That is, them to leave. They continued to hover as a practical matter, a dead letter…” can an elected official discuss in secret about their chairs. It was clear they Marburger is right, and the what would otherwise be decided by wanted me — the only representative of importance of this ruling by the court voters in an open election. the public at the meeting — to leave the can’t be overstated. It is possible The law is clear that a public body room and leave them alone. that much public business already is cannot remove a fellow elected official So, I did leave, but I intentionally left being conducted by elected officials from office in a secret meeting. the door open on my way out. No sooner via email, phone, text and other So, my belief in the spirit of the law is that had I crossed the threshold of the room forms of communication. If so, those they should not be installed in secrecy either. and the door slid shut. I didn’t even have officials now are on notice that this Various lawyers have agreed or to leave the foyer (for want of a better is illegal. And those who suspect this disagreed with my opinion on the matter, word) before the illegal meeting began. I is happening and want to bring it to but I have yet to see case law clearly pulled up a spot on a five-gallon bucket light now have the law on their side. spelling it out. and listened as they proceeded to discuss White, the Olentangy school-board The argument hinges on whether an the very thing they agreed not to. member who brought this lawsuit, not elected official is an employee of the public It was appalling, to say the least … a only has served his school district agency. My opinion is that they are not slap in the face to everything that open well, he has benefited all Ohioans. employees but they are the public entity itself. government is supposed to protect. They 11 OCOG Open Government Report Summer 2016 Issue

Open Government Coverage from Ohio Newspapers Sunshine in Schools: Here are the public records you can request from your school

By Kelli Young, Canton Repository sanctions for failing to provide access. • Financial documents such as budgets, Ohio Student Records Privacy Act: monthly and yearly statements, School districts process hundreds of Found in the Ohio Revised Code (section financial forecasts, expense reports, documents each school day, many of 3319.321), the law restricts the release of payment vouchers and invoices. them with information that drives officials’ student records for people who are not the • Forms and applications, such as decisions about how to educate Stark student’s parents. employee hiring documents. County’s children. Individuals with Disabilities Education • Employee performance evaluations, Much of that information, especially if the Act: IDEA provides additional privacy including the superintendent’s annual school is funded by taxpayer money, is open protections beyond FERPA for students evaluation. to you, the public. And if you’re a parent, you who are receiving special education and • Employee travel expense forms. have access to even more information. related services. It applies to all students • Internal investigative records, such as “The general rule is everything that is with disabilities, including those who are when a school investigates a complaint documented in the public office is a public placed in or referred to a private school against an employee. record unless there is an exception where or facility by a public agency and to those • Personnel files. Information such as some federal or state law protects it,” said receiving special education and related Social Security Numbers, workers’ Columbus attorney Mark A. Weiker of Albeit services from a public agency. compensation documents and medical Weiker, who specializes education law and records will be excluded or redacted advocates for students and parents EXAMPLES OF SCHOOL RECORDS from the release. Weiker, who previously served as OPEN TO EVERYONE • Policies established by the school defense counsel to traditional public board, such as the district’s rules schools in Ohio, encourages parents of • Contracts awarded to a business or on what’s considered tardy and an children under age 18 to review their child’s individual for the purchase of a service unexcused absence, its dress code school file at least once a year. By doing or item. and its disciplinary procedure (often so, parents can determine whether any • Directory information of students, such available online through the school information in their child’s file is inaccurate, as the type of information that may district’s website). misleading, incomplete or in violation of their be contained in a school yearbook or • Roster of employees. child’s rights. Parents also can then seek to athletic event program. School districts • Salary information of personnel, correct the information or, at least, attach a designate what they consider directory including teachers, staff, athletic note to the file stating their objections to the information and must give parents the directors, principals, administrators, information they believe is incorrect. option of opting out of the disclosure. treasurer and the superintendent. “A lot of parents do that with discipline For the Canton City School District, • School board agendas, meeting records,” Weiker said. “They can’t get the public directory information includes minutes (both in a draft and final form) discipline changed, but they can place their student’s name, address, telephone and board resolutions. own statement in there.” number, birth date, place of birth, • Test results by grade level, school He said most of the school districts participation in officially recognized building or district. Report cards for have been responsive to his public records activities and sports, achievement each school and each school district requests. awards or honors, weight and height also are available online through the of athletic team members, major field Ohio Department of Education. THE LAWS of study, dates of enrollment and date of graduation. Unlike with most EXAMPLES OF RECORDS OPEN TO Ohio’s Public Records and Open other public records requests, school PARENTS Meetings laws: Collectively known as district officials can ask the person (Applies to parents of children under the “Sunshine laws,” they are found in the requesting the information about how age of 18.) Ohio Revised Code (sections 149.43 and the information is intended to be used 121.22) and give Ohioans broad access to as state law prevents the release of the • All the previously mentioned records public school and government records and directory information for use in a profit- that are available to the public. meetings, except in defined situations. making plan or activity. • Your child’s cumulative file, which Family Educational Rights and Privacy • Emails to and from school employees contains his or her personal Act of 1974: FERPA applies to all school that pertain to school business. Records identification data, possible academic districts, including some private schools, in employee private email accounts achievements, teacher reports, report that receive federal funds under programs used to conduct public business also cards, immunization records and administered by the U.S. Department of are subject to disclosure. disciplinary records. Education. The law requires that parents • Employee contracts for teachers, • Your child’s discipline file, if applicable. have access to their child’s education athletic coaches, custodians, Some schools may maintain a separate records, and districts could face penalties or bus drivers, administrators, the file regarding discipline issues. superintendent and more. (see here are the public records page 13) 12 OCOG Open Government Report Summer 2016 Issue

Ohio’s public universities often balk at providing public records

By Will Drabold and Danielle Keeton- denied or obstructed a request for that transparency in how colleges handle sexual Olson for The Columbus Dispatch record. assault, the fact that university employees At Ohio State University, an auditor was … are incorrectly citing (FERPA) to conceal Nearly half of employees at Ohio’s asked why he was making “such an unusual violent crimes is simply inexcusable,” said public universities who were asked to request” for the violent-crime records and Frank LoMonte, executive director of the provide public records failed to follow state was told later that the office would see Student Press Law Center, a Washington, law, according to results of a public-records whether the record “could be released.” D.C.-based nonprofit. audit conducted by student journalists. “The results show that state university “These laws need real teeth and real In January, student journalists across officials have some work to do to ensure consequences for noncompliance.” Ohio requested the same five public records they readily comply with open-records Some legal experts also questioned at 12 of Ohio’s 14 public universities. They laws,” said Dennis Hetzel, president of the the trend toward directing auditors to asked front-desk employees for records Ohio Coalition for Open Government and legal offices. and did not identify themselves. State executive director of the Ohio Newspaper “(That) seems inefficient, and frankly law does not require those who request Association. “I was particularly distressed can be rather intimidating to many people records to identify themselves. to see so many requests obstructed who are not trained journalists,” said Aimee Of the 60 total requests that auditors by asking the requesters to identify Edmondson, an associate professor of made across the campuses, school themselves. That’s clearly against the law.” journalism at Ohio University and a media- employees followed the law for 34. The Chris Davey, a spokesman for Ohio law scholar. “I’m not sure you need a vast majority of those requests were State, said he believes the university did lawyer to fill all requests. In terms of time directed to universities’ legal offices without “fairly well” in the audit and that university management, it’s the most expensive way the employee immediately providing the officials do “everything we can to comply to comply with the law.” records, a technically legal response. with the public-records law.” He said that This audit’s results contrast with a Records were immediately provided in asking auditors to identify themselves is not 2014 audit of Ohio’s cities, counties only seven instances. “a per se violation” of the public-records law. and school districts. That project found The remaining 26 requests were denied The offices of Ohio Auditor Dave Yost roughly 90 percent compliance among or obstructed, meaning that university and Ohio Attorney General Mike DeWine, public employees. employees asked auditors to identify both of whom have units dedicated to LoMonte, Edmondson and Hetzel themselves or otherwise made it difficult to public records, declined to comment. said universities need to better train their obtain a public record. At Miami University, all requests were employees to handle public-records In violation of state law, nearly half of either obstructed or denied. At Ohio State requests. auditors were asked to identify themselves. and Ohio University, some requests were “The Ohio attorney general’s office Some were directed to legal offices after obstructed. No university provided all the has excellent training on public records,” refusing to identify themselves; others were records requested. said Hetzel, the Ohio open-government blocked from access to public records. At some universities, auditors were advocate. “These schools should assess In 2014, The Dispatch successfully told that violent-crime information could if refreshers are needed, especially at requested one record — the names of not be released under the federal Family Miami University and Cleveland State, students who committed violent crimes — Educational Rights and Privacy Act. where auditors reported all requests were from state universities. But two years later, “Given that there has been extensive obstructed.” in this audit, three-quarters of universities nationwide publicity to the need for greater Here are the public records you can request from your school Continued from page 12 evaluation, reports of independent for their personal use. evaluators, medical records, summary • Copies of emergency response plans • Your child’s compliance file, if reports from evaluation team and and other security records. applicable. A compliance file typically eligibility committee meetings and • Records protected by attorney-client applies to students with disabilities your child’s Individualized Education confidentially. and may contain records that the Program. Not all districts maintain these • Records shared during an executive school system used to demonstrate records in a single file. session of the school board. it met the timelines, notification, and • Videotape that captures information Personally identifiable information of consent regulations required by the specific to your child, such as a fight on a student that could be used to make Individuals with Disabilities Education a school bus. Exceptions apply. a student’s identity traceable. Parents Act. Not all school districts choose to and certain officials and entities as keep the records in a single file. EXAMPLES OF RECORDS EXCLUDED defined by law are exceptions. • Your child’s confidential file, if applicable. FROM RELEASE A confidential file typically applies to students with disabilities and may include • Notes by teachers, counselors and reports written as a result of the school’s school administrators that were made 13 OCOG Open Government Report Summer 2016 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 16 complaints about public entities not when a request is made,” Mr. DeWine releasing public records, Auditor Dave said in a statement. “The ‘Yellow Book’ is Yost announced (March 21). published to help requesters understand Launched last year during Sunshine their rights and for government agencies Week, the program was designed to give to understand their duties under Ohio’s citizens a way to appeal rejections of Sunshine Laws.” public record requests without having to The AG’s office also announced Public benefits from Ohio’s go through a long legal process. training sessions on public records competing budget checkbook “We didn’t have a whole lot of takers,” across the state, which are also available websites Mr. Yost said at a Statehouse news as an online video course. conference, calling the initiative’s first To download the manual, go to By Jason Sanford, year a “small but significant success.” www.ohioattorneygeneral.gov/yellowbook Ohio Newspaper Association The office investigated 16 complaints and declined to investigate one because it Information lacking on juvenile Ohio Treasurer Josh Mandel was the was too complex, he said in presenting the justice in Ohio, report says first to launch a website putting all state report on the program’s first year. The office expenditures online, with OhioCheckbook. only audits complaints that are expected to From The Columbus Dispatch com going live in 2015. But in June of this year take fewer than five work hours for staff. Gov. John Kasich’s budget office launched “While I don’t think that there’s Fewer than half of Ohio’s county its own Ohio Interactive Budget website at necessarily huge noncompliance, I know juvenile courts provided a public report www.interactivebudget.ohio.gov. that there’s more than the 17 cases that on the number and type of cases they Both sites offer detailed state budget we have here in our first year,” Mr. Yost handle, despite a state law requiring it, information, allowing the public to search said. “I would hope that folks who feel according to a nonprofit advocacy group. an interactive state budget by agency like they’ve been wrongly denied public The Juvenile Justice Coalition of Ohio or vendor to learn how taxpayer dollars records would avail themselves of the contacted the juvenile courts in all 88 are being spent. However, there are mediation process that’s in the attorney counties last year and found that fewer differences between the sites. general’s office and our compliance work than half had a publicly available report In addition to state budget information, in the Auditor’s office.” on their cases. Mandel’s site also offers budgets from For cases involving local government State law requires each juvenile court hundreds of local governments and entities, the complainants are first to prepare such a report annually and school districts across Ohio (with more required to attempt the mediation process file it no later than June with its board of being added each week). The site from through the attorney general’s office. county commissioners. Kasich’s budget office, meanwhile, details For those involving state agencies, the The Juvenile Justice Coalition’s report state revenue, the level at which money complaints start with the auditor’s office. calls the lack of data “disturbing” and renews was initially appropriated by the General The program stirred some controversy the group’s recommendation for Ohio to Assembly, and any later changes to those when it was introduced last year. Some implement a comprehensive, statewide appropriations. The site also breaks down legislators said they didn’t believe the state juvenile-justice data collection system. where the state’s money came from, such auditor had the authority to look at public “We’re spending millions of dollars – as from the sales tax or federal grants. records compliance, and inserted language we don’t even know how many million – There has been disagreement between into the budget bill (HB 64) to try to stop the on juvenile justice without knowing if we’re Kasich and Mandel’s offices over who should program. The language was later removed. getting what we’re paying for,” said Erin release this budget information to the public Davies, the coalition’s executive director. through an easy-to-use website. However, despite these disagreements there is one DeWine releases new Open big winner in this competition to release state Records Manual Coroner, attorney general refuse budget information: The citizens of Ohio. to release final autopsies in Pike From Gongwer County killings

Yost: First year of Sunshine Attorney General Mike DeWine also From The Columbus Dispatch Audit Program a ‘small but marked Sunshine Week by releasing significant success’ the 2016 edition of his office’s manual Pike County authorities and Ohio regarding public records laws, commonly Attorney General Mike DeWine refused From Gongwer known as the “Yellow Book.” Tuesday to release the final autopsy reports “A substantial number of public records of eight Rhoden family members who were In the Sunshine Audit initiative’s first disputes arise because one of the parties shot to death in April, something which year, the state auditor’s office investigated involved is not aware of their obligations public-records experts say is a mistake. 14 OCOG Open Government Report Summer 2016 Issue

Pike County Coroner Dr. David Education deliberated at length using consumers against scams. Kessler first denied The Dispatch access email. A few times, they even discussed The new site, www.ohioprotects.org, Friday night and again on Monday, and how they would vote on major issues. will be a one-stop shop for consumers to then wrote in an email Tuesday that he “I think in hindsight, with the Supreme learn about scams, research businesses considers the autopsy reports “confidential Court saying specifically that email and file a consumer complaint. It will law enforcement investigatory records.” communication is not exempt, we also connect to the attorney general’s He wrote that their release “might impede could’ve used better judgment,” board site, but is more focused on consumer the criminal investigation or the families’ President Joe Begeny said (June 23). needs, DeWine said during a morning grieving process.” “We’ve been more judicious” about using news conference to announce the new The coroner offered no case law that email since the ruling, he said. initiative. gave him the authority to withhold the Between March and May, Begeny, The agency is using $2 million, records, but DeWine’s office later cited a Vice President Rob Truex, member money the agency has received from 1984 Ohio Supreme Court case in which Debbie Dunlap and, sometimes, member lawsuit settlements, for the initiative. the court ruled that autopsy reports in a Neal Whitman emailed each other dozens It will include three video commercials homicide investigation are confidential. of times about how long to extend a new highlighting scams and will air in all Ohio The office also cited a section of the contract with a charter school, how to markets in various mediums, including Ohio Revised Code that references a deal with a janitorial contractor that they television, online, radio and cinema ads, coroner’s exemption for records that are say was doing a poor job and what to do DeWine said. considered confidential as part of a law about potential overcrowding at a high enforcement investigation. school campus. “We believe the law says they do not Complaints of government have to be released,” DeWine said. He said fraud often kept confidential case law protects such reports for a reason. Ohio Supreme Court: Details Their release, he said, “would damage of legal work done by outside From The Columbus Dispatch our ability to solve this case. Our ability to firm for city not public record judge the veracity of information coming Ohioans who want to check out in, our ability to judge the credibility of From Ohio Court News their school district or city won’t learn information coming in, all goes away much from a fraud-complaint database once that is public.” When attorney-fee billing statements maintained by Auditor Dave Yost. Dispatch Editor Alan D. Miller with detailed information about the tasks Since lawmakers mandated the list disagrees. “While we respect what undertaken by a law firm representing a – and limited, specified information – be the authorities are saying about the city are intertwined with summaries of placed online in 2012, the auditor’s office investigation, we see no evidence that this the legal work performed, the detailed has received nearly 2,500 complaints. would be disruptive to their investigation, information is not a public record, the However, nearly 1,500 of the which at this point seems to be going Ohio Supreme Court ruled (May 17). complaints, or 59 percent, are considered nowhere. Nor have we seen examples of The Supreme Court voted 5-2 to affirm confidential by Yost’s office since they the release of such information affecting a Ninth District Court of Appeals decision involve investigations, both current and similar cases in the past,” Miller said. to release redacted copies of invoices completed. “Is it conceivable that great public from a law firm representing Avon Lake to Every complaint marked as “in knowledge could help them solve the James E. Pietrangelo II. The records are progress” or referred to another agency case? That’s possible.” connected to pending litigation between for a closer look reveals nothing about Miller said this case – and the papers Avon Lake and Pietrangelo. In a per curiam which governmental entity is involved or request for the records – is not about decision, the Court majority reasoned that the nature of the suspected wrongdoing. the media. It’s about public access to Pietrangelo may acquire information useful “While we are strong advocates information. in his litigation strategy against the city if for transparency, we also have a “We have great respect for the authorities provided more details than what the Ninth responsibility to follow state law and the work they’re doing to try and solve District permitted to be released. governing law-enforcement records and this case. We also believe the law says In a dissenting opinion, Justice Sharon protect information that must be shielded these records are public, and the attorney L. Kennedy wrote that only the narrative from disclosure,” said Ben Marrison, general and Pike County authorities don’t summary portion of the bills describing the Yost’s spokesman. get to choose what laws they follow.” work the firm did can be withheld and that The fraud-reporting program that Pietrangelo is entitled to more information allows tips to be submitted online or as well as damages from Avon Lake. through phone calls and emails has led Reynoldsburg school board to millions of dollars in audit findings for emails may violate law recovery, criminal convictions and civil Attorney general launches actions, he said. From The Columbus Dispatch new website, initiative to protect consumers Government bodies might be breaking Ohio’s open-meetings laws if they deliberate From The Akron Beacon Journal via email, out of view of the public. Before the issue was clarified in early Ohio Attorney General Mike DeWine May by the Ohio Supreme Court, some on (June 3) announced a new website members of the Reynoldsburg Board of and media campaign to educate 15 OCOG Open Government Report Summer 2016 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 stepfather on Father’s Day in 2012. due to additional criteria. Also receiving The Butler County Sheriff’s Office perfect scores were Michigan, Indiana released an incoming 911 call from the and Oregon. California, Alaska and day of the killing. But Gmoser denied The Idaho received “F” grades and were at Enquirer’s request for the recording of the bottom of transparency rankings. an outgoing call a 911 dispatcher made, U.S. PIRG based its ratings on saying it would affect the suspect’s right the state websites and how easy, or Ohio Wesleyan faculty to a fair trial. difficult, it is for taxpayers to get detailed meetings no longer open to Ray, who has since been convicted information on government spending. student newspaper of murder, told the dispatcher, “I’m a Ohio got high marks for adding murderer, and you need to arrest me.” municipalities, other local government From The Transcript He said he had stabbed his stepfather entities, and schools to the OhioCheckbook. after the stepfather had found Ray drinking. com website. Of the 3,962 local government After more than 35 years, faculty Gmoser later asked the judge and schools in Ohio, about 650 have signed meetings will no longer be open to assigned to the case to block the release up for the online checkbook, Mandel said reporters. of the recording, which the judge did. in a conference call this morning. On April 18, Ohio Wesleyan faculty The Ohio Supreme Court criticized members voted to disallow The Gmoser’s actions, saying it “only served Transcript, the school’s independent to saddle The Enquirer with more Ohio’s auditor gets legal OK to student newspaper, from attending future litigation and more attorney fees.” audit university foundations faculty meetings. “Those tactics,” the Supreme Court’s Bob Gitter, professor of economics opinion said, “do not demonstrate good From The Columbus Dispatch and a member of the faculty’s Executive faith by the prosecutor’s office.” Committee, presented the motion. The Enquirer sued successfully, and State Auditor Dave Yost has received Faculty asked the Executive Committee the court ruled the prosecutor must pay legal approval to perform financial to reconsider the issue of banning The $25,462.80 of taxpayers’ money for The audits of Ohio college and university Transcript’s attendance, according to the Enquirer’s attorney fees. foundations, which raise and spend faculty meeting agenda. Gmoser does not want to pay them. hundreds of millions of dollars annually. Gitter read the agenda and said, So he appealed, claiming the amount A legal opinion from state Attorney “Faculty meetings will not be open to was excessive. General Mike DeWine, dated (April 6), reporters and a new mechanism in the He lost, in a ruling handed down (in concluded that state law permits Yost form of a faculty meeting summary will early April). to audit the foundations because, even be made available to the public within 24 Now, The Enquirer is asking for more though most of them are private, nonprofit hours after the end of the faculty meeting.” money in compensation for the additional corporations, they collect money on Gitter then called for executive litigation caused by the prosecutor’s appeal. behalf of and distribute money to public session, which was supported. The vote Enquirer Attorney Jack Greiner said colleges and universities was 47-21 in favor of the motion. Gmoser’s appeal was frivolous. DeWine said in the opinion that “It has a chilling effect on what the auditor has the right to audit people are willing to say if they feel the the foundations because they are comments are going to be published in Ohio again top state for “established by the laws of this state for the newspaper,” he said. spending transparency the exercise of a function of government, and are therefore, a public office.” From The Columbus Dispatch Yost sought a legal opinion from Butler County prosecutor DeWine after encountering objections from loses in Enquirer legal fees Ohio has repeated as the top state for some state universities about whether their case – again public spending transparency, according respective university foundations are subject to an annual report today by the U.S. to review by the auditor. Youngstown State, From The Cincinnati Enquirer Public Interest Research Group. in particular, raised an objection and hired “Following the Money 2016” ranked legal counsel to oppose the auditor. Butler County Prosecutor Mike Ohio No. 1 for the second year in a row, “We decided it was best for all parties Gmoser clearly does not want to have to largely as a result of OhioCheckbook. to seek clarity from the attorney general pay attorneys who work for The Enquirer. com, the online spending database about the auditor’s ability to review But now he may have to. hosted by state Treasurer Josh Mandel. the financial operations of university The situation stems from the Ohio was one of four states to foundations,” said Ben Marrison, Yost’s case of Michael Ray, who is in prison achieve a perfect 100-point score on the communications director. in connection with the death of his U.S. PIRG report, but was ranked first Yost said in a statement: “We are 16 OCOG Open Government Report Summer 2016 Issue pleased, but not surprised, that the records department. Enquirer sues fire marshal attorney general agrees that these funds – A majority of the justices said the over fatal fire collected on behalf of universities to benefit definition of a medical record is not limited universities – are public dollars and subject to the information maintained by a hospital From The Cincinnati Enquirer to the scrutiny of state auditors.” or other healthcare provider’s medical records department. The ruling also said The Enquirer on (February 4) sued the physical location of where the data is the State Fire Marshal for withholding Democrats again target stored does not determine if the information records in its investigation into the death JobsOhio for transparency qualifies as a medical record. of a Hamilton firefighter. The ruling and related state law In refusing to release the fire From The Columbus Dispatch pertains to medical records sought by a marshal’s initial report, Assistant Ohio patient or his or her legal representative. Attorney General Hilary Damaser said in Democrats are making another run at The case is being sent back to the Stark an email investigators considered the fire reforming JobsOhio. County trial court. a non-routine criminal matter “from their A pair of House Democrats (on “It has huge ramifications for patients’ very first approach.” March 31) introduced a bill to bring Right to Know throughout Ohio and The Enquirer, in its lawsuit, called this more transparency to the operations of prevents any hospital from concealing or revelation concerning. The fire has since Republican Gov. John Kasich’s privatized artificially classifying medical records,” been ruled arson. economic development agency. said Lee Plakas of Canton, one of the “An investigator who commences the The “Ohio Jobs Guarantee” from attorneys representing the plaintiff in investigation with his mind already made Reps. Greta Johnson, of Akron, and Kent the lawsuit brought against Aultman in up is derelict in his duty,” The Enquirer Smith, of Euclid, would authorize the state 2012 in an effort to force the hospital to wrote. “The investigators’ apparent auditor to go over JobsOhio’s books and produce the complete medical record. prejudices make the need for public require the nonprofit to release more- access to the SFM Report, and resulting detailed quarterly reports on job projects scrutiny, all the more pressing.” underwritten by grants and loans. Ohio Supreme Court shields Firefighter Patrick Wolterman died The replacement for the public data on homes of kids Dec. 28 rushing into a home he believed Department of Development was with lead poisoning might have been occupied. exempted from public-records laws when it was created and Auditor Dave From The Columbus Dispatch Yost, after auditing JobsOhio once, was Ohio turns to security expert barred by Republican lawmakers from A law firm submitted too broad a records to shield lethal drug info examining its financials. request when it asked for data on residences JobsOhio, which makes its cash in the state’s biggest county where children From The Associated Press from a long-term lease of the state’s were found to have elevated levels of lead liquor-sales operation, should be open in their blood, the Ohio Supreme Court said As Ohio sought to justify its reasoning to public examination and oversight, the (February 18) in rejecting the request. for shielding the names of people or lawmakers said. “JobsOhio doesn’t have By linking the demand to specific blood- companies providing lethal drugs to the to tell us anything. That’s bad economic lead levels, Lipson O’Shea Legal Group prison system, it paid a security consultant policy and it’s just plain wrong,” Smith made it impossible for the Cuyahoga who determined that identifying the said in a statement. County Board of Health to comply without suppliers would put them at risk of “harm, identifying specific individuals, the court violence or unlawful acts of intimidation,” ruled in a unanimous decision. according to newly released documents. Ohio Supreme Court rules in “It is undeniable that the address of a But a pair of attorneys representing Aultman medical records case home where a child has an elevated blood a condemned killer says the consultant lead level can be used to identify the simply repackaged a similar threat From The Beacon Journal afflicted child,” wrote Justice Paul Pfeifer. assessment he did for Texas. The security The high court sent the case back to consultant, Lawrence Cunningham, said The Ohio Supreme Court has ruled a judge to see if any of the board’s 5,000 he couldn’t immediately identify specific that all documents Aultman Hospital pages of records could be released to threats against anyone in Ohio. But he generated in the care of a patient qualify the firm. Pfeifer also said the information said threats in other states have come as a medical record, a decision attorneys might be available if a different set of from inmates and their families. say will have statewide ramifications in documents was requested. Anti-death penalty advocates have the release of such information. At issue was Lipson O’Shea’s 2012 accused Texas and other states of hyping The state’s high court issued the ruling public records filing for documentation of threats to avoid disclosing pharmacies (March 23) in a lawsuit filed by the daughter all homes in Cuyahoga County “where a providing lethal drugs. of a patient treated at the Canton hospital minor child was found to have elevated Ohio has repeatedly delayed before he died. The case had been decided blood lead levels,” according to the court executions because it can’t obtain lethal in Stark County Common Pleas Court ruling. The request included a specific objection drugs. Twenty-five inmates are before the 5th District Court of Appeals blood-lead level amount. scheduled to die beginning early next affirmed that ruling. In a 5-2 decision, the Both a judge and an appeals court year, but the prison system still doesn’t Ohio Supreme Court reversed the appeals said state law prohibits releasing such have the necessary drugs. decision that had limited the information to records if the information could be used what was maintained by Aultman’s medical to reveal an individual’s identity. 17 OCOG Open Government Report Summer 2016 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

Springfield Schools must Consumers’ Counsel request release student data as for records denied public records From The Columbus Dispatch From Ohio Court News American Electric Power may have Springfield City Schools must release double-charged Ohio consumers for DeWine: Fetal tissue probe student contact information requested more than $120 million related to certain records not public by School Choice, a private non-profit fuel costs, but most details are being kept organization whose mission is to inform under wraps while regulators investigate, From The Telegraph-Forum students and parents about educational with no timetable for resolution. options, as long as parents have The Office of the Ohio Consumers’ Ohio Attorney General Mike DeWine’s consented to making the information Counsel has asked for greater disclosure investigators compiled more than 66,000 available, the Ohio Supreme Court ruled of records in the case, only to be denied pages of records on how Planned (July 21). this month by an administrative law Parenthood disposed of aborted fetuses Neither federal nor state law restricts judge. in a landfill. release of Springfield student “directory “AEP’s request for secrecy is a bad But you can’t look at any of them, information” for the 2013-2014 school idea for this public process examining thanks to a 1953 law that keeps year, the Court ruled. more than a hundred million dollars investigations into nonprofit agencies Writing for the Court majority, of charges to consumers,” said Dan private. Justice Judith Ann Lanzinger ruled that Doron, a spokesman for the consumer DeWine recently announced that Springfield must provide School Choice advocate’s office. Planned Parenthood’s abortion clinics the records that fall within any of the In comments made (Janurary 22), AEP in Mount Auburn and Columbus used nine categories of student information says there were no double-charges. The a third-party business, Accu Medical listed in the school district’s consent form company disagrees with an auditor and the Waste Services, to dispose of fetal for those students whose parents had consumer advocate about how to interpret tissue by heating it in an autoclave to kill signed the form. the rules for the charges in question. bacteria, then disposing of the remains in “It’s important that our customers a Kentucky landfill. It was less clear how understand that our billing and our cost the third Planned Parenthood abortion Auditor decides not to definitions are based on the actual costs clinic near Cleveland disposes of aborted investigate Huber Heights of running and operating the system, fetuses. records complaint and we are very careful that those costs The details were part of a several- are only what we incur to serve those month investigation into whether Planned From The Dayton Daily News customers,” said Pablo Vegas, president Parenthood sold fetal tissue in Ohio. The and chief operating officer of AEP Ohio. probe was prompted by videos, which Ohio Auditor Dave Yost’s office will The Public Utilities Commission of Ohio Planned Parenthood officials say were not investigate a public records dispute ordered an audit in 2014 to make sure heavily edited, that purport to show within Huber Heights city government. AEP was correctly accounting for several abortion providers selling fetal tissue. A letter from the auditor’s office charges that get passed to consumers. DeWine’s investigation found no proof to Huber Heights Law Director Alan Such an audit is routine, but this one is that tissue was sold in Ohio. Schaeffer notes the agency believes the notable because several outside groups (In December) Gannett Ohio and The issues are “resolved at this time” and had raised concerns that AEP got Enquirer asked for copies of that 66,000- considers “the matter closed.” reimbursed for the same expenses twice in plus page investigation, which includes Councilmen Richard Shaw and Glenn a period that runs from 2013 to 2015. financial records and interviews with Otto were accused (in June) by Councilman Planned Parenthood officials. Outraged Ed Lyons of improperly removing lawmakers are using the findings as one public records from city facilities. Lyons basis for new legislation to require that shepherded through council a motion to fetal remains be buried or cremated. ask Yost to investigate the incident. But the records aren’t public because Shaw and Otto have long said the of a little-used law from 1953 that prohibits documents they removed – including four DeWine from releasing any investigation boxes worth – were copies and that no compiled by his charitable law section, laws were broken. Nor, they said, were which looks into nonprofit organizations they involved in one page of minutes like Planned Parenthood. from a 2008 meeting disappearing. 18 OCOG Open Government Report Summer 2016 Issue

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

by creating a single FOIA portal for agencies A three-judge panel from the 6th to receive requests and build additional U.S. Circuit Court of Appeals makes that National public-friendly tools, and requires agencies statement in a ruling affirming a man’s to report on their FOIA track record each 2014 sentencing on cocaine distribution- year in time for Sunshine Week. related charges. While upholding the sentences, the News judges sent the case back to U.S. district Knight, Columbia commit $60 court in Akron to address its order on million to launch digital-era allowing public access to the defendant’s First Amendment center plea agreement. The opinion written by Judge Richard From The Columbia Journalism Allen Griffin stated that the public has Review a constitutional right to access plea agreements, and that they “play a central The Knight Foundation and Columbia role in our criminal justice system.” He University (on May 17) announced the wrote that courts need to show that creation of a new center that will use closure is essential for higher values and research, education, and litigation to is narrowly tailored. Media coalition celebrates advance First Amendment rights in the President Obama signing digital age. An independent 501(c)(3) of FOIA reforms into law as nonprofit organization, the Knight First In the battle over public FOIA turns 50 on July 4 Amendment Institute at Columbia University notices, Hispanics, minorities is backed by $60 million in funding—and it stand to lose most From the NAA is launching at a time of growing concern about the First Amendment’s application to From The National Association of President Barack Obama’s signature on new technologies. Hispanic Publications the FOIA Improvement Act of 2016 marks Knight and Columbia will contribute a high point in the half century history of the $5 million each in operating funds and Legal and public notices placed by federal Freedom of Information Act. $25 million each in endowment funds, government agencies have served as “We are pleased to mark the 50th according to a press release announcing income generators since the advent of anniversary of the signing of the original the effort. The institute will use the funds newspapers, but large federal entities like Freedom of Information Act with a to work on court cases that present the Department of Environmental Protection stronger FOIA,” said Rick Blum, director opportunities to define—or redefine—free- Agency and state and local governments of the Sunshine in Government Initiative, expression principles, with an emphasis in places like Illinois, Arizona and small a coalition of media associations that has on digitally oriented cases. The plan Maryland counties want to stop putting the strongly supported efforts by Congress to also calls for research, publications, and notices in newspapers, instead places them make federal agencies implement FOIA events to educate the legal community on on agency-controlled web pages. as Congress intended a half century ago. emerging First Amendment issues. While newspapers who carry a “We thank President Obama for signing There’s no hard timeline for the institute’s household name like the Los Angeles the legislation into law.” opening, but a search is ongoing for a Times or Washington Post might be “FOIA is the most effective oversight director, said Lee C. Bollinger, president losing circulation and government tool available to the public, including of Columbia University. The institute is agencies may argue they are losing their journalists. Over the last 50 years, expected to take shape in the coming year, reach, the biggest losers in the battle to FOIA has helped improve public safety, with a board that will include faculty from keep public notices could be newspapers save taxpayer dollars, and expose Columbia’s law and journalism schools and whose circulations are actually growing malfeasance or just plain bad decisions. people from outside the university. and whose influence is greatest of all. Strengthening FOIA and limiting the “We’ve come to expect big declines government’s ability to abuse or plain every time circulation numbers for ignore it is a fitting birthday present to Federal appeals court in Ohio newspapers are released. So, it’s a shock the American people as we celebrate the says plea agreements should to see one area where they are growing: Fourth of July and FOIA’s 50th birthday.” be open Hispanic weekly newspapers,” authors of The new law ends the ability of agencies a recent Pew Research Center study said. to withhold deliberations otherwise not From The Akron Beacon Journal It is these newspapers, in general, protected under FOIA after 25 years, who have been able to reach countless writes clearly into law the presumption A Cincinnati-based federal appeals Hispanic residents with legal and public of disclosure, strengthens the FOIA court says plea agreements should be notices even as many municipalities Ombudsman so the office can assert itself open records under the First Amendment overlook minority-owned publications with the independence that Congress unless there is some overriding interest when placing notices, Media Life noted. intended, makes FOIA more public-friendly in closing them. 19 Ohio Coalition for Open Government

1335 Dublin Road, Suite 216-B, Columbus, Ohio 43215 Tel. (614) 486-6677 • Fax (614) 486-4940

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 Newspapers Foundation in June 1992. The Coalition The annual memberships to OCOG, as approved by is operated for charitable and educational purposes by the board, entitle a group or individual the use of the FOI conducting and supporting activities to benefit those who telephone hotline, handled directly by attorneys at Baker & seek compliance with public access laws. It is also affiliated Hostetler in Cleveland, and subscription to the newsletter. with a national network of similar state coalitions. OCOG is funded by contributions from The Ohio The Coalition serves as a clearinghouse for media and Newspapers Foundation and other outside sources. citizen grievances that involve open meetings and open Its seven-member board includes public trustees from records, and offers guidance to reporters in local government organizations with an interest in freedom of information. For situations. The activities of the Coalition include monitoring board members, please see the masthead on page 2.

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COG represents a broad coalition of not only media people was charging thousands of dollars to provide a CD with public Obut also everyday citizens who support the cause of open records. OCOG has also supported a number of other open government in Ohio through various means, including regular government cases in the last two years. newsletters. OCOG sometimes is asked to do more. In 2011, Donations to OCOG can be mailed to the address for example, OCOG underwrote a “friend-of-the-court brief” to above. You can also submit donations online at support an appeal in an Ohio case in which a government office www.ohioopengov.com.

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he OCOG Open Government Report newsletter is emailed Ttwice yearly. To be placed on the distribution list, send your email address to Jason Sanford, Manager of Communications and Content at the Ohio Newspaper Association, at [email protected]. You can also access continually updated OCOG information on the orgranization’s website at www.ohioopengov.com. If you have news or information relevant to OCOG, please email it to Jason Sanford at [email protected].

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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:

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