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Ohio Sunshine Laws 2008: an Open Government Resource Manual

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Ohio Sunshine Laws 2008: an Open Government Resource Manual Your comments and suggestions are welcomed and encouraged. Please address correspondence to: Ohio Attorney General, Marc Dann Constitutional Offices Section Public Records Unit 30 E Broad St., 16th Fl. Columbus, Ohio 43215 (877)AG4-OHIO or (614) 466-2872 www.ag.state.oh.us or Ohio Auditor of State, Mary Taylor, CPA Open Government Unit Legal Division 88 E. Broad Street, 5th Fl. Columbus, Ohio 43215 (800) 282-0370 or (614) 466-4514 www.auditor.state.oh.us Please visit our websites to download a copy of this manual. You may also obtain a CD or hard copy version of this manual by contacting our offices via the addresses and phone numbers listed above. Special thanks to all members of the Attorney General’s Office and the Auditor of State’s Office, both past and present, whose contributions made this publication possible, with special recognition to our authors/editors of this edition: Lauren Lubow Robin L. McGuire Rose Principal Assistant Attorney General Director of the Open Government Unit Patricia E. Doyle Trisha Balthaser Paralegal Paralegal Page 2 Auditor of State Mary Taylor, CPA · Ohio Attorney General, Marc Dann Ohio Sunshine Laws 2008: An Open Government Resource Manual TABLE OF CONTENTS Chapter I: Introduction ........................................................................................5 Glossary ....................................................................................................................6 Frequently Asked Questions.....................................................................................8 Basic Legal Principles.............................................................................................10 Chapter II: The Open Meetings Act .................................................................11 “Public Body” Defined ...........................................................................................12 “Meeting” Defined..................................................................................................16 A Public Body’s Duties...........................................................................................20 The Public’s Rights.................................................................................................24 Executive Sessions (Exception to Openness) .........................................................25 Permissible Reasons for Executive Sessions ..........................................................26 Proper Procedure for Executive Sessions ...............................................................29 Executive Session Restrictions ...............................................................................30 Remedies.................................................................................................................31 Chapter III: The Public Records Act................................................................35 A Public Office’s Duties.........................................................................................36 The Requester’s Rights ...........................................................................................41 “Public Record” Defined ........................................................................................42 The Request for Records.........................................................................................47 Exceptions to Disclosure, General Principles.........................................................51 The Catch-all Exception..........................................................................................54 The HIPAA Exception............................................................................................57 The Copyright Exception? ......................................................................................60 The Medical Records Exception.............................................................................62 The Trial Preparation Records Exception...............................................................64 The Residential and Familial Information Exception.............................................66 The Law Enforcement Investigations Exception....................................................68 The Infrastructure and Security Records Exception ...............................................74 Other Records .........................................................................................................75 Remedies.................................................................................................................78 Common Issues.......................................................................................................81 Appendix A: Open Government Statutes Records Management sections............................................................................. A-1 Open Meetings sections ................................................................................... ..A-11 Public Records sections ..................................................................................... A-17 Personal Information Systems Act..................................................................... A-34 Appendix B: Exceptions to the Public Records Act “Catch-all” Exceptions..........................................................................................B-1 Auditor of State Mary Taylor, CPA · Ohio Attorney General, Marc Dann Page 3 Ohio Sunshine Laws 2008: An Open Government Resource Manual Appendix C: Ohio Attorney General Opinions Opinions Interpreting the Open Meetings Act......................................................C-1 Appendix D: Ohio Attorney General Opinions Opinions Interpreting the Public Records Act..................................................... D-1 Appendix E: Records Management, Contact Information Records Management and Archival Procedures...................................................E-1 Appendix F: Electronic Records Committee Electronic Records Committee .............................................................................F-1 Page 4 Auditor of State Mary Taylor, CPA · Ohio Attorney General, Marc Dann Ohio Sunshine Laws 2008: An Open Government Resource Manual Ohio’s Sunshine Laws Chapter I: Introduction "The liberties of a people never were, nor ever will be, secure, when the transactions of their rulers may be concealed from them. ...To cover with the veil of secrecy the common routine of business, is an abomination in the eyes of every intelligent man." Patrick Henry As you begin to study Ohio’s Sunshine Laws, you may find it beneficial to first tackle some fundamental matters that will provide you with a foundation for your research. In Chapter I, a glossary will acquaint you with various legal terms associated with the Sunshine Laws. Next, we furnish you with quick answers to some of the most frequently asked questions about open government, which questions are discussed more completely later in the manual. Finally, we provide you with an overview of the basic legal principles that apply to both the Open Meetings Act and the Public Records Act. In Chapter II, we detail matters associated with the Open Meetings Act, while Chapter III is dedicated to the Public Records Act. We hope you will find this manual to be a useful resource. Auditor of State Mary Taylor, CPA · Ohio Attorney General, Marc Dann Page 5 Ohio Sunshine Laws 2008: An Open Government Resource Manual Glossary In learning about our Open Government Laws, you will confront some legal terms that may be unfamiliar to you. Below are the more common terms you will encounter in this area of the law. CHARTER. A charter is an instrument established by the citizens of a municipality, which is roughly equivalent to a state’s constitution. A charter outlines certain rights, responsibilities, liberties, or powers that exist in the municipality. DECLARATORY JUDGMENT. A declaratory judgment is a legal action initiated when a party is uncertain of their legal rights in a particular controversy. For instance, if a public office withholds records from public records disclosure because it believes they are exempt from disclosure,1 the office can file a declaratory judgment action to test the correctness of its decision.2 DISCOVERY. Discovery is a pre-trial practice by which parties to a lawsuit, civil or criminal, disclose to each other documents and other information in an effort to avoid any surprises at trial. The practice serves the dual purpose of permitting parties to be well-prepared for trial and enabling them to evaluate the strengths and weaknesses of their case. IN CAMERA. In camera means “in private.” A judge will often review records that are at issue in a public records dispute in camera to ensure that they are not subject to public scrutiny in case the judge ultimately concludes that the records are not subject to public disclosure. INJUNCTION. An injunction is a court order commanding or preventing a person from acting in a certain way. For instance, a person who believes a public body has violated the Open Meetings Act will file a complaint seeking injunctive relief. The court may then issue an order enjoining the public body from further violations of the act and requiring it to correct any damage caused by past violations. LITIGATION. The term litigation refers to the process of carrying on a lawsuit – i.e., a legal action and all the proceedings associated with it. MANDAMUS. The term means literally “we command.” In this area of law, it is typically used to refer to the legal action that a party files when they believe they
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