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 have been wrongfully denied access to public records. The full name of the action is a petition for a writ of mandamus – if the party filing the action prevails, the court will issue a writ (or order) commanding the public office to release the records in dispute.

1 See, “Exceptions to Disclosure: The Catch-all Exception,” page 54. 2 Safety 4th Fireworks v. Ohio Dept. of Commerce, 2003 Ohio 3477, P10, 2003 Ohio App. LEXIS 3145 (7th Dist. June 26, 2003); State ex rel. Fisher v. PRC Pub. Sector, 99 Ohio App. 3d 387 (10th Dist. 1994).

Page 6 Auditor of State Mary Taylor, CPA · Ohio Attorney General, Marc Dann Ohio Sunshine Laws 2008: An Open Government Resource Manual

PRO SE. The term pro se means “for oneself,” and is typically used to refer to a person who represents themselves in court, acting as their own legal counsel.

REDACT. Generally, to redact is to edit or revise. In the context of public records law, “redacting” refers to the action by which non-public information is blacked out of an otherwise public record before public disclosure.3 For example, social security numbers are always redacted from public records before those records may be viewed by the public.

3 Ohio Rev. Code Ann. §149.43(A)(11).

Auditor of State Mary Taylor, CPA · Ohio Attorney General, Marc Dann Page 7 Ohio Sunshine Laws 2008: An Open Government Resource Manual  Frequently Asked Questions

Can a public body’s motion for executive session just say “for personnel”? No. The open meetings law plainly requires a public body to specify the particular reason or reasons listed in the “personnel exception” for which the executive session is being called.4

Do I have to pay for copies of public records? Most likely. The public records law permits a public office to charge its actual cost to duplicate a public record.5

What is required for notice of a regular meeting to be proper under the Open Meetings Act? By law, a public body must have a rule in place by which a person can determine the time and place of all regular meetings.6

Can the police redact from the public record the name of a juvenile they arrested? No. A suspect’s identity is not confidential simply by virtue of the suspect’s age – i.e., just because the suspect is a juvenile does not entitle the suspect to anonymity.7

What are the permissible reasons for a public body to go into executive session? Generally, to discuss various personnel issues, the purchase or sale of public property, to discuss with legal counsel pending or imminent court action, to conduct or discuss collective bargaining matters, for various matters required to be kept confidential by law, to discuss security matters, and to discuss county hospitals’ trade secrets.8 Veterans Service Commissions may also hold executive sessions for matters related to an applicant’s request for financial assistance.9

Where can I find the salaries of my public officials? The salaries of some public officials are set by statute,10 while others are set by the public entity itself. If the salary is not set by statute, always contact the government employer to determine the salary in question.

4 See, “Proper Procedure – The Motion,” page 29. 5 See, “Cost of Copies,” page 38. 6 See generally, “Duties: Notice,” page 20. 7 See generally, “Juvenile Records,” page 88. 8 See generally, “Executive Session: Permissible Reasons,” page 26. 9 Ohio Rev. Code Ann. §121.22 (J). 10 See, e.g., Ohio Rev. Code Ann. § 141.01 (statewide elected officials), § 101.27 (general assembly members), § 505.24 (township trustees), § 507.09 (township clerks), § 325.10 (county commissioners), §325.01 (county elected officials).

Page 8 Auditor of State Mary Taylor, CPA · Ohio Attorney General, Marc Dann Ohio Sunshine Laws 2008: An Open Government Resource Manual Are the home addresses of public employees considered “public records?” Not always. The Ohio Supreme Court has concluded that the home addresses of public employees may not be “public records that a public office is required to release.”11 See page 66 for a more detailed discussion.

Can a court redact my social security number from its public records before disclosure? Yes. The Ohio Supreme Court recently concluded that redacting SSNs from a court’s public records is appropriate before disclosure.12

Can a public office use an outside contractor to copy records for a public records request? Perhaps. If the reasons for the outsourcing are reasonable, and the cost differential is also reasonable, a court is likely to find that such an arrangement is permissible.13

Does HIPAA mean that the public can no longer receive general patient information? No. A public office does not violate HIPAA by sharing information that constitutes “directory information,” such as the patient’s name, location in the facility, and a description of the patient’s general condition.14

11 State ex rel. Dispatch Printing Co. v. Johnson, 106 Ohio St. 3d 160, 2005-Ohio-4384 (2005). See generally, “Personal Privacy: Public Employees,” page 83. 12 State ex rel. Office of Montgomery County Public Defender v. Siroki, 108 Ohio St. 3d 206, 2006-Ohio-662 (2006). 13 See, “Making the Copies: Outside Contractors,” page 40. 14 See, “HIPAA – Releasing PHI to the Media,” page 58.

Auditor of State Mary Taylor, CPA · Ohio Attorney General, Marc Dann Page 9 Ohio Sunshine Laws 2008: An Open Government Resource Manual

 Basic Legal Principles

When a local charter provision conflicts with the open government laws, which prevails? A charter municipality has the right to determine by charter the manner in which meetings will be held.15 Ohio is a home rule state, which means that when the local law and the state open government laws conflict, the local law prevails.16

Does the federal Freedom of Information Act (FOIA) control state or local governmental agencies or officers? No. The federal FOIA does not apply to state or local agencies or officers.17 A request for government records from a state or local agency in Ohio is governed by Ohio’s Public Records Act, which is codified in Ohio Rev. Code § 149.43. But, if you request records from a federal office that is located in Ohio, your request will be governed by the federal FOIA.

How long must a public office keep its records? As long as required by its records retention schedules, without which a public office may not transfer or destroy ANY record.18 A retention schedule must be approved by an appropriate records commission, as well as by the Auditor of State’s Office and the Ohio Historical Society.19

15 State ex rel. Bond v. City of Montgomery, 63 Ohio App.3d 728, 580 N.E.2d 38 (1st Dist. 1989); Hill & Dales, Inc. v. Wooster, 4 Ohio App.3d 240, 448 N.E.2d 163 (9th Dist. 1982). 16 Ohio Constitution, Article XVIII, Sections 3 and 7. See, also State ex rel. Inskeep v. Staten, 74 Ohio St.3d 676, 660 N.E.2d 1207 (1996); State ex rel. Fenley v. Kyger, 72 Ohio St.3d 164, 648 N.E.2d 493 (1995); State ex rel Lightfield v. Village of Indian Hill, 69 Ohio St.3d 441, 633 N.E.2d 524 (1994); State ex rel. Fairfield Leader v. Ricketts, 56 Ohio St.3d 97, 564 N.E.2d 486 (1990); State ex rel. Craft v. Schisler, 40 Ohio St.3d 149, 532 N.E.2d 719 (1988); Fox v. City of Lakewood, 39 Ohio St.3d 19, 528 N.E.2d 1254 (1988); Butler Twp. Bd. of Trustees v. Winemiller, 2003 Ohio 1258, 2003 Ohio App. LEXIS 1177, (2nd Dist. Mar. 14, 2003); State ex rel. Gannett Satellite Info. Network v. Cincinnati City Counsel, 137 Ohio App.3d 589, 739 N.E.2d 387 (1st Dist. 2000); Klaban Ford, Inc. v. City of Kent, No. 91-P-2342, 1992 Ohio App. LEXIS 1622 (11th Dist. Mar. 31, 1992); Hill & Dales, Inc. v. City of Wooster, 4 Ohio App.3d 240, 448 N.E.2d 163 (9th Dist. 1982). 17 State ex rel. Warren v. Warner, 84 Ohio St.3d 432, 704 N.E.2d 1228 (1999); State ex rel. Findlay Publ’g Co. v. Schroeder, 76 Ohio St.3d 580, 669 N.E.2d 835 (1996). 18 Ohio Rev. Code Ann. § 149.333 and § 149.351. See, e.g., 1989 Ohio Atty. Gen. Ops. No. 89-042, 1989 Ohio AG LEXIS 49 (properly-approved retention schedule permits disposal of paper or other original documents after recording on optical disk, originals may be destroyed). 19 Ohio Rev. Code Ann. § 121.211, § 149.331, and Ohio Rev. Code Ann. § 149.38-.42.

Page 10 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 II: The Open Meetings Act

Simply put, Ohio’s Sunshine Laws are based on the principles of democracy. The Ohio Open Meetings Act is based on the notion that citizens must be able to observe and scrutinize the operations of their representative government. The purpose of the act is to ensure accountability of elected officials by prohibiting secret deliberations of public issues.20

To that end, the Open Meetings Act requires public bodies to deliberate, discuss, and conduct official business in open meetings. Government officials must liberally construe the law with these goals in mind.21 There are only limited situations when a public body may adjourn into executive session to discuss matters privately.22

20 State ex rel. Cincinnati Enquirer v. Hamilton Cty. Bd. Of Cmsrs., 2002 Ohio 2038, 2002 Ohio App. LEXIS 1977 (1st Dist. April 26, 2002). 21 Ohio Rev. Code Ann. § 121.22(A). 22 Ohio Rev. Code Ann. § 121.22(G).

Auditor of State Mary Taylor, CPA · Ohio Attorney General, Marc Dann Page 11 Ohio Sunshine Laws 2008: An Open Government Resource Manual  The Open Meetings Act: “Public Body” Defined

Not every entity is controlled by the provisions of the open meetings law -- only a “public body” must comply. Accordingly, the entity at issue must satisfy the legal definition of a “public body”.

DEFINITION. By statute, a “public body” is “any board, commission, committee, council, or similar decision-making body of a state agency, institution, or authority, and any legislative authority or board, commission, committee, council, agency, authority, or similar decision- making body of any county, township, municipal corporation, school district, or other political subdivision or local public institution,” and any committee or subcommittee of such an entity.23

FACTORS. In analyzing whether an entity is a “public body” courts consider various factors, including, but not limited to: (1) the name or title of the entity;24 (2) the membership composition of the entity;25 (3) the manner in which the entity was created;26 (4) whom the entity advises or to whom it reports;27 and (5) whether the entity is a “decision-making” body.28

23 Ohio Rev. Code Ann. § 121.22(B)(1)(a) and (b). 24 Wheeling Corporation v. Columbus & Ohio River Railroad Company, 2001 Ohio App. LEXIS 5716 (10th Dist. Dec. 20, 2001) (in finding that Selection Committee was a “public body,” court considered it pertinent that the entity was called a “committee,” which term is included in definition of a “public body” in R.C. § 121.22); Stegall v. Joint Twp. Dist. Memorial Hosp., 20 Ohio App.3d 100, 103, 484 N.E.2d 1381 (3rd Dist. 1985) (considering it pertinent whether entity is one of those listed in § 121.22(A)(1)). 25 Wheeling Corporation v. Columbus & Ohio River Railroad Company, 2001 Ohio App. LEXIS 5716 (10th Dist. Dec. 20, 2001) (in finding that Selection Committee was a “public body,” court considered it pertinent that majority of members were also Rail Commission members). See also, 1976 Ohio Atty. Gen. Ops. No. 062, at 2-211 (“the General Assembly apparently intended the statute to apply to all bodies which are comprised of public officials”). 26 Stegall v. Joint Twp. Dist. Memorial Hosp., 20 Ohio App.3d 100, 103, 484 N.E.2d 1381 (3rd Dist. 1985) (considering it pertinent whether entity was created by operation of law); Wheeling Corporation v. Columbus & Ohio River Railroad Company, 2001 Ohio App. LEXIS 5716 (10th Dist. Dec. 20, 2001) (fact that committee was established by Rail Commission without formal action is “immaterial”); Beacon Journal Publ’g Co. v. City of Akron, 3 Ohio St.2d 191, 209 N.E.2d 399 (1965) (where a public official who is not subject to the Open Meetings Act appoints a board or commission, the board or commission may not be subject to Ohio Rev. Code Ann. § 121.22 either). 27 Wheeling Corporation v. Columbus & Ohio River Railroad Company, 2001 Ohio App. LEXIS 5716 (10th Dist. Dec. 20, 2001) (Selection Committee advised Rail Commission, which is a public body); Cincinnati Enquirer v. City of Cincinnati, 2001 Ohio App. LEXIS 3738 (1st Dist. Aug. 24, 2001) (a review board makes recommendation to city manager and/or city council); Beacon Journal Publ’g Co. v. City of Akron, 3 Ohio St.2d 191, 209 N.E.2d 399 (1965) (board or commission advises public official who is not subject to the Open Meetings Act may not be “public body”). 28 Wheeling Corporation v. Columbus & Ohio River Railroad Company, 2001 Ohio App. LEXIS 5716 (10th Dist. Dec. 20, 2001) (Selection Committee made decisions in formulating recommendations to Commission, therefore “decision-making body”); Stegall v. Joint Twp. Dist. Memorial Hosp., 20 Ohio App.3d 100, 103, 484 N.E.2d 1381 (3rd Dist. 1985) (entity must be a “decision-making body”); Cincinnati Enquirer v. City of Cincinnati, 2001 Ohio App. LEXIS 3738 (1st Dist. Aug. 24, 2001) (review board makes decisions in process of reaching consensus recommendation for city manager and/or city council).

Page 12 Auditor of State Mary Taylor, CPA · Ohio Attorney General, Marc Dann Ohio Sunshine Laws 2008: An Open Government Resource Manual APPLIED TO INDIVIDUALS. The open meetings law does not apply to individuals or to meetings conducted by an individual.29 Moreover, if an individual (as opposed to a public body) creates a group solely pursuant to their executive authority or delegation of their authority, the Open Meetings Act probably does not apply to the group’s gatherings.30 But, one court recently determined that a selection committee whose members were appointed by the chair of a public body, not by formal action of the body, is nevertheless itself a public body.31

DECISION-MAKING. Courts disagree as to whether an ad hoc staff or advisory committee that lacks final decision-making authority is a public body.32

PRIVATE BODIES. A private body may be a “public body” for purposes of the Open Meetings Act where it is organized pursuant to state statute and is statutorily authorized to receive and expend government funds for a governmental purpose.33 A governmental decision-making body cannot assign its decision-making authority to a nominally private body to shield decisions from public scrutiny.34

There is a difference between a “public office” under public records law35 and a “public body” under open meetings law. For instance, an entity may be a public office for purposes of public records, but not a public body for purposes of open meetings.36

EXEMPT PUBLIC BODIES. The open meetings law specifically lists some entities or gatherings that are public bodies or are being organized and attended by public bodies but are nevertheless exempt from the requirements of the open meetings laws.37 In short, these bodies may deliberate and conduct specified business outside of the public view:

29 Ohio Rev. Code Ann. § 121.22(B)(1)(a) and (b); Smith v. City of Cleveland, 94 Ohio App. 3d 780, 641 N.E.2d 828 (8th Dist. 1994) (city safety director is not a public body, and may conduct disciplinary hearings without complying with the Open Meetings Act). 30 Beacon Journal Publ’g Co. v. City of Akron, 3 Ohio St.2d 191, 209 N.E.2d 399 (1965); Smith v. City of Cleveland, 94 Ohio App.3d 780, 641 N.E.2d 828 (8th Dist. 1994); eFunds v. Ohio Dept. of Job and Family Services, No. 05CVH09-10276 (C.P. Franklin Cty Ohio, Mar. 6, 2006) (“evaluation committee” of government employees created under authority of state agency administrator is not a public body); 1994 Ohio Atty. Gen. Ops. No. 096. 31 Wheeling Corporation v. Columbus & Ohio River Railroad Co., 2001 Ohio App. LEXIS 5716 (10th Dist. Dec. 20, 2001) (chair of Rail Commission appointed members to Selection Committee). 32 Maser v. City of Canton, 62 Ohio App.2d 174, 405 N.E.2d 731 (5th Dist. 1978); Thomas v. White, 85 Ohio App.3d 410, 620 N.E.2d 85 (2nd Dist. 1992); State ex rel. Vindicator Printing Co. v. Fuda, No. 91-T-4531, 1991 Ohio App. LEXIS 5797 (11th Dist. Dec. 6, 1991); Ungaro v. Reuben McMillan Free Library Ass’n, No. 89CA-190, 1991 Ohio App. LEXIS 1899 (7th Dist. Apr. 24, 1991); 1994 Ohio Atty. Gen. Ops No. 096; 1992 Ohio Atty. Gen. Ops. No. 077; 1992 Ohio Atty. Gen. Ops. No. 065; 1979 Ohio Atty. Gen. Ops. No. 110; 1979 Ohio Atty. Gen. Ops. No. 061. But, see, Cincinnati Enquirer v. City of Cincinnati, 2001 Ohio App. LEXIS 3738 (1st Dist. Aug. 24, 2001) (whether a review board has the ultimate decision making authority is not controlling). 33 State ex rel. Toledo Blade Co. v. Economic Opportunity Planning Ass’n of Greater Toledo, 61 Ohio Misc.2d 631, 582 N.E.2d 59 (1990); see, also, Stegall v. Joint Township Dist. Memorial Hosp., 20 Ohio App.3d 100, 484 N.E.2d 1381 (3rd Dist. 1985). 34 State ex rel. Toledo Blade Co. v. Economic Opportunity Planning Assn., 61 Ohio Misc.2d 631, 640, 582 N.E.2d 59, 65 (1990). 35 See, discussion on what constitutes a “Public Office,” page 42. 36 See Sabo v. Hollister Water Ass’n, Inc., No. 93-CA-1582, 1994 Ohio App. LEXIS 33 (4th Dist. Jan. 12, 1994). 37 Ohio Rev. Code Ann. §121.22(D).

Auditor of State Mary Taylor, CPA · Ohio Attorney General, Marc Dann Page 13 Ohio Sunshine Laws 2008: An Open Government Resource Manual ¾ Grand juries; ¾ Audit conferences; ¾ Adult parole authority hearings to interview inmates for parole or pardon; ¾ Organized crime investigations commission; ¾ Child Fatality Review Board; ¾ State medical board when determining whether to suspend a certificate without a hearing; ¾ Board of nursing when determining whether to suspend a license without a hearing; ¾ State board of pharmacy when determining whether to suspend a license without a hearing; ¾ State chiropractic board when determining whether to suspend a license without a hearing; ¾ Emergency response commission’s executive committee when meeting to determine whether to issue an enforcement order or decide whether to litigate.

PERMISSIBLE CLOSURE. Separately, the open meetings law also permits certain public bodies, when handling particular business, to close their meeting by unanimous vote of the members present.38 So, while these bodies must otherwise comply with the open meetings law, when considering the specified matters, they can vote to close the meeting:

¾ The Entities: The controlling board, development financing advisory council, industrial technology and enterprise advisory council, tax credit authority, community improvement corporations,39 and minority development financing advisory board.40 ¾ The Business: When considering whether to grant assistance for purposes of community or economic development, a meeting of these entities may be closed by unanimous vote when evaluating marketing plans, specific business strategies, production techniques, trade secrets, financial projections, personal financial statements, or tax records and other similar information not open to public inspection.41 ¾ The Limitation: Voting to accept or reject the application for assistance, and all other proceedings of these entities, must comply with the open meetings law.42

38 Ohio Rev. Code Ann. § 121.22(E). 39 Ohio Rev. Code Ann. § 1724.11(B)(1) (community improvement corporation-board or any committee or subcommittee when meeting to consider information that is not a public record may, by unanimous vote of all members present, close the meeting and discuss only that matter). 40 Ohio Rev. Code Ann. § 121.22(E). 41 Ohio Rev. Code Ann. § 121.22(E)(1) – (5). 42 Ohio Rev. Code Ann. § 121.22(E).

Page 14 Auditor of State Mary Taylor, CPA · Ohio Attorney General, Marc Dann Ohio Sunshine Laws 2008: An Open Government Resource Manual THE OHIO LEGISLATURE. The Ohio Legislature is not subject to the provisions of the open meetings law (R.C. 121.22). Instead, committees of the legislature are required to follow the guidelines set forth in the legislature’s own open meetings law.43 Similar to the Open Meetings Act in R.C. 121.22, there are exceptions to the legislature’s open meetings law.44 Meetings of a party caucus are not subject to the open meeting requirements.45

43 Ohio Rev. Code Ann. § 101.15. 44 Ohio Rev. Code Ann. § 101.15(F). 45 Ohio Rev. Code Ann. § 101.15(F)(2).

Auditor of State Mary Taylor, CPA · Ohio Attorney General, Marc Dann Page 15 Ohio Sunshine Laws 2008: An Open Government Resource Manual  The Open Meetings Act: “Meeting” Defined

Whether a gathering of public officials is subject to the open meetings law depends on whether the gathering is a “meeting” as defined in Ohio law.

DEFINITION. For a gathering to be a “meeting,” the gathering must have three characteristics: it must be (1) a prearranged gathering; (2) that is attended by a majority of the members of the public body; and (3) arranged for the purpose of conducting, transacting, deliberating, or discussing public business.46 Where all three of these characteristics are present, the gathering is a “meeting” for purposes of the open meetings law, and the provisions of that law must be satisfied; specifically, the meeting must be open, proper notice must be given, and minutes must be maintained.47

¾ Prearranged Gathering: This statute is not intended to prohibit truly impromptu encounters between members of public bodies.48 For example, an unsolicited e-mail from one board member to other board members is not “pre-arranged,” and a spontaneous one-on-one telephone conversation between two board members is similarly not “pre-arranged.”49

¾ Majority of Members: This is a simple majority,50 and the requirement attaches no matter whether it is the whole body or only a committee or subcommittee of the body that is at issue.51 For instance, if council is comprised of seven members, four would constitute a majority for purposes of this requirement. But, if council appoints a finance committee, which is comprised of only three members, then two of those members constitute a majority of the finance committee. In other words, the finance committee is a “public body” in and of itself, and it must separately comply with the open meetings law.52

46 Ohio Rev. Code Ann. § 121.22(B)(2). See, also, State ex rel. Long. v. Cardington Village Council, 92 Ohio St.3d 54, 748 N.E.2d 58 (2001) (the requirements are to be liberally construed and therefore committee meetings of a majority of council are open meetings); State ex rel. Plain Dealer Publ’g Co. v. Barnes, 38 Ohio St.3d 165, 527 N.E.2d 807 (1988). 47 See, generally, “A Public Body’s Duties,” page 20. 48 Compare with, State ex rel. Cincinnati Post v. City of Cincinnati, 76 Ohio St.3d 540, 544, 1996 Ohio 372, 668 N.E.2d 903, 906 (1996) (while holding that the back-to-back, prearranged discussions of city council members constitutes a “majority,” the Court clarified that the statute does not prohibit impromptu meetings between council members, but concerns itself only with situations where a majority meets). 49 Haverkos v. Northwest Local School District Bd. Of Education, 2005 Ohio 3489, 2005 Ohio App. LEXIS 3237 (1st Dist. July 8, 2005). 50 Ohio Rev. Code Ann. § 121.22(B)(2). See generally, State ex rel. Cincinnati Post v. City of Cincinnati, 76 Ohio St.3d 540, 1996 Ohio 372, 668 N.E.2d 903 (1996) (where back-to-back meetings of the city manager and council members are held, liberal construction of the statute deems that a “majority” of council attended the meeting); State ex rel. Fairfield Leader v. Ricketts, 56 Ohio St.3d 97, 564 N.E.2d 486 (1990) (where a “workshop” to discuss public business is attended by a majority of township trustees and a majority of council, it is a “meeting” under the statute for each public body.) 51 State ex rel. Long v. Cardington Village Council, 92 Ohio St.3d 54, 58-59, 2001 Ohio 130, 748 N.E.2d 58, 63 (2001). 52 State ex rel. Long v. Cardington Village Council, 92 Ohio St.3d 54, 59, 2001 Ohio 130, 748 N.E.2d 58, 63 (2001).

Page 16 Auditor of State Mary Taylor, CPA · Ohio Attorney General, Marc Dann Ohio Sunshine Laws 2008: An Open Government Resource Manual ¾ Conference Calls: Teleconferencing and videoconferencing are prohibited – a member must be present in person in order to deliberate, vote, or to be counted in a quorum.53 Nevertheless, members ought not circumvent the open meetings law by conducting a conference call, claiming that a majority is not “present” at the meeting.54

¾ Discussions or Deliberations: The intent of the open meetings law is “to require governmental bodies to deliberate public issues in public.”55 Much debate has occurred as to what activity constitutes “discussions” or “deliberations” of a public body, such that a gathering may constitute a “meeting.”

Some courts draw a distinction between “discussions” and “deliberations” on one hand, and “information-gathering” or “fact-finding” on the other.56 Courts, by and large, agree that “discussion” of the public business means the exchange of words, comments or ideas by the public body.57 And a single unsolicited e-mail from one board member to two other members, with no responses or counter-responses, does not constitute “discussion” in violation of the open meetings act.58

The term “deliberation” means the act of weighing and examining reasons for and against a choice.59 Moreover, “deliberation” requires a thorough discussion of all factors involved, a careful weighing of positive and negative factors, a cautious consideration of the ramifications of the proposal, while gradually arriving at decision.60

Consequently, conversation between employees of a public body does not constitute deliberation of the public body.61 In addition, a presentation to a public body by its legal counsel, where legal advice is received by the public body may not constitute deliberation by

53 Ohio Rev. Code Ann. § 121.22(C). But, see, e.g., Ohio Rev. Code Ann. § 3333.02 in which Ohio Board of Regents is specifically granted authority to meet via videoconferencing.

54 See generally, State ex rel. Cincinnati Post v. City of Cincinnati, 76 Ohio St.3d 540, 1996 Ohio 372, 668 N.E.2d 903 (1996) (back-to-back meetings of members of a public body, in which less than a majority attend each meeting but the same item of public business is discussed, cannot be used to circumvent the clear intent of the law). 55 Springfield Local School Dist. Bd. Of Educ. V. Ohio Assn. of Public School Employees, Local 530, 106 Ohio App. 3d 855, 864 667 N.E.2d 458, 464 (9th Dist. 1995) (citing Moraine v. Bd. Of Cty. Cmsrs., 67 Ohio St.2d 139, 145, 423 N.E.2d 184 (1981)). 56 See e.g., Mansfield City Council v. Richland County Council AFL-CIO, Case No. 03 CA 55, 2003 Ohio App. LEXIS 6654 at *10 (5th Dist. Dec. 24, 2003) (citing Holeski v. Lawrence, 85 Ohio App. 3d 824, 621 N.E.2d 802 (11th Dist. 1993)); Springfield Local School Dist. Bd. Of Educ. V. Ohio Assn. of Public School Employees, Local 530, 106 Ohio App. 3d 855, 667 N.E.2d 458 (9th Dist. 1995) (citing Holeski v. Lawrence, 85 Ohio App. 3d 824, 621 N.E.2d 802 (11th Dist. 1993)). 57 Devere v. Miami Univ. Bd. Of Trustees, Case No. CA85-05-065, 1986 Ohio App. LEXIS 7171 at *10 (12th Dist. June 10, 1986)). 58 Haverkos v. Northwest Local School District Bd. Of Education, 2005 Ohio 3489, 2005 Ohio App. LEXIS 3237 (1st Dist. July 8, 2005). 59 Springfield Local School Dist. Bd. Of Educ. V. Ohio Assn. of Public School Employees, Local 530, 106 Ohio App. 3d 855, 864, 667 N.E.2d 458, 464 (9th Dist. 1995). 60 Theile v. Harris, Case No. C-860103, 1986 Ohio App. LEXIS 7096 at *15 (1st Dist. June 11, 1986). 61 Kandell v. City Council of Kent, No. 90-P-2255, 1991 Ohio App. LEXIS 3640 (11th Dist. Aug. 2, 1991); State ex rel. Bd. of Educ. for Fairview Park School Dist. v. Bd. of Educ. for Rocky River School Dist., 40 Ohio St.3d 136, 532 N.E.2d 715 (1988).

Auditor of State Mary Taylor, CPA · Ohio Attorney General, Marc Dann Page 17 Ohio Sunshine Laws 2008: An Open Government Resource Manual the public body.62 Also, a press conference is probably not a gathering where deliberation occurs.63

¾ Fact-Finding or Information-Gathering: Some courts distinguish “discussions” or “deliberations,” which must be held in public, from information-gathering, investigation, or fact-finding, which do not have to be held in open session.64 In fact, some courts conclude that before “deliberations” can even begin, the public body must first obtain all “relevant and salient facts necessary to reach a correct, proper, prudent and responsible decision.”65

Accordingly, these courts conclude that “question-and-answer sessions between board members and other persons who are not public officials do not constitute ‘deliberations’ unless a majority of the board members also entertain a discussion of public business with one another.”66

In short, these courts believe that where the majority of members of a public body meet at a prearranged gathering in a “ministerial, fact-gathering capacity,” the third characteristic of a meeting is not satisfied – i.e., there are no discussions or deliberations occurring.67 In which case, no open meeting is required.68

MULTIPLE PUBLIC BODIES. Where the gathering satisfies all three of these characteristics, it is a “meeting,” regardless of whether the public body initiated the gathering itself, or whether it was initiated by another entity.69 And if the meeting is attended by representatives of multiple public bodies, the gathering may be construed to be a separate “meeting” for each public body.70

62 Theile v. Harris, No. C-860103, 1986 Ohio App. LEXIS 7096 (1st Dist. June 11, 1986); Holeski v. Lawrence, 85 Ohio App.3d 824 (11th Dist. 1983); Wyse v. Rupp, No. F-94-19, 1995 Ohio App. LEXIS 4008 (6th Dist. Sept. 15, 1995); State ex rel. Cincinnati Enquirer v. Hamilton County Commissioners, 2002 Ohio App. LEXIS 1977 (1st Dist. Apr. 26, 2002). See, also, discussion re “Fact Finding or Information Gathering” this page. 63 Holeski v. Lawrence, 85 Ohio App.3d 824, 612 N.E.2d 802 (11th Dist. 1993). 64 Springfield Local School Dist. Bd. Of Educ. V. Ohio Assn. of Public School Employees, Local 530, 106 Ohio App. 3d 855, 667 N.E.2d 458 (9th Dist. 1995) (citing Holeski v. Lawrence, 85 Ohio App. 3d 824, 621 N.E.2d 802 (11th Dist. 1993)). 65 Theile v. Harris, Case No. C-860103, 1986 Ohio App. LEXIS 7096 at *15 (1st Dist. June 11, 1986). 66 Mansfield City Council v. Richland County Council AFL-CIO, Case No. 03 CA 55, 2003 Ohio App. LEXIS 6654 (5th Dist. Dec. 24, 2003) (quoting Springfield Local Dist. Bd. Of Educ. V. Ohio Assn. of Public School Employees, Local 530, 106 Ohio App. 3d 855 (9th Dist. 1995)) (internal quotations omitted). See also, Pickutowski v. South Central Ohio Educational Service Center Governing Bd., 2005 Ohio App. LEXIS 2691, 2005-Ohio-2868 (4th Dist. June 3, 2005) (permissible for board to gather information on proposed school district in private setting). 67 Holeski v. Lawrence, 85 Ohio App. 3d 824, 829, 621 N.E.2d 802 (11th Dist. 1993) (trustees met in ministerial, fact- gathering capacity, which does not necessitate an open meeting). See also, Theile v. Harris, Case No. C-860103, 1986 Ohio App. LEXIS 7096 (1st Dist. June 11, 1986) (prearranged discussion between prosecutor and majority of board was not violation where conducted for investigative and information-seeking purposes). 68 Holeski v. Lawrence, 85 Ohio App. 3d 824, 829, 621 N.E.2d 802 (11th Dist. 1993) (trustees met in ministerial, fact- gathering capacity, which does not necessitate an open meeting). See also, Theile v. Harris, Case No. C-860103, 1986 Ohio App. LEXIS 7096 (1st Dist. June 11, 1986) (prearranged discussion between prosecutor and majority of board was not violation where conducted for investigative and information-seeking purposes). 69 State ex rel. Fairfield Leader v. Ricketts, 56 Ohio St.3d 97, 564 N.E.2d 486 (1990). 70 State ex rel. Fairfield Leader v. Ricketts, 56 Ohio St.3d 97, 564 N.E.2d 486 (1990).

Page 18 Auditor of State Mary Taylor, CPA · Ohio Attorney General, Marc Dann Ohio Sunshine Laws 2008: An Open Government Resource Manual WORK SESSIONS. “Work sessions” are “meetings” where public business is discussed among a majority of the members of a public body at a prearranged time.71 Accordingly, these “work sessions” must be open to the public, properly noticed, and minutes must be maintained, just as with any other meeting.

QUASI-JUDICIAL BODIES. The Ohio Supreme Court has determined that quasi-judicial hearings and the deliberations of the quasi-judicial bodies are not “meetings,” and are not subject to the Open Meetings Act.72

INFORMAL CONVERSATION. Some courts have concluded that one-on-one conversations between individual members of a public body, either in person or by telephone, do not violate the Open Meetings Act.73 However, members must not conduct back-to-back discussions of public business, which, taken together, are attended by a majority of the members.74 Such “round-robin” or “serial” meetings appear to violate the Open Meetings Act.75

E-MAIL COMMUNICATION. At least one appellate court in Ohio has concluded that “Ohio’s Sunshine Law does not cover e-mails.”76 In Haverkos v. Northwest Local School District Bd. of Education, the appellate court in Hamilton County noted that during a 2002 revision of the open meetings law, the legislature did not amend the statute to include “electronic communications” in the definition of a “meeting.” According to the court, this omission indicates the legislature’s intent not to include e-mails as potential “meetings.”77

71 State ex rel. Singh v. Schoenfeld, Nos. 92AP-188, 92AP-193, 1993 Ohio App. LEXIS 2409 (10th Dist. May 4, 1993). 72 TBC Westlake, Inc. v. Hamilton County Bd. of Revision, 81 Ohio St.3d 58, 689 N.E.2d 32 (1998); Groff-Knight v. Bd. of Zonings Appeals of Liberty Twp., 2004 Ohio App LEXIS 2856 (5th Dist., June 14, 2004); Jones v. Liquor Control Commission, 2001 Ohio App. LEXIS 5719 (10th Dist. Dec. 20, 2001); Carver v. Twp. of Deerfield, 2000 Ohio App. LEXIS 4588 (11th Dist. Sept. 29, 2000); Angerman v. State Medical Bd. of Ohio, 70 Ohio App.3d 346, 591 N.E.2d 3 (10th Dist. 1990); City of Westerville v. Hahn, 52 Ohio App.3d 8, 556 N.E.2d 200 (10th Dist. 1988). 73 Haverkos v. Northwest Local School District Bd. Of Education, 2005 Ohio 3489, 2005 Ohio App. LEXIS 3237 (1st Dist. July 8, 2005) (spontaneous telephone call from one board member to another to discuss election politics did not violate the open meetings act); McIntyre v. Westerville School Dist., No. 90AP-1024, 1991 Ohio App. LEXIS 2658 (10th Dist. June 6, 1991); Maser v. City of Canton, 62 Ohio App.2d 174, 405 N.E.2d 731 (5th Dist. 1978). But, cf., State ex rel. Floyd v. Rock Hill Local School Bd. Of Educ., No. 1862, 1988 Ohio App. LEXIS 471 (4th Dist. Feb. 10, 1988) (no one-on-one discussions re employment of public employee – must be in open meeting or in executive session). 74 State ex rel. Cincinnati Post v. City of Cincinnati, 76 Ohio St.3d 540, 668 N.E.2d 903 (1996). 75 State ex rel. Cincinnati Post v. City of Cincinnati, 76 Ohio St.3d 540, 668 N.E.2d 903 (1996); State ex rel. Floyd v. Rock Hill Local School Bd. of Educ., No. 1862, 1988 Ohio App. LEXIS 471 (4th Dist. Feb. 10, 1988). 76 Haverkos v. Northwest Local School District Bd. Of Education, 2005 Ohio 3489, 2005 Ohio App. LEXIS 3237 (1st Dist. July 8, 2005) (unsolicited e-mail from one board member to two other board members did not violate the open meetings act). 77 Haverkos v. Northwest Local School District Bd. Of Education, 2005 Ohio 3489, 2005 Ohio App. LEXIS 3237 (1st Dist. July 8, 2005) (unsolicited e-mail from one board member to two other board members did not violate the open meetings act).

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If a public body78 is conducting a “meeting,”79 it has three duties under the open meetings law: The body must (1) issue appropriate notice of a meeting (2) that is open to the public. Additionally, the public body must (3) promptly prepare minutes of the meeting, which are then made available for public inspection.

80 NOTICE. While the meeting must be conducted in an open venue, the public body must first issue appropriate notice of the meeting. The requirements for proper notice will vary depending upon the type of meeting a public body is conducting.

¾ Regular Meetings: A “regular meeting” is held at prescheduled intervals,81 such as “every Tuesday at 7:30 p.m. in the town hall.” For regular meetings, a public body must establish by rule a reasonable method that allows the public to determine the time and place of regular meetings.82

¾ Special Meetings: A “special meeting” is any meeting other than a regular meeting.83 Moreover, the term “special” implies that the meeting is being held for a specific purpose or purposes.84 For special meetings, a public body must establish by rule a reasonable method that allows the public to determine the time, place, and purpose of a special meeting.85

PURPOSE STATEMENT: When holding a special meeting, including an emergency meeting (see discussion below), in addition to advising of the time and date of the meeting, the notice statement must also disclose the purpose(s) for which the special meeting is being conducted.86

Where a special meeting is simply a “regular” meeting occurring at a time other than the regularly scheduled time, it is sufficient notice under the law for the stated purpose to be for

78 See, “’Public Body’ Defined,” page 12. 79 See, “’Meeting’ Defined,” page 16. 80 See, “Public Body’s Duties: Openness,” page 22. 81 1988 Ohio Atty. Gen. Ops. No. 029; State ex rel. Fairfield Leader v. Ricketts, 56 Ohio St.3d 97, 564 N.E.2d 486 (1990). See, generally, Moss v. Leifheit, No. CA-3391, 1989 Ohio App. LEXIS 461 (5th Dist. Jan. 19, 1989) (notice is defective if it fails to specify the public body’s meeting place). 82 Ohio Rev. Code Ann. § 121.22(F). See also, Wyse v. Rupp, No. F-94-19, 1995 Ohio App. LEXIS 4008 (6th Dist. Sept. 15, 1995). 83 State ex rel. Fairfield Leader v. Ricketts, 56 Ohio St.3d 97, 564 N.E.2d 486 (1990); 1988 Ohio Atty. Gen. Ops. No. 029, 1988 Ohio AG LEXIS 29 (“While the term ‘special meeting’ is not defined in R.C. 121.22, its use in context indicates that reference to all meetings other than ‘regular’ meetings was intended.”). 84 Jones v. Brookfield Twp. Trustees, No. 92-T-4692, 1995 Ohio App. LEXIS 2805 at *17-18 (11th Dist. June 30, 1995). 85 Ohio Rev. Code Ann. § 121.22(F). See also, Doran v. Northmont Board of Education, 147 Ohio App. 3d 268, 2002 Ohio 386, 770 N.E.2d 92 (2nd Dist. 2002) (“Doran I”) (board violated R.C. 121.22(F) by failing to establish, by rule, method to inform public of time, place, and purpose of special meetings); Stiller v. Columbiana Exempt Village School Dist. Bd. Of Educ., 74 Ohio St.3d 113, 656 N.E.2d 679 (1995). 86 Ohio Rev. Code Ann. §121.22(F).

Page 20 Auditor of State Mary Taylor, CPA · Ohio Attorney General, Marc Dann Ohio Sunshine Laws 2008: An Open Government Resource Manual “general purposes.”87 However, where the special meeting is being held to discuss particular issues, the purpose statement must specifically indicate those issues, and those specific issues are the only ones that can be discussed at that meeting.88 If, at the special meeting, the public body discusses matters not disclosed in the purpose statement, the meeting violates the Open Meetings Act.89

Moreover, if a public body plans to adjourn into executive session during a special meeting, the topic of the executive session must relate directly to some matter included in the notice.90

The rule for notification of special meetings must require at least 24 hours advance notification to all media outlets that have requested such notification, and to people who have specifically requested such notice.91

¾ Emergency Meetings: An emergency meeting is a special meeting that is convened because a situation requires immediate official action.92 For this type of meeting, the public body must immediately notify all media outlets that have requested such notification, as well as people who have specifically requested such notice, of the time, place and purpose of the emergency meeting.93 The purpose statement must comport with the specificity requirements discussed above.

RULES REQUIREMENT. The statute specifically requires public bodies to adopt rules establishing methods for notification. Nevertheless, many courts have found that actions taken by a public body are not invalid simply because the body failed to adopt such rules.94 These courts reason that the purpose of the law’s invalidation section95 is to invalidate actions taken where insufficient notice of the meeting was provided.96 Accordingly, where there is no evidence of insufficient notice of a meeting, the technical violation of the rules requirement will likely not invalidate all actions taken at that meeting.97

87 Jones v. Brookfield Twp. Trustees, No. 92-T-4692, 1995 Ohio App. LEXIS 2805 at *18 (11th Dist. June 30, 1995). See also, Satterfield v. Adams County Ohio Valley School Dist., No. 95CA611, 1996 Ohio App. LEXIS 4897 (4th Dist. Nov. 6, 1996) (“personnel” sufficient for notice of special meeting). 88 Jones v. Brookfield Twp. Trustees, No. 92-T-4692, 1995 Ohio App. LEXIS 2805 at *18 (11th Dist. June 30, 1995). 89 Hoops v. Jerusalem Twp. Bd. of Trustees, No. L-97-1240, 1998 Ohio App. LEXIS 1496 (6th Dist. Apr. 10, 1998) (business transacted at special meeting exceeded scope of published purpose and thus in violation of. § 121.22(F)). 90 See, Jones v. Brookfield Twp. Trustees, No. 92-T-4692, 1995 Ohio App. LEXIS 2805 (11th Dist. June 30, 1995). 91 Ohio Rev. Code Ann. § 121.22(F); 1988 Ohio Atty. Gen. Ops. No. 029, 1888 Ohio AG LEXIS 29. See also, “Who Receives Notice,” page 22. 92 Cf., Neuvirth v. Bds. of Trustees of Bainbridge Twp., 1981 Ohio App. LEXIS 14641 (11th Dist. June 29, 1981) (subject matter of “emergency meeting” was not an emergency just because the Trustees postponed discussion until the last minute). 93 Ohio Rev. Code Ann. § 121.22(F). 94 Doran v. Northmont Bd. Of Educ., 147 Ohio App. 3d 268, 2002 Ohio 386, 770 N.E.2d 92 (2nd Dist. 2002) (“Doran I”); Hoops v. Jerusalem Twp. Bd. Of Trustees, 1998 Ohio App. LEXIS 1496 (6th Dist. Apr. 10, 1998); Barber v. Twinsburg Twp., 73 Ohio App. 3d 587, 597 N.E.2d 1204 (9th Dist. 1992). 95 Ohio Rev. Code Ann. § 121.22(H). 96 Doran v. Northmont Bd. Of Educ., 147 Ohio App. 3d 268, 271, 2002 Ohio 386, 770 N.E.2d 92 (2nd Dist. 2002) (“Doran I”). 97 See e.g., Doran v. Northmont Bd. Of Educ., 147 Ohio App. 3d 268, 271, 2002 Ohio 386, 770 N.E.2d 92 (2nd Dist. 2002) (“Doran I”) ; Hoops v. Jerusalem Twp. Bd. Of Trustees, 1998 Ohio App. LEXIS 1496 (6th Dist. Apr. 10, 1998); Barber v. Twinsburg Twp., 73 Ohio App. 3d 587, 597 N.E.2d 1204 (9th Dist. 1992).

Auditor of State Mary Taylor, CPA · Ohio Attorney General, Marc Dann Page 21 Ohio Sunshine Laws 2008: An Open Government Resource Manual

¾ Who Receives Notice: The open meetings law requires every public body to establish rules for notification. The rules must provide that two groups of people will receive notification of meetings: (1) the news media that have requested notification; and (2) any person who has requested reasonable advance notification of all meetings.98

As for the second group, the law requires public bodies to enact a rule establishing a method by which a person may sign up to receive notice of meetings.99 Some suggested methods include mailing an agenda to subscribers on a list or mailing notices in self-addressed stamped envelopes, etc.100 The method may also require payment of a reasonable fee, and failure to pay that fee means the person is not entitled to receive the requested notice.101

¾ Media Publication of Notice: Many public bodies routinely notify their local media of all regular, special, and emergency meetings, whether by rule (as required by law102) or by practice. And if the media misprints the meeting information, the public body has not violated the notice requirement so long as it transmitted accurate information to the media as required by its rule.103

However, at least one court has concluded that where publication of the notice is at the newspaper’s discretion, such notice is not “reasonable notice” to the public.104 Instead, notice must be consistent and “actually reach the public” to satisfy the statute.105

106 OPENNESS. A public body must conduct its meetings in a venue that is open to the public. Although the Open Meetings Act does not specifically address where meetings must be held, some case law suggests that meetings must be held in a public meeting place107 that is within the geographical jurisdiction of the public body.108 And a meeting is not “open” where the doors to the meeting facility are locked.109

98 Ohio Rev. Code Ann. § 121.22(F). 99 Ohio Rev. Code Ann. § 121.22(F). 100 Ohio Rev. Code Ann. § 121.22(F). See, e.g., Doran v. Northmont Bd. Of Educ., 147 Ohio App. 3d 268, 2002 Ohio 386, 770 N.E.2d 92 (2nd Dist. 2002) (“Doran I”) (rule allows individuals to mail $5.00 and self-addressed stamped envelopes to receive advance notification of all special meetings). 101 McIntyre v. Bd. of County Cmsrs of Ashtabula County, No. 1269, 1986 Ohio App. LEXIS 8267 (11th Dist. Sept. 12, 1986). See also, Korchnak v. Civil Serv. Comm’n of Canton, No. CA-8133, 1991 Ohio App. LEXIS 291 (5th Dist. Jan. 7, 1991) (no standing to challenge notice violation without formal request and payment of fee established by public body). 102 Ohio Rev. Code Ann. § 121.22 (F). See also, “Rules Requirement,” page 21. 103 Black v. Mecca Twp. Bd. of Trustees, 91 Ohio App.3d 351, 632 N.E.2d 923 (11th Dist. 1993). 104 Doran v. Northmont Bd. Of Educ., 147 Ohio App. 3d 268, 272, 2002 Ohio 386, 770 N.E.2d 92 (2nd Dist. 2002) (“Doran I”). 105 Doran v. Northmont Bd. Of Educ., 147 Ohio App. 3d 268, 272, 2002 Ohio 386, 770 N.E.2d 92 (2nd Dist. 2002) (“Doran I”). 106 Ohio Rev. Code Ann. § 121.22(C). 107 Crist v. True, 39 Ohio App.2d 11, 314 N.E.2d 186 (12th Dist. 1973); 1992 Ohio Atty. Gen. Ops. No. 032. 108 1944 Ohio Atty. Gen. Ops. No. 7038; 1992 Ohio Atty. Gen. Ops. No. 92-032. 109 Specht v. Finnegan, 149 Ohio App.3d 201, 2002 Ohio 4660 (6th Dist. Sept. 6, 2002).

Page 22 Auditor of State Mary Taylor, CPA · Ohio Attorney General, Marc Dann Ohio Sunshine Laws 2008: An Open Government Resource Manual Where space in the facility is too limited to accommodate all interested members of the public, closed circuit television may be an acceptable alternative.110 The meeting place must also be accessible to individuals with disabilities pursuant to federal law, but this requirement has no Open Meetings Act ramifications.111

MINUTES. A public body must keep full and accurate minutes – the minutes must state sufficient facts and information to permit the public to understand and appreciate the rationale behind the public body’s decisions.112 However, minutes do not have to detail discussions held during executive session. Instead, the minutes need only reflect the general subject matter of the executive session.113

Additionally, the public body must promptly prepare the minutes, file them, and maintain them.114 But minutes are merely the record of actions; they are not actions in and of themselves, and invalid minutes do not invalidate the actions recorded in the minutes.115 So, for example, if a public body fails to approve minutes of a meeting, that failure does not necessarily render invalid all action taken during that meeting.116

As indicated, the minutes of a public body’s meetings are open for public inspection.117 However, it is not an invasion of privacy when a public body discloses minutes containing information that has a certain stigma attached or may negatively affect the subject of the information.118 And, in the case of townships, the township fiscal officer is assigned the statutory duty to “keep an accurate record of the proceedings of the board of township trustees at all of its meetings[.]”119

110 Wyse v. Rupp, No. F-94-19, 1995 Ohio App. LEXIS 4008 (6th Dist. Sept. 15, 1995). 111 42 U.S.C. § 12101, American with Disabilities Act of 1990, P.L. §§ 201-02. 112 White v. Clinton County Bd. of Cmsrs, 76 Ohio St.3d 416, 667 N.E.2d 1223 (1996); State ex rel. Long v. Cardington Village Council, 92 Ohio St.3d 54, 748 N.E.2d 58 (2001). 113 Ohio Rev. Code Ann. § 121.22(C). 114 Ohio Rev. Code Ann. § 121.22(C). See, also, White v. Clinton County Bd. of Cmsrs, 76 Ohio St.3d 416, 667 N.E.2d 1223 (1996); State ex rel. Fairfield Leader v. Ricketts, 56 Ohio St.3d 97, 564 N.E.2d 486 (1990); State ex rel. Long v. Cardington Village Council, 92 Ohio St.3d 54, 748 N.E.2d 58 (2001) (audiotapes that are later erased do not meet requirement to maintain). 115 Davidson v. Hanging Rock, 97 Ohio App.3d 723, 647 N.E.2d 527 (4th Dist. 1994). 116 Davidson v. Hanging Rock, 97 Ohio App.3d 723, 647 N.E.2d 527 (4th Dist. 1994). 117 Ohio Rev. Code Ann. § 121.22(C). 118 Carrelli v. Ginsburg, 956 F.2d 598 (6th Cir. 1992). 119 Ohio Rev. Code Ann. § 507.04(A).

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RIGHT TO ATTEND. A person is guaranteed the right to attend and observe a public meeting, not the right to be heard at that meeting.120 A disruptive person waives this right to attend and may be removed from the meeting.121

122 RIGHT TO RECORD. Audio and video recording may not be prohibited , but the public body is permitted to establish reasonable rules regulating the use of such equipment, such as requiring equipment to be silent, unobtrusive, self-contained, and self-powered to limit interference with the ability of others to hear, see, and participate in the meeting.123 However, at least one federal court has held that there is no constitutional right to videotape public meetings.124

VOTING METHOD. Unless a particular statute requires a specified method of voting, the public cannot insist on a particular form of voting – the body may use its own discretion in determining the method it will use.125 The Open Meetings Act does not require a roll call vote, except when adjourning into executive session.126 The use of secret ballots has only been recognized as permissible for county political party central committees.127

120 Community Concerned Citizens v. Union Twp. Bd. of Zoning Appeals, No. CA91-01-009, 1991 Ohio App. LEXIS 5718 (12th Dist. Dec. 2, 1991), aff’d, 66 Ohio St.3d 452, 613 N.E.2d 580 (1993); Black v. Mecca Twp. Bd. of Trustees, 91 Ohio App.3d 351, 632 N.E.2d 923 (11th Dist. 1993); 1992 Ohio Atty. Gen. Ops. No. 032; Forman v. Blaser, No. 13-87-12, 1988 Ohio App. LEXIS 3405 (3rd Dist. Aug. 8, 1988). 121 Forman v. Blaser, No. 13-87-12, 1988 Ohio App. LEXIS 3405 (3rd Dist. Aug 8, 1988). See, also, Jones v. Heyman, 888 F.2d 1328 (11th Cir. 1989) (no violation of 1st and 14th Amendments where disruptive person was removed from a public meeting). 122 McVey v. Carthage Twp. Trustees, 2005 Ohio App. LEXIS 2690, 2005-Ohio-2869 (4th Dist. June 1, 2005) (trustees violated RC 121.22 by banning videotaping). 123 Kline v. Davis, 2001 Ohio App. LEXIS 5598 (4th Dist. Dec. 11, 2001) (blanket prohibition on recording a public meeting not justified); 1988 Ohio Atty. Gen. Ops. No. 087 (trustees have authority to adopt reasonable rules for use of recording equipment at their meetings.) 124 Whiteland Woods v. Twp. of West Whiteland, 193 F.3d 177 (3rd Cir. 1999) (while a person may have a constitutional right to attend public meetings, there is no right to videotape those meetings.) 125 State ex rel. Roberts v. Snyder, 149 Ohio St. 333, 78 N.E.2d 716 (1948). 126 Ohio Rev. Code Ann. § 121.22(G). 127 1980 Ohio Atty. Gen. Ops. No. 80-083.

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An “executive session” is a private conference between members of a public body from which the public is excluded.128 The public body is permitted to invite anyone it chooses into an executive session,129 and, conversely, may exclude anyone it so chooses.130 Because an executive session means that discussions on public business will occur outside the public view, there are limitations on the use of executive sessions.

First, there are limited reasons for which an executive session may be called.131 Second, there is a specific procedure that must be followed when a public body adjourns into an executive session.132 Finally, the public body may take no formal action in an executive session.133

If a public body is challenged in court for discussions or deliberations held in executive session, the public body has the burden of proof to establish that one of the statutory exceptions permitted the executive session.134

128 Weisel v. Palmyra Township Bd. of Zoning Appeals, No. 90-P-2193, 1991 Ohio App. LEXIS 3379 (11th Dist. July 19, 1991); Davidson v. Sheffield-Sheffield Lake Bd. of Educ., No. 89-CA004624, 1990 Ohio App. LEXIS 2190 (9th Dist. May 23, 1990). 129 Chudner v. Cleveland City School Dist., No. 68572, 1995 Ohio App. LEXIS 3303 (8th Dist. Aug. 10, 1995); Weisel v. Palmyra Township Bd. of Zoning Appeals, No. 90-P-2193, 1991 Ohio App. LEXIS 3379 (11th Dist. July 19, 1991); Davidson v. Sheffield-Sheffield Lake Bd. of Educ., No. 89-CA004624, 1990 Ohio App. LEXIS 2190 (9th Dist. May 23,1990). 130 Chudner v. Cleveland City School Dist., No. 68572, 1995 Ohio App. LEXIS 3303 (8th Dist. Aug. 10, 1995). 131 Ohio Rev. Code Ann. §121.22(G)(1)-(7) and (J). 132 Ohio Rev. Code Ann. § 121.22(G)(1) and (7) (requiring roll call vote and specificity in motion.) See also, , State ex rel. Long v. Cardington Village Council, 92 Ohio St.3d 54, 748 N.E.2d 58 (2001); State ex rel. Fenley v. Kyger, 72 Ohio St.3d 164, 648 N.E.2d 493 (1995); The Wheeling Corp. v. Columbus & Ohio River R.R., 147 Ohio App.3d 460, 2001 Ohio 8751, 771 N.E.2d 263 (10th Dist. Dec. 20, 2001); Wright v. Mt. Vernon City Council, 1997 Ohio App. LEXIS 4931 (5th Dist. Oct. 23, 1997) (A public body must strictly comply with both the substantive and procedural limitations of R.C.§ 121.22(G)); Jones v. Brookfield Twp. Trustees, No. 92-T-4692, 1995 Ohio App. LEXIS 2805 (11th Dist. June 30, 1995); Vermillion Teachers’ Ass’n. v. Vermillion Local School Dist. Bd. of Educ., 98 Ohio App.3d 524, 648 N.E.2d 1384 (6th Dist. 1994); 1988 Ohio Atty. Gen. Ops. No. 029. 133 Ohio Rev. Code Ann. §121.22(H). 134 State ex rel. Bond v. City of Montgomery, 63 Ohio App.3d 728, 580 N.E.2d 38 (1st Dist. 1989).

Auditor of State Mary Taylor, CPA · Ohio Attorney General, Marc Dann Page 25 Ohio Sunshine Laws 2008: An Open Government Resource Manual  Exceptions to Openness: Executive Session – Permissible Reasons

There are very limited valid reasons for a public body to adjourn into executive session:

PERSONNEL. A public body may adjourn into executive session to consider the appointment, employment, dismissal, discipline, promotion, demotion, or compensation of a public employee or official, or [to consider] the investigation of charges or complaints against a public employee, official, licensee, or regulated individual, unless the employee, official, licensee, or regulated individual requests a public hearing.135 But a public body may not hold an executive session to consider the discipline of an elected official for conduct related to the performance of the official’s duties or to consider that person’s removal from office.136 This exception does not grant a substantive right to a public hearing – such right must exist elsewhere in Ohio or federal law before a person may demand a public hearing under this exception.137

¾ Non-Specific Personnel. The courts disagree as to whether this exception may be used when discussing a category of personnel, rather than specific personnel or regulated individuals.138 These decisions also indicate that it may be inappropriate to use this exception to discuss the creation of a new position.139 These courts have determined that the “personnel” exception is only appropriately used to discuss matters that directly affect specific personnel or regulated individuals.

PROPERTY. A public body may adjourn into executive session to consider the purchase of property, whether real or personal property, whether it is tangible or intangible.140 A public body may also adjourn into executive session to consider the sale of property by competitive bid (real or personal property) if disclosure of the information would result in a competitive advantage to the other side.141 No member of a public body may use this exception as subterfuge for providing covert information to prospective buyers or sellers.142

135 Ohio Rev. Code Ann. § 121.22(G)(1). See Brownfield v. Bd. of Educ., No. 89 CA 26, 1990 Ohio App. LEXIS 3878 (4th Dist. Aug. 28, 1990) (upon request, teacher was entitled to have deliberations regarding his dismissal in open meetings.) 136 Ohio Rev. Code Ann. § 121.22(G)(1). 137Davidson v. Sheffield-Sheffield Lake Bd. of Educ., No. 89-CA004624, 1990 Ohio App. LEXIS 2190, at 12-13 (9th Dist. May 23, 1990); State ex rel. Harris v. Indus. Comm’n of Ohio, No. 95APE07-891, 1995 Ohio App. LEXIS 5491, at 6 (10th Dist. Dec. 14, 1995). 138 Gannett Satellite Info. Network v. Chillicothe City School Dist., 41 Ohio App.3d 218, 534 N.E.2d 1239 (4th Dist. 1988); Davidson v. Sheffield-Sheffield Lake Bd. of Educ., No. 89-CA004624, 1990 Ohio App. LEXIS 2190 (9th Dist. May 23, 1990). But, see, Wright v. Mt. Vernon City Council, No. 97-CA-7, 1997 Ohio App. LEXIS 4931 (5th Dist. Oct. 23, 1997) (permissible for public body to discuss merit raises for exempt city employees in executive session without referring to individuals in particular positions). 139 Gannett Satellite Info. Network v. Chillicothe City School Dist., 41 Ohio App.3d 218, 534 N.E.2d 1239 (4th Dist. 1988); Davidson v. Sheffield-Sheffield Lake Bd. of Educ., No. 89-CA004624, 1990 Ohio App. LEXIS 2190 (9th Dist. May 23, 1990). 140 Ohio Rev. Code Ann. § 121.22(G)(2). See, also, 1988 Ohio Atty. Gen. Ops. No. 003. 141 Ohio Rev. Code Ann. § 121.22(G)(2). See, also, 1988 Ohio Atty. Gen. Ops. No. 003. 142 Ohio Rev. Code Ann. § 121.22(G)(2).

Page 26 Auditor of State Mary Taylor, CPA · Ohio Attorney General, Marc Dann Ohio Sunshine Laws 2008: An Open Government Resource Manual COURT ACTION. A public body may adjourn into executive session with the public body’s attorney to discuss pending or imminent court action.143 Court action is “pending” if a lawsuit has been commenced; court action is “imminent” if it is on the point of happening or is impending.144 A public body may not use this exception to adjourn into executive session for discussions with a board member who also happens to be an attorney – the attorney should be the duly appointed counsel for the public body.145

COLLECTIVE BARGAINING. A public body may adjourn into executive session to prepare for, conduct, or review collective bargaining strategy.146

CONFIDENTIAL MATTERS. A public body may adjourn into executive session to discuss matters required to be kept confidential by federal law, federal rules, or state statutes.147

¾ Documents Discussed: If a document is a “public record” and is not otherwise exempt under one of the exceptions to the Public Records Act,148 the record will be subject to public disclosure not withstanding the appropriateness of confidential discussions about it. For instance, if a public body properly discusses pending litigation in executive session,149 a settlement proposal drafted during that executive session is nevertheless subject to public disclosure.150

SECURITY MATTERS. A public body may adjourn into executive session to discuss details of security arrangements and emergency response protocols where disclosure could be expected to jeopardize the security of the public body or public office.151

COUNTY HOSPITAL TRADE SECRETS. A public body may adjourn into executive session to discuss trade secrets of a county hospital organized under Ohio Rev. Code Chapter 339.152

143 Ohio Rev. Code Ann. § 121.22(G)(3). 144 State ex rel. Cincinnati Enquirer v. Hamilton County Commissioners, 2002 Ohio App. LEXIS 1977 (1st Dist Apr. 26, 2002) (“imminent” is satisfied when a public body has moved beyond mere investigation and assumed an aggressive litigative posture manifested by the decision to commit government resources to the prospective litigation); State ex rel. Bond v. City of Montgomery, 63 Ohio App.3d 728, 580 N.E.2d 38 (1st Dist. 1989). But, compare, Greene County Guidance Center, Inc. v. Greene-Clinton Community Mental Health Bd., 19 Ohio App.3d 1, 482 N.E.2d 982 (2nd Dist. 1984) (discussion with legal counsel in executive session under 121.22(G)(3) is permitted where litigation is a “reasonable prospect”.) 145 Awadalla v. Robinson Memorial Hosp., No. 91-P-2385, 1992 Ohio App. LEXIS 2838 (11th Dist. June 5, 1992). 146 Ohio Rev. Code Ann. § 121.22(G)(4). 147 Ohio Rev. Code Ann. § 121.22(G)(5). See also State ex rel. Cincinnati Enquirer v. Hamilton County Cmsrs, 2002 Ohio 2038, 2002 Ohio App. LEXIS 1977 (1st Dist. April 26, 2002) (R.C. § 121.22(G)(5) is intended to allow a public body to convene an executive session to discuss matters that they are legally bound to keep from the public); J.C. Penney Properties, Inc. v. Bd. of Revision of Franklin County, Nos. 81-D-509, 81-D-510, 1982 Ohio Tax LEXIS 535 (Ohio Bd. of Tax Appeals Jan. 19, 1982) (common law attorney-client privilege may not be available under Ohio Rev. Code Ann § 121.22 (G)(5) given the presence of Ohio Rev Code Ann. § 121.22(G)(3)). But, see, Theile v. Harris, No. C-860103, 1986 Ohio App. LEXIS 7096, at *16 (1st Dist. June 11, 1986) (public officials have right and duty to seek legal advice from their duly constituted legal advisor.) 148 See generally, “Ohio’s Sunshine Laws: Public Records,” page 35. 149 Ohio Rev. Code Ann. § 121.22(G)(3). 150 State ex rel. Findlay Publ’g Co. v. Hancock County Bd. of Cmsrs, 80 Ohio St.3d 134, 684 N.E.2d 1222 (1997) (R.C. § 121.22(G)(3) permits private discussions about litigation, but settlement agreement resulting from those discussions is public record.) 151 Ohio Rev. Code Ann. § 121.22(G)(6).

Auditor of State Mary Taylor, CPA · Ohio Attorney General, Marc Dann Page 27 Ohio Sunshine Laws 2008: An Open Government Resource Manual VETERANS SERVICE COMMISSIONS. A Veterans Service Commission must hold an executive session when considering an applicant’s request for financial assistance, unless the applicant requests a public hearing.153

152 Ohio Rev. Code Ann. § 121.22(G)(7). 153 Ohio Rev. Code Ann. § 121.22(J).

Page 28 Auditor of State Mary Taylor, CPA · Ohio Attorney General, Marc Dann Ohio Sunshine Laws 2008: An Open Government Resource Manual  Exceptions to Openness: Executive Session –Proper Procedure

As a primary matter, an executive session must always begin and end in an open meeting.154 Then, there must be a proper motion, a second, and a roll call vote.155

THE MOTION. The open meetings law itself indicates that a motion for executive session must specifically identify “which one or more of the approved matters listed…are to be considered at the executive session.”156

For instance, if the purpose of the executive session is to discuss one of the matters listed in the personnel exception, the motion must specify one or more of the listed purposes, i.e., “to discuss the dismissal of a public employee.”157 Without question, it is not sufficient to simply state “personnel” as a reason for executive session.158 But, the motion does not need to specify by name the person who is to be discussed.159

THE SECOND. After the motion, there must be a second on the motion.

THE ROLL CALL VOTE. Members of a public body may adjourn into executive session only after a majority of a quorum of the public body approves the motion by a roll call vote.160 The vote may not be by acclamation or by show of hands, and the vote must be recorded in the minutes. 161

154 Ohio Rev. Code Ann. § 121.22(G). 155 Vermillion Teachers’ Ass’n. v. Vermillion Local School Dist. Bd. of Educ., 98 Ohio App.3d 524, 648 N.E.2d 1384 (6th Dist. 1994); 1988 Ohio Atty. Gen. Ops. No. 029 (detailing proper procedure for executive session). 156 Ohio Rev. Code Ann. § 121.22(G)(1) and (7). 157 Jones v. Brookfield Twp. Trustees, No. 92-T-4692, 1995 Ohio App. LEXIS 2805 (11th Dist. June 30, 1995); 1988 Ohio Atty. Gen. Ops. No. 029; State ex rel. Long v. Cardington Village Council, 92 Ohio St.3d 54, 748 N.E.2d 58 (June 13, 2001). See also, “Executive Session: Permissible Reasons – Personnel,” page 26. 158 State ex rel. Long v. Cardington Village Council, 92 Ohio St.3d 54, 748 N.E.2d 58 (2001) (using general terms like "personnel" instead of one or more of the specified statutory purposes is a violation of R.C. § 121.22(G)(1)); Jones v. Brookfield Twp. Trustees, No. 92-T-4692, 1995 Ohio App. LEXIS 2805 (11th Dist. June 30, 1995); 1988 Ohio Atty. Gen. Ops. No. 029. 159 Ohio Rev. Code Ann. § 121.22(G)(1); Beisel v. Monroe County Bd. of Educ., No. CA-678, 1990 Ohio App. LEXIS 3761 (7th Dist. Aug. 29, 1990). 160 Ohio Rev. Code Ann. § 121.22(G). 161 Ohio Rev. Code Ann. § 121.22(G); 1988 Ohio Atty. Gen. Ops. No. 029. See Shaffer v. Village of West Farmington, 82 Ohio App.3d 579, 612 N.E.2d 1247 (11th Dist. Sept. 18, 1992) (minutes may not be conclusive evidence as to whether roll call vote was taken.)

Auditor of State Mary Taylor, CPA · Ohio Attorney General, Marc Dann Page 29 Ohio Sunshine Laws 2008: An Open Government Resource Manual  Exceptions to Openness: Executive Session – Restrictions

162 NO FORMAL ACTION. There can be no formal action taken in an executive session. And if a public body does take formal action in an executive session (or otherwise violates the open meetings law), the resulting action is invalid.163

NO COMMINGLED TOPICS. Only matters specifically listed in R.C. § 121.22(G) may be discussed in executive session. Further, even when other matters are intertwined with those permitted matters, the other matters must not be discussed in the executive session.164

DISCLOSING INFORMATION. The Open Meetings Act does not prohibit the public body or one of its members from disclosing the information discussed in executive session.165 However, other provisions of law may prohibit such disclosure, depending on the subject matter.166

162 Pickutowski v. South Central Ohio Educational Service Center Governing Bd., 2005 Ohio App. LEXIS 2691, 2005-Ohio- 2868 (4th Dist. June 3, 2005) (resolution approved in open session proposing creation of new school district invalid where it resulted from improper deliberations in executive session), Mansfield City Council v. Richland County Council, 2003 Ohio App. LEXIS 6654 at *13-14 (5th Dist. Dec. 24, 2003) (“formal action” occurred in executive session when members subsequently issued press release stating decision not to take action on union complaint); Mathews v. Eastern Local School Dist., 2001 Ohio App. LEXIS 1677 (4th App. Dist. Jan. 4, 2001); State ex rel. Humphrey v. Adkins, 18 Ohio App.2d 101, 247 N.E.2d 330 (2nd Dist. 1969); State ex rel. Vindicator Printing Co. v. Hughley, 2 Ohio Bar Rep. 449 (Mahoning Cty. C.P. 1982); Drake v. Fairfield County Bd. of Health, No. 28-CA-90, 1991 Ohio App. LEXIS 301 (5th Dist. Jan. 22, 1991). 163 Ohio Rev. Code Ann. § 121.22(H). Mathews v. E. Local School Dist., 2001 Ohio 2372, 2001 Ohio App. LEXIS 1677 (4th Dist. Jan. 4, 2001); State ex rel. Kinsley v. Berea Bd. of Educ., 64 Ohio App.3d 659, 582 N.E.2d 653 (8th Dist. Oct. 17, 1990). See also, Staley v. St. Clair Twp. Bd. of Trustees, No. 87-C-44, 1987 Ohio App. LEXIS 10087 (7th Dist. Dec. 15, 1987). But, see, Barbeck v. Twinsburg Township Bd. of Trustees, 73 Ohio App.3d 587, 597 N.E.2d 1204 (9th Dist. 1992). See also “Open Meetings Act: Remedies”, page 31. 164 State ex rel. Vindicator Printing Co. v. Hughley, 2 Ohio Bar Rep. 449 (Mahoning Cty. C.P. 1982). But, see, Chudner v. Cleveland City School Dist., No. 68572, 1995 Ohio App. LEXIS 3303 (8th Dist. Aug. 10, 1995). 165 But, cf., Ohio Rev. Code Ann. § 121.22(G)(2) (“no member of a public body shall use [executive session under property exception] as a subterfuge for providing covert information to prospective buyers or sellers.”) 166 See, e.g., Ohio Rev. Code Ann. § 102.03(B) (public official must not disclose or use any information acquired in course of official duties that is confidential because of statutory provisions, or that has been clearly designated as confidential); Springfield Local School Dist. Bd. of Educ. v. Ohio Ass’n of Public School Employees, 106 Ohio App.3d 855, 667 N.E.2d 458 (9th Dist. 1995); Informal Opinion of the Ohio Ethics Comm’n issued to Elaine S. Buck (Oct. 10, 1986).

Page 30 Auditor of State Mary Taylor, CPA · Ohio Attorney General, Marc Dann Ohio Sunshine Laws 2008: An Open Government Resource Manual  Open Meetings Act: Remedies

In Ohio, there is no government official (state or local) granted the authority to enforce open meetings laws. Instead, if a person believes a public body has violated, or intends to violate, the open meetings law, that person may bring an action in court to enforce the law’s provisions.

The court will strictly construe the law in favor of openness.167 Also, a court may look beyond the express reason stated by the public body for the executive session to find an implied or circumstantial violation of the Open Meetings Act.168

INJUNCTION. The type of court action that must be filed for an alleged violation of the open meetings law is called an injunction,169 which, if granted, will compel the members of the public body to comply with the law.

¾ Who May File: “Any person”170 may file an injunction to enforce the Open Meetings Act. The statute’s language is ‘plain and unambiguous and provides standing to any individual to bring an action alleging a violation’ of the Open Meetings Act.171 There is no restriction as to who may file an injunction under this law, i.e., the person need not demonstrate a personal stake in the outcome.172

167 Gannett Satellite Info. Network v. Chillicothe City School Dist., 41 Ohio App.3d 218, 534 N.E.2d 1239 (4th Dist. 1988). 168 Sea Lakes, Inc. v. Lipstreu, No. 90-P-2254, 1991 Ohio App. LEXIS 4615 (11th Dist. Sept. 30, 1991) (court found violation where board was to discuss administrative appeal merits privately, appellant’s attorney objected, board immediately held executive session “to discuss pending litigation,” then emerged to announce decision on appeal); In the Matter of Removal of Smith, No. CA-90-11, 1991 Ohio App. LEXIS 2409 (5th Dist. May 15, 1991) (court found violation where county commission emerged from executive session “to discuss legal matters” and announced decision to remove Smith from Board of Mental Health, where there was no county attorney present in executive session and a request for public hearing on removal decision was pending.) 169 Ohio Rev. Code Ann. § 121.22(I)(1). 170 Ohio Rev. Code Ann. § 121.22(I)(1). 171 McVey v. Carthage Twp. Trustees, 2005 Ohio App. LEXIS 2690, 2005-Ohio-2869 (4th Dist. June 1, 2005). 172 Doran v. Northmont Bd. Of Educ., 153 Ohio App. 3d 499, 2003 Ohio 4084 at P20, 794 N.E.2d 760 (2nd Dist. 2003) (“Doran II”); State ex rel. Mason v. State Employment Relations Bd., No. 98AP-780, 1999 Ohio App. LEXIS 1796 (10th Dist. Apr. 20, 1999); Thompson v. Joint Twp., No. 2-82-8, 1983 Ohio App. LEXIS 11519 (3rd Dist. June 23, 1983); Foreman v. Blaser, No. 13-87-12, 1988 Ohio App. LEXIS 3405 (3rd Dist. Aug. 8, 1988). But, see, Korchnak v. Civil Serv. Comm’n of Canton, No. CA-8133, 1991 Ohio App. LEXIS 291 (5th Dist. Jan. 7, 1991) (no standing to challenge notice violation without formal request and payment of fee established by public body.)

Auditor of State Mary Taylor, CPA · Ohio Attorney General, Marc Dann Page 31 Ohio Sunshine Laws 2008: An Open Government Resource Manual

¾ Where and When to File: The statute requires the injunction to be filed in the court of common pleas for the county where the meeting at issue took place.173 And the action must be filed within two years of the violation or alleged violation, or it will be barred from proceeding.174

¾ Legal Burdens: Upon proof of a violation or threatened violation of the open meetings law, the court shall issue an injunction.175 In fact, once the filing party satisfies this burden of proof, the court will conclusively and irrebuttably presume irreparable harm and prejudice to the filing party,176 which means that the filing party need not prove these elements to win the injunction, as would be required in a standard injunction action. And once an injunction is issued, members of the public body who commit a “knowing” violation of the injunction may be removed from office.177

¾ Curing Violations: Once a violation is proven, the court must grant the injunction, regardless of the public body’s intervening or subsequent attempts to cure the violation.178 Indeed, Ohio courts disagree as to whether an invalid action can ever be cured by compliant discussions followed by official action taken in an open session.179 Further, if the action at issue is removal of a public official, which was decided during a meeting allegedly not open to the public, the proper vehicle to challenge that action is a quo warranto action.180

MANDAMUS. Where a person seeks access to the public body’s minutes, that person may also file a mandamus action under the Public Records Act to compel the creation of or access to

173 Ohio Rev. Code Ann. § 121.22(I)(1). 174 Ohio Rev. Code Ann. § 121.22(I)(1). 175 Ohio Rev. Code Ann. § 121.22(I)(1). See also, Doran v. Northmont Bd. Of Educ., 153 Ohio App. 3d 499, 2003 Ohio 4084 at P21, 794 N.E.2d 760 (2nd Dist. 2003) (“Doran II”) (injunction is mandatory upon finding violation of statute); Fayette Volunteer Fire Dept. No. 2, Inc. v. Fayette Twp. Bd. Of Trustees, 87 Ohio App. 3d 51, 54, 621 N.E.2d 855 (4th Dist. 1993). 176 Ohio Rev. Code Ann. § 121.22(I)(3). Ream v. Civil Serv. Comm’n of Canton, No. CA-8033, 1990 Ohio App. LEXIS 5184 (5th Dist. Nov. 26, 1990). 177 Ohio Rev. Code Ann. § 121.22(I)(4); McClarren v. City of Alliance, No. CA-7201, 1987 Ohio App. LEXIS 9211 (5th Dist. Oct. 13, 1987). 178 McVey v. Carthage Twp. Trustees, 2005 Ohio App. LEXIS 2690, 2005-Ohio-2869 at P9 (4th Dist. June 1, 2005) (“Because the statute clearly provides that an injunction is to be issued upon finding a violation of the Sunshine Law, it is irrelevant that the Trustees nullified their prior [offending] action.”), Doran v. Northmont Bd. Of Educ., 153 Ohio App. 3d 499, 2003 Ohio 4084, 794 N.E.2d 760 (2nd Dist. 2003) (“Doran II”); Beisel v. Monroe County Bd. of Educ., No. CA-678, 1990 Ohio App. LEXIS 3761 (7th Dist. Aug. 29, 1990). 179 Courts finding that violations cannot be cured: Danis Montco Landfill Co. v. Jefferson Township Zoning Comm’n, 85 Ohio App.3d 494, 620 N.E.2d 140 (2nd Dist. 1993); with M.F. Mon. Waste Ventures, Inc. v. Bd. of Amanda Twp. Trustees, No. 1-87-46, 1988 Ohio App. LEXIS 493 (3rd Dist. Feb. 12, 1988); Gannett Satellite Information Network, Inc. v. Chillicothe City School District Bd. Of Education, 41 Ohio App.3d 218, 534 N.E.2d 1239 (4th Dist. Apr. 8, 1988). Courts finding violations can be cured: State ex rel. Cincinnati Enquirer v. Hamilton County Cmsrs, 2002 Ohio App. LEXIS 1977 (1st Dist. Apr. 26, 2002); Theile v. Harris, No. C-860103, 1986 Ohio App. LEXIS 7096 (1st Dist. June 11, 1986); Kuhlman v. Village of Leipsic, No. 12-94-9, 1995 Ohio App. LEXIS 1269 (3rd Dist. Mar. 27, 1995); Carpenter v. Bd. of Cmsrs, No. 1- 81-44, 1982 Ohio App. LEXIS 15269 (3rd Dist. Aug. 10, 1982); Fox v. City of Lakewood, 39 Ohio St.3d 19, 528 N.E.2d 1254 (1988); Beisel v. Monroe County Bd. of Educ., No. CA-678, 1990 Ohio App. LEXIS 3761 (7th Dist. Aug. 29, 1990); Brownfield v. Bd. of Educ., No. 89-CA-26, 1990 Ohio App. LEXIS 3878 (4th Dist. Aug. 28, 1990). 180 Randles v. Hill, 66 Ohio St.3d 32, 607 N.E.2d 458 (1993).

Page 32 Auditor of State Mary Taylor, CPA · Ohio Attorney General, Marc Dann Ohio Sunshine Laws 2008: An Open Government Resource Manual meeting minutes.181 Mandamus is also the appropriate action to order a public body to give notice of meetings to the person filing the action.182

MANDATORY FINE. If the court issues an injunction, the court shall order the public body to pay a civil forfeiture of $500 to the party that filed the action.183 Further, where the public body has violated the law on repeated occasions, the $500 fine will be awarded for each violation.184

COURT COSTS AND ATTORNEY FEES. Depending on which party prevails in an injunction action, the other may be ordered to pay all court costs, as well as the other party’s attorney fees.

¾ Awards to the Filing Party: If the court issues an injunction (i.e., if the public body loses), the court shall order the public body to pay all court costs.185 In addition, the court shall also order the public body to pay the filing party its reasonable attorney fees.186

However, the court is given discretion to reduce the attorney fee award to the filing party, even to the point of no fee award, if the court finds that (1) based on the state of the law when the violation occurred, a well-informed public body could reasonably believe it was not violating the law; and (2) it was reasonable for the public body to believe its actions served public policy.187

¾ Awards to the Public Body: On the other hand, if the court does not issue an injunction, and the court deems the action to have been frivolous, the court shall award to the public body all court costs and reasonable attorney’s fees.188 The court has discretion to determine the amount of the fee award to the public body.189

181 State ex rel. Long v. Cardington Village Council, 92 Ohio St.3d 54, 748 N.E.2d 58 (2001); State ex rel. Fairfield Leader v. Ricketts, 56 Ohio St.3d 97, 564 N.E.2d 486 (1990). 182 State ex rel. Vindicator Printing Co. v. Kirila, No. 91-T-4550, 1991 Ohio App. LEXIS 6413 (11th Dist. Dec. 31, 1991). 183 Ohio Rev. Code Ann. § 121.22(I)(2); State ex rel. Long v. Cardington Village Council, 92 Ohio St.3d 54, 748 N.E.2d 58 (June 13, 2001); Cincinnati Enquirer v. City of Cincinnati, 2001 Ohio App. LEXIS 3738 (1st Dist. Aug. 24, 2001). 184 Specht v. Finnegan, 2002 Ohio 4660, 2002 Ohio App. LEXIS 4742 (6th Dist. Sept. 6, 2002); Manogg v. Stickle, 1999 Ohio App. Lexis 1488 (5th Dist. Mar. 15, 1999). But cf., Doran v. Northmont Bd. Of Educ., 2003 Ohio 7097, 2003 Ohio App. LEXIS 6422 (2nd Dist. Dec. 24, 2003) (“Doran III”) (failure to adopt rule is one violation with one $500 fine -- fine not assessed for each meeting conducted in absence of rule where meetings were, in fact, properly noticed and held in an open forum.). 185 Ohio Rev. Code Ann. § 121.22(I)(2)(a). 186 Ohio Rev. Code Ann. § 121.22(I)(2)(a); State ex rel. Long v. Cardington Village Council, 92 Ohio St.3d 54, 748 N.E.2d 58 (2001) (citizen awarded over $17,000 in attorney’s fees); Cincinnati Enquirer v. City of Cincinnati, 2001 Ohio App. LEXIS 3738 (1st Dist. Aug. 24, 2001). 187 Ohio Rev. Code Ann. § 121.22(I)(2)(a)(i) and (ii). Mansfield City Council v. Richland County Council AFL-CIO, 2003 Ohio App. LEXIS 6654 (5th Dist. Dec. 24, 2003). But cf., Mathews v. Eastern Local School Dist., 2001 Ohio App. LEXIS 1677 (4th Dist. Jan 4, 2001) (where two board members knew not to take formal action during executive session, Board was not entitled to reduction.) 188 Ohio Rev. Code Ann. § 121.22(I)(2)(b); McIntyre v. Westerville School Dist., No. 90AP-1024, 1991 Ohio App. LEXIS 2658 (10th Dist. 1991) (plaintiff engaged in frivolous conduct because her actions subjected the board to a baseless suit and the incurring of needless expense.) 189 Ohio Rev. Code Ann. § 121.22(I)(2)(b).

Auditor of State Mary Taylor, CPA · Ohio Attorney General, Marc Dann Page 33 Ohio Sunshine Laws 2008: An Open Government Resource Manual INVALIDITY. A resolution, rule, or formal action of any kind is invalid unless adopted in an open meeting of the public body.190 Even in the absence of a formal vote or poll, a formal action may have occurred. A “formal action” occurs by any mechanism by which members make their views known about a matter pending before them.191

For instance, where council members properly deliberated in executive session whether to take action on a union request, they improperly took formal action in the executive session when it was clear at the conclusion of the executive session that council would take no action on the request.192 Council’s authorization of a press release announcing that no action would be taken and the decision it reflects constitute “formal actions,” which are invalid and of no effect.193

Furthermore, a formal action taken in a meeting for which notice was not properly given may also be invalid.194 In addition, even if the formal action is adopted in an open meeting, if it results from deliberations that improperly occurred in a meeting not open to the public, the action is still invalid.195 However, courts have refused to allow public bodies to benefit from their own violations of the Open Meetings Act.196 For instance, a public body may not attempt to avoid a contractual obligation by arguing that approval of the contract is invalid due to a violation of the Open Meetings Act.197

190 Ohio Rev. Code Ann. § 121.22(H); State ex rel. Holliday v. Marion Twp. Bd. of Trustees, 2000 Ohio App. LEXIS 4416 (3rd Dist. Sept. 27, 2000). 191 Mansfield City Council v. Richland County Council AFL-CIO, 2003 Ohio App. LEXIS 6654 at *13 (5th Dist. Dec. 24, 2003). See also, Pickutowski v. South Central Ohio Educational Service Center Governing Bd., 2005 Ohio App. LEXIS 2691, 2005-Ohio-2868 (4th Dist. June 3, 2005) (in executive session, board members gave personal opinions and indicated vote on proposal to create new school district and resolution to adopt proposal deemed invalid, though it was adopted in open session). 192 Mansfield City Council v. Richland County Council AFL-CIO, 2003 Ohio App. LEXIS 6654 (5th Dist. Dec. 24, 2003). 193 Mansfield City Council v. Richland County Council AFL-CIO, 2003 Ohio App. LEXIS 6654 at *13-14 (5th Dist. Dec. 24, 2003). 194 Ohio Rev. Code Ann. § 121.22(H). See Hoops v. Jerusalem Twp. Bd. of Trustees, No. L-97-1240, 1998 Ohio App. LEXIS 1496 (6th Dist. Apr. 10, 1998); Staley v. St. Clair Township Bd. of Trustees, No. 87-C-44, 1987 Ohio App. LEXIS 10087 (7th Dist. Dec. 15, 1987). But, see, Barbeck v. Twinsburg Township Bd. of Trustees, 73 Ohio App.3d 587, 597 N.E.2d 1204 (9th Dist. 1992). 195 Ohio Rev. Code Ann. § 121.22(H); Mansfield City Council v. Richland County Council AFL-CIO, 2003 Ohio App. LEXIS 6654 at *13 (5th Dist. Dec. 24, 2003) (council reached conclusion based on comments in executive session and acted according to that conclusion); State ex rel. Holliday v. Marion Twp. Bd. of Trustees, 2000 Ohio App. LEXIS 4416 (3rd Dist. Sept. 27, 2000). See, also, State ex rel. Delph v. Barr, 44 Ohio St.3d 77, 541 N.E.2d 59 (1989). 196 Jones v. Brookfield Twp. Trustees, No. 92-T-4692, 1995 Ohio App. LEXIS 2805 (11th Dist. June 30, 1995); Roberto v. Brown County General Hosp., No. CA87-06-009, 1988 Ohio App. LEXIS 372 (12th Dist. Feb. 8, 1988). 197 Roberto v. Brown County General Hosp., No. CA87-06-009, 1988 Ohio App. LEXIS 372 (12th Dist. Feb. 8, 1988).

Page 34 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 III: The Public Records Act

As with the Open Meetings Act, the Public Records Act is also based on the principles of democracy. Furthering the notion that a government “of the people, by the people, and for the people” can be accomplished only when the people are able to oversee their government’s operations, the Ohio Legislature enacted the Public Records Act to guarantee the people broad access to the records of public offices.

Moreover, Ohio’s highest court has expressly cautioned public officials that the records in their possession belong to the people, not to the government officials holding them.198 Accordingly, the public records law must be interpreted liberally in favor of disclosure,199 which means that any doubt about whether to disclose a record should be resolved by its disclosure.

198 White v. Clinton Cty. Bd. Of Cmsrs., 76 Ohio St. 3d 416, 667 N.E.2d 1223 (1996); State ex rel. Patterson v. Ayers, 171 Ohio St. 369, 171 N.E.2d 508 (1960). 199 State ex rel. WBNS-TV, Inc. v. Dues, 101 Ohio St. 3d 406, 2004-Ohio-1497, 805 N.E.2d 1116 (2004); State ex rel. Warren Newspapers, Inc. v. Hutson, 70 Ohio St.3d 619, 621, 640 N.E.2d 174, 177 (1994).

Auditor of State Mary Taylor, CPA · Ohio Attorney General, Marc Dann Page 35 Ohio Sunshine Laws 2008: An Open Government Resource Manual  Public Records Act: A Public Office’s Duties

Even before a member of the public requests to inspect or receive copies of records of the public office, the public office has three duties in order to prepare to receive these requests. The public office must: (1) adopt and post a public records policy, (2) organize and maintain its records in a manner such that they can be made available for inspection or copying, and (3) maintain a copy of the office’s current records retention schedules at a location readily available to the public.

ADOPT AND POST A PUBLIC RECORDS POLICY. A public office is required to create and adopt a public records policy for responding to public records requests.200 The office may obtain guidance from the Attorney General’s model public records policy.201 Items of note: the policy adopted may not: limit the number of public records made available to a single person; limit the number of records the public office will make available during a fixed period of time; or establish a fixed period of time before the public office will respond to a request for inspection or copying of public records, unless that period is less than eight hours.202

In addition, the public records policy must be posted in the public office in a conspicuous location and in all locations where there are branch offices.203 Note also that the public office’s records manager/custodian or employee who otherwise has custody of the records must receive and acknowledge receipt of the policy. The public office is required to include the public records policy in its policies and procedures manual, if one exists. Finally, the public office may post the public records policy on its internet web site.204

ORGANIZATION OF RECORDS. A public office must organize and maintain its records in a manner such that they can be made available for inspection or copying.205

PROVIDE THE PUBLIC OFFICE’S RECORDS RETENTION SCHEDULES. The public office must also maintain a copy of it current records retention schedules at a location readily available to the public.206

ELECTED OFFICIALS’ DUTY TO ATTEND PUBLIC RECORDS TRAINING. All elected government officials of both local and statewide offices (except for justices, judges or clerks of the following courts: supreme court, court of appeals, court of common pleas, municipal court, or county court) must attend a three-hour public records training program approved by the Attorney General for each term of elective office for which the official was appointed or elected.207 The

200 Ohio Rev. Code Ann. § 109.43 (E) and 149.43 (E)(1). 201 Ohio Rev. Code Ann. § 109.43 (E) and §149.43 (E)(1). 202 Ohio Rev. Code Ann. § 149.43 (E)(1). 203 Ohio Rev. Code Ann. § 149.43 (E)(2). 204 Ohio Rev. Code Ann. § 149.43 (E)(2). 205 Ohio Rev. Code Ann § 149.43(B)(2). 206 Ohio Rev. Code Ann. § 149.43 (B)(2). 207 Ohio Rev. Code Ann §109.43(E)(1). See also, 109.43(A)(2) for definition of “elected official.”

Page 36 Auditor of State Mary Taylor, CPA · Ohio Attorney General, Marc Dann Ohio Sunshine Laws 2008: An Open Government Resource Manual certified training must be given by the Ohio Attorney General or another entity with which the Attorney General’s office contracts to conduct the training. The intent of this provision is to enhance the official’s knowledge of the duty to provide access to public records and to provide guidance in developing and updating their offices’ public records policies.208 The Attorney General’s office may not charge a fee to anyone attending the certified training programs it conducts. Contractors of the Attorney General providing certified training may charge a registration fee to attendees, based on the actual and necessary expenses associated with the training, as determined by the Attorney General’s office.209

An elected official may appoint an appropriate designee to attend the training on his or her behalf. The designee must be a person “in the public office” and may be the designee of the sole elected official in a public office or of all the elected officials if the public office includes more than one elected official. 210

If the elected official or his or her designee successfully completes the training requirements established by the Ohio Attorney General, the elected official will have satisfied the education requirements imposed by statutory law.211 The Auditor of State, in the course of a regular financial audit, will audit public offices’ compliance with both the training and public records policy provisions of the law.212

DUTIES REGARDING INSPECTION AND REQUESTS FOR COPIES. Once a member of the public has expressed an interest in inspecting or requesting copies, a public office has two basic duties under the public records law: to provide (1) prompt inspection of public records, and (2) copies within a reasonable period of time, if requested.213 These two duties apply only to items that are “public records” as defined in Ohio law.214

Under current Ohio law, there is no defined period of time (e.g., 10 days) by which a public records request must be completed. Instead, appropriate response times will vary depending on different factors, including, but not limited to: (a) the location and manner in which the records are kept, (b) the breadth of the request, and (c) whether legal evaluation of the responsive records is required before release.

INSPECTION OF PUBLIC RECORDS:

¾ Prompt. “‘Prompt’ is not defined within the statute; however its customary meaning is ‘without delay and with reasonable speed,’ and this meaning depends largely on the facts in

208 Ohio Rev. Code Ann. § 109.43 (B). 209 Ohio Rev. Code Ann. § 109.43 (B),(C), and (D). 210 Ohio Rev. Code Ann. § 109.43 (A)(1). 211 Ohio Rev. Code Ann. § 149.43(E)(1) and §109.43(B). 212 Ohio Rev. Code Ann. § 109.43(G). 213 Ohio Rev. Code Ann. § 149.43(B). See also, generally, State ex rel. Consumer News Services, Inc. v. Worthington City Bd. Of Educ., 97 Ohio St. 3d 58, 2002 Ohio 5311, 776 N.E.2d 82 (2002) (asking requester to withdraw her public records request is inconsistent with a public office’s duties under RC 149.43(B) .) 214 See, “’Public Record’ Defined,” page 42.

Auditor of State Mary Taylor, CPA · Ohio Attorney General, Marc Dann Page 37 Ohio Sunshine Laws 2008: An Open Government Resource Manual each case.”215 This standard does not necessarily require immediate access,216 and it also contemplates the opportunity for legal review. Also, a public office may need time to examine the responsive records before permitting inspection to ensure that all confidential material has been redacted.217

¾ Business Hours. A public office must make its public records available for inspection at all reasonable times during regular business hours.218 “Regular business hours” means established business hours.219 Where a public office operates 24-hours-a-day, such as a police department, the office may adopt hours that approximate normal administrative hours during which inspection may be accomplished.220

¾ Cost of Inspection. The public records law does not permit a public office to charge the public for inspection of public records.221

COPIES OF PUBLIC RECORDS:

¾ Reasonable Period of Time. This period of time must be judged within the context of the circumstances in each individual case.222

¾ Cost of Copies. A public office may only charge its actual cost in making the copy,223 unless the cost is otherwise set by statute.224 For instance, the Ohio Supreme Court has

215 State ex rel. Wadd v. City of Cleveland, 81 Ohio St.3d 50, 689 N.E.2d 25 (1998), quoting Black’s Law Dictionary (6th Ed.1990); State ex rel. Consumer News Services, Inc. v. Worthington City Bd. Of Educ., 97 Ohio St. 3d 58, 2002 Ohio 5311, P51, 776 N.E.2d 82 (2002) (response was not “prompt” where some records were provided on same day as request, while other similar records were delayed for improper reasons.) 216 State ex rel. Montgomery Cty. Public Defender v. Siroki, 108 Ohio St.3d 207, 2006-Ohio-662, P10 (2006) (unreasonable to expect clerk to respond to request for public records “without a moment’s delay”). 217 State ex rel. Montgomery Cty. Public Defender v. Siroki, 108 Ohio St.3d 207, 2006-Ohio-662, P17 (2006) (public records law “envisions an opportunity on the part of the public office to examine records prior to inspection in order to make appropriate redactions of exempt materials.”) (quoting State ex rel. Warren Newspapers, Inc. v. Hutson, 70 Ohio St.3d 619, 623, 640 N.E.2d 174 (1994). 218 Ohio Rev. Code Ann. § 149.43(B). 219 State ex rel. Butler County Bar Ass’n v. Robb, 62 Ohio App.3d 298, 575 N.E.2d 497 (12th Dist. 1990). 220 State ex rel. Warren Newspapers, Inc. v. Hutson, 70 Ohio St.3d 619, 640 N.E.2d 174 (1994) (allowing records requests during all hours of the entire police department’s operations is unreasonable.) 221 State ex rel. Lemke v. Columbiana Pros. Office, No. 93-C-56, 1996 Ohio App. LEXIS 521 (7th Dist. Feb. 16, 1996). 222State ex rel. Consumer News Servs., Inc. v. Worthington City Bd. of Edn., 97 Ohio St.3d 58, 2002-Ohio-5311, 776 N.E.2d 82, ¶ 52 (2002) (“access to public records will ultimately be dependent upon the facts and circumstances of each request”); Also, see, State ex rel. Wadd v. City of Cleveland, 81 Ohio St.3d 50, 53, 689 N.E.2d 25 (1998). 223 State ex rel. Warren Newspapers, Inc. v. Hutson, 70 Ohio St.3d 619, 640 N.E.2d 174 (1994). See, also, State ex rel. Russell v. Thomas, 85 Ohio St.3d 83, 706 N.E.2d 1251 (1999) ($1.00 per page did not represent actual cost of copies); 2001 Ohio Atty. Gen. Ops. No. 01-012; State ex rel. Williams v. Stearn, No. CA-9241, 1993 Ohio App. LEXIS 1624 (5th Dist. Mar. 15, 1993) (“at cost” includes, but is not limited to, the cost to respondent for materials, equipment, and other things necessary for the retrieval and copying of the documents.) But, see, State ex rel. Karasek v. Haines, No. 16490, 1998 Ohio App. LEXIS 4135 (2nd Dist. Sept. 4, 1998) (ten cents for copies is “reasonable”); State ex rel. Strothers v. Murphy, No. 75399, 1999 Ohio App. LEXIS 831 (8th Dist. Mar. 4, 1999) (parties agreed to five cents per page for copies.) 224 E.g., Ohio Rev. Code Ann. § 5502.12 (cost Dept. of Public Safety may charge for copies of accident reports is $4.00). See also, State ex rel. Slagle v. Rogers, 103 Ohio St. 3d 89, 92, 2004-Ohio-4354, *P14, 814 N.E.2d 55, 57 (2004) (it is a “well- settled principle of statutory construction that ‘when two statutes, one general and the other special, cover the same subject

Page 38 Auditor of State Mary Taylor, CPA · Ohio Attorney General, Marc Dann Ohio Sunshine Laws 2008: An Open Government Resource Manual concluded that “when a party to an action requests copies of a court transcript of the proceedings in that action, [the actual cost limitation of the Public Records Act] is superseded by” the statute granting courts the authority to set a court reporter’s fee, which fee may be well in excess of “actual cost.”225 However, where a party is seeking only a copy of the audiotape of the proceedings, he is entitled to that copy “at cost.”226

¾ Employee time may NOT be calculated into the “actual cost” charge.227 Further, specific statutory authority to charge a set fee for certified copies of a public record does not mean the same fee may be charged for uncertified copies of the same record.228 So, if the requester does not request a certified copy, the fee charged must be “at cost.”229

When records are stored, produced, organized, or compiled in an enhanced or “value-added” format, the copying charge is the actual cost of copying the records in the format they exist. A public office cannot include a fee to defray the cost of producing the records in the enhanced format.230

matter, the special provision is to be construed as an exception to the general statute which might otherwise apply.’”) (citing State ex rel. Dublin Securities, Inc. v. Ohio Div. of Securities, 68 Ohio St.3d 426, 1994-Ohio-340, 627 N.E.2d 993 (1994)). 225 State ex rel. Slagle v. Rogers, 103 Ohio St. 3d 89, 93, 2004-Ohio-4354, *P18, 814 N.E.2d 55, 58 (2004) (“R.C. 2301.24 is a specific statute that requires a party to an action to pay the designated fee to the court reporter when seeking transcripts or copies of transcripts in the action.”) 226 State ex rel. Slagle v. Rogers, 103 Ohio St. 3d 89, 92, 2004-Ohio-4354, *P17, 814 N.E.2d 55, 58 (2004) (requester “is not asking to have the tape transcribed or to have a transcript of the tape copied for him—he is only requesting a copy of the audiotape. Under these circumstances, he is entitled to the copy at cost.”) 227 State ex rel. Warren Newspapers, Inc. v. Hutson, 70 Ohio St.3d 619, 640 N.E.2d 174 (1994). 228 State ex rel. Call v. Fragale, 104 Ohio St.3d 276, 2004-Ohio-6589 (2004) (common pleas court clerk may charge up to $1.00 per page for certified copies per R.C. 2303.20(Z)); State ex rel. Butler County Bar Ass’n v. Robb, 66 Ohio App.3d 398, 584 N.E.2d 76 (12th Dist. 1990). 229 State ex rel. Butler County Bar Ass’n v. Robb, 66 Ohio App.3d 398, 584 N.E.2d 76 (12th Dist. 1990). 230 2001 Ohio Atty. Gen. Ops. No. 01-012, 2001 Ohio AG LEXIS 12.

Auditor of State Mary Taylor, CPA · Ohio Attorney General, Marc Dann Page 39 Ohio Sunshine Laws 2008: An Open Government Resource Manual

PAYING FOR COPIES:

¾ Refusal or Inability to Pay. In general, a public office has no duty to provide copies of public records free of charge to someone who indicates an inability or unwillingness to pay for them.231

¾ Advance Payment. Many Ohio courts have held that it is appropriate under the public records law to require prepayment of the cost of copies.232 In addition, prepayment of costs associated with mailing copies of public records is also appropriate.233

MAKING THE COPIES:

¾ Outside Contractors. In some circumstances, it is permissible for a public office, in response to a request for public records, to have an outside contractor make copies and pass on the actual cost of the service directly to the requester.234

¾ The Requester. The public records law does not require the public office to relinquish custody and control of its records so that requesters may make copies of public records using their own equipment.235 However, a public office may not prohibit a requester from duplicating the records using personally owned photographic equipment.236

231 State ex rel. Call v. Fragale, 104 Ohio St.3d 276, 2004-Ohio-6589, 819 N.E.2d 294 (Dec. 15, 2004); State ex rel. Dunning v. Cleary, 2001 Ohio App. LEXIS 79 (8th Dist. Jan. 11, 2001); State ex rel. Mayrides v. City of Whitehall, 62 Ohio App.3d 225, 575 N.E.2d 224 (10th Dist. 1990), aff’d, 62 Ohio St.3d 203, 580 N.E.2d 1089 (1991); State ex rel. Edwards v. Cleveland Police Dept., 116 Ohio App.3d 168, 687 N.E.2d 315 (8th Dist. 1996) (citing Mayrides, supra); State ex rel. Lewis v. O’Brien, No. 96-T-5529, 1996 Ohio App. LEXIS 5944 (11th Dist. Dec. 31, 1996); State ex rel. Plowman v. Butler County Clerk of Courts, 103 Ohio App.3d 77, 658 N.E.2d 812 (12th Dist. 1995). 232 State ex rel. Plowman v. Butler County Clerk of Courts, 103 Ohio App.3d 77, 658 N.E.2d 812 (12th Dist. 1995); State ex rel. Bertolini v. Smith, No. 87AP-218, 1988 Ohio App. LEXIS 2994 (10th Dist. July 26, 1988); Fant v. Sykes, No. 87AP- 1034, 1988 Ohio App. LEXIS 678 (10th Dist. Feb. 23, 1988). See, also, State ex rel. Justice v. Enright, No. 92AP-424, 1992 Ohio App. LEXIS 4550 (10th Dist. Aug. 27, 1992) (dollar per page copying cost challenged but court merely held that since relator sent only $1.50 in advance, this would not cover 33 pages of copying.) 233 Ohio Rev. Code Ann. § 149.43(B)(7); State ex rel. Call v. Fragale, 104 Ohio St.3d 276, 2004-Ohio-6589, 819 N.E.2d 294 (Dec. 15, 2004). See also, “Duty to transmit by method requested,” page 41. 234 State ex rel. Margolius v. City of Cleveland, 62 Ohio St.3d 456, 460 n.4, 584 N.E.2d 665 (1992); State ex rel. Gibbs v. Concord Twp. Trustees, 152 Ohio App. 3d 387, 2003-Ohio-1586 (11th Dist. March 28, 2003). 235 State ex rel. Bertolini v. Smith, No. 87AP-218, 1988 Ohio App. LEXIS 2994 at *3 (10th Dist. July 26, 1988). 236 Land Title Guarantee & Trust Co. v. Essex, 52 Ohio App.2d 56, 368 N.E.2d 326 (9th Dist. 1977) (requester permitted to photograph public records during inspection); 2004 Ohio Atty. Gen. Ops. No. 04-011, 2004 Ohio AG LEXIS 18 (county recorder may not prohibit person from using digital camera to duplicate records nor may the recorder assess a copy fee to the requester.)

Page 40 Auditor of State Mary Taylor, CPA · Ohio Attorney General, Marc Dann Ohio Sunshine Laws 2008: An Open Government Resource Manual  Public Records Act: The Requester’s Rights

Under the public records law, in addition to the right to prompt inspection and copies in a reasonable period of time, a person making a public records request has two additional rights: (1) to receive copies by mail or by any other means of delivery or transmission , and (2) to receive copies on paper, in the same medium in which the records are kept, or in any other medium specified, so long as it is available as an integral part of the public office’s normal business operations.237

COPIES BY METHOD REQUESTED:

¾ Duty to transmit by method requested. Upon request, a public office must provide copies of public records via the U.S. mail or by any other means of delivery of transmission.238 The public office may require prepayment of postage or delivery and the cost of mailing supplies, in addition to the cost of copies.239

¾ Limitation for Commercial Requests. The public office may adopt policies and procedures for mailing or delivering copies of public records, which may include a limit of ten records per month mailed to any one requester, unless the requester certifies in writing that the use of the records or the information in them is not for commercial purposes.240

MEDIUM OF COPIES:

¾ Requester’s Choice. The public records law allows a person to choose the medium upon which they would like a record to be duplicated.241 They can choose to have the record (1) on paper, (2) in the same form as the public office keeps it (e.g., on computer disk), or (3) on any medium upon which the public office determines the record can “reasonably be duplicated as an integral part of the normal operations of the public office.”242 Once the person requesting a copy makes a choice, the public office shall provide a copy in accordance with the choice made by the person seeking the copy.243

237 Ohio Rev. Code Ann. § 149.43(B)(6). See, also, Ohio Rev. Code Ann. § 9.01 (where public office keeps information by machine-readable means, such as microfilm, etc., office must make available the equipment necessary to reproduce information in readable form); State ex rel. Warren Newspapers, Inc. v. Hutson, 70 Ohio St.3d 619, 640 N.E.2d 174 (1994). 238 Ohio Rev. Code Ann. § 149.43(B)(7). 239 Ohio Rev. Code Ann. § 149.43(B)(7). See also cases listed in footnote 232 240 Ohio Rev. Code Ann. § 149.43(B)(7). 241 Ohio Rev. Code Ann. § 149.43(B)(6). State ex rel. Dispatch Printing Co. v. Morrow County Prosecutor’s Office, 105 Ohio St.3d 172, 2005-Ohio-685, 2005 Ohio LEXIS 284 (2005). 242 Ohio Rev. Code Ann. § 149.43(B)(6). 243 State ex rel. Dispatch Printing Co. v. Morrow County Prosecutor’s Office, 105 Ohio St.3d 172, 2005-Ohio-685, 2005 Ohio LEXIS 284 (2005).

Auditor of State Mary Taylor, CPA · Ohio Attorney General, Marc Dann Page 41 Ohio Sunshine Laws 2008: An Open Government Resource Manual  Public Records Act: “Public Record” Defined

Essentially, a “public record” is a record kept by a public office. Consequently, the office holding the record must first be a “public office.”

PUBLIC OFFICE. By statute, a “public office” is a “state agency, public institution, political subdivision, or any other organized body, office, agency, institution, or entity established by the laws of this state for the exercise of any function of government.”244

It is clear that an entity need not be operated by the state or a political subdivision to constitute a “public office.” The following is a list of the various types of offices that courts have determined to be “public offices” for purposes of the Public Records Act:

¾ Public hospitals245 ¾ Community action agencies246 ¾ Private non-profit water corporation supported by public money247 ¾ Private not-for-profit PASSPORT administrative agencies248 ¾ Private equity fund public hospitals249 ¾ Non-profit corporations that receive and solicit gifts for a public university and receive support from taxation250 ¾ Courts251 ¾ State universities252 promotion and tenure records at a state college or university are public records,253 but intellectual property records and donor profile records are not public records254 ¾ Private non-profit county ombudsman offices255

244 Ohio Rev. Code Ann. § 149.011(A). 245 State ex rel. Dist. 1199 v. Lawrence County Gen. Hosp. (1998), 83 Ohio St.3d 351, 1998 Ohio 49, 699 N.E.2d 1281; State ex rel. Foxv. Cuyahoga County Hosp. System (1988), 39 Ohio St.3d 108, 529 N.E.2d 443. But, see, State ex rel. Farley v. McIntosh (1998), 134Ohio App.3d 531, Montgomery County App. No. 16682, 731 N.E.2d 726 (court-appointed psychologist is not “public office”); but, cf., State ex rel. Stys v. Parma Community General Hosp. (2001), 93 Ohio St.3d 438, 2001 Ohio 1582, 755 N.E.2d 874 (hospital deemed not a “public office”). 246 State ex rel. Toledo Blade Co. v. Economic Opportunity Planning Association (1990), 61 Ohio Misc.2d 631, 582 N.E.2d 59. 247 Sabo v. Hollister Water Association (Jan. 12, 1994), Athens App. No. CA1582, 1994 Ohio App. LEXIS 33. 248 1995 Ohio Atty. Gen. Ops. No. 95-001. 249 State ex rel Toledo Blade Co. v. Ohio Bureau of Workers Compensation (2005), 106 Ohio St.3d. 113, 2005 Ohio 3549, 832 N.E. 2d. 711 (fund was about exclusively comprised of workers’ compensation assets). 250 State ex rel. Toledo Blade Co. v. University of Toledo Foundation (1992), 65 Ohio St.3d 258, 602 N.E.2d 1159. 251 State ex rel. Cincinnati Enquirer v. Dinkelacker (2001), 144 Ohio App.3d 725, Hamilton App. No. C-010153, 761 N.E.2d 656 (discovery documents introduced in court as exhibits, changed from trial preparation to public records); Adams v. Metallica, Inc. (2001), 143 Ohio App.3d 482, 758 N.E.2d 286 (Hamilton County); Doe v. American Cancer Society Ohio Div. (2001), 143 Ohio App.3d 495, Hamilton App. No. C-000751, 758 N.E.2d 296 (no clear, unqualified public right to inspect pretrial discovery materials). 252 Halaby v. Board of Directors (1954), 162 Ohio St. 290, 123 N.E.2d 3 (a public institution organized for the purpose of rendering a public service to the residents). 253 State ex rel. James v. Ohio State University (1994), 70 Ohio St.3d 168, 1994 Ohio 246, 637 N.E.2d 911. 254 Ohio Rev. Code Ann. §149.43(A)(1)(m)-(n) and (A)(5)-(6).

Page 42 Auditor of State Mary Taylor, CPA · Ohio Attorney General, Marc Dann Ohio Sunshine Laws 2008: An Open Government Resource Manual ¾ County emergency medical services organizations256

To assist in determining whether an entity is a “public office” for purposes of the Public Records Act, the Supreme Court formally adopted the functional-equivalency test in 2006, instructing that, “[u]nder this test, the court must analyze all pertinent factors, including (1) whether the entity performs a governmental function, (2) the level of government funding, (3) the extent of government involvement or regulation, and (4) whether the entity was created by the government or to avoid the requirements of the Public Records Act."257 The Court subsequently noted that the functional-equivalency test is best suited to the overriding purpose of the Public Records Act, which is "to allow public scrutiny of public offices, not of all entities that receive funds that at one time were controlled by the government.”258

PRIVATE ENTITIES CONTRACTING WITH PUBLIC OFFICES. When a public office contracts with a private entity for government work, the resulting records may be “public records,” even if they are in the possession of the private entity.259 Resulting records are “public records” when three conditions are met: (1) The private entity prepared the records to perform responsibilities normally belonging to the public office; (2) The public office is able to monitor the private entity’s performance; and (3) The public office may access the records itself.260

For instance, the cost overrun records related to the construction of a sports stadium were public records even though they were in the physical possession of a private construction company.261 In fact, even where the public office does not have control over or access to such records, the records may still be deemed to be public.262 Clearly, a public office cannot avoid its responsibility for public records by transferring custody or even the record making function to a private entity.263

So, assuming the office holding the item is a public office (or a contractor of a government entity), the item must also be a “record.” A “record” has three characteristics -- if any of the

255 State ex rel. Strothers v. Wertheim (1997), 80 Ohio St.3d 155, 1997 Ohio 349, 684 N.E.2d 1239. 256 1999 Ohio Atty. Gen. Ops. No. 99-006. 257State ex rel. Oriana House, Inc. v. Montgomery, 110 Ohio St.3d 456, 2006 Ohio 4854, 854 N.E.2d 193; see also State ex rel. Repository v. Nova Behavioral Health, Inc., 112 Ohio St. 3d 338 (2006). 258 State ex rel. Repository v. Nova Behavioral Health, Inc., 112 Ohio St. 3d 338 (2006). 259 State ex rel. Cincinnati Enquirer v. Krings, 93 Ohio St.3d 654, 758 N.E.2d 1135 (2001); State ex rel. Gannett Satellite Info. Network v. Shirey, 76 Ohio St.3d 1224, 669 N.E.2d 1148 (1996); State ex rel. Plain Dealer Publ’g Co. v. City of Cleveland, 75 Ohio St.3d 31, 661 N.E.2d 187 (1996); State ex rel. Medina County Gazette v. Brunswick, 109 Ohio App.3d 661, 672 N.E.2d 1070 (1996). 260 State ex rel. Cincinnati Enquirer v. Krings, 93 Ohio St.3d 654, 758 N.E.2d 1135 (2001); State ex rel. Mazzaro v. Ferguson, 49 Ohio St.3d 37, 550 N.E.2d 464 (1990) (overruled in part by statute, R.C. § 4701.19(B)—audit work papers of private accounting firm are not public records.) 261State ex rel. Cincinnati Enquirer v. Krings, 93 Ohio St.3d 654, 758 N.E.2d 1135 (2001). 262 See, e.g., State ex rel. Gannett Satellite Info. Network v. Shirey, 78 Ohio St.3d 400, 678 N.E.2d 557 (1997) (public office did not have the ability to monitor performance or access to records, but records were held to be public records nonetheless.) 263 State ex rel. Cincinnati Enquirer v. Krings, 93 Ohio St.3d 654, 758 N.E.2d 1135 (2001); State ex rel. Gannett Satellite Info. Network v. Shirey, 76 Ohio St.3d 1224, 669 N.E.2d 1148 (1996); State ex rel. Plain Dealer Publ’g Co. v. City of Cleveland, 75 Ohio St.3d 31, 661 N.E.2d 187 (1996); State ex rel. Medina County Gazette v. Brunswick, 109 Ohio App.3d 661, 672 N.E.2d 1070 (9th Dist. 1996).

Auditor of State Mary Taylor, CPA · Ohio Attorney General, Marc Dann Page 43 Ohio Sunshine Laws 2008: An Open Government Resource Manual three is absent, the item is NOT a “record” (and, thus, not a “public record.”) In that case, a public office will have no duty to provide inspection or copies of the item.264

265 RECORD. A “record” is any item that is kept by a public office that: (1) is stored on a fixed medium, (2) created, received, or sent under the jurisdiction of a public office and (3) documents the organization, functions, policies, decisions, procedures, operations, or other activities of the office.266 Note that in certain instances, the Ohio Supreme Court has concluded that items in a public office which do not “expose government activity to public scrutiny” and do not “shed any light on any government activity” are not “records.”267

Under the plain language of the Public Records Act, a “public record” must be “kept” by the public office.268 Accordingly, where a school board returned superintendent candidates’ application materials to the applicants, there were no “public records” responsive to a newspaper’s request for copies of such materials.269 Moreover, the board’s failure to keep copies of these materials did not violate the newspaper’s First Amendment right to gather news.270

To be a “record,” first the item must be stored on a fixed medium, something tangible. This characteristic is fairly broad, and but for one’s thoughts and unrecorded verbal communication, most everything is stored on a fixed medium of some sort. A public office has discretion to determine the form in which it will keep its records.271 Accordingly, items such as photographs, negatives, videos, maps, voice mails, e-mails, and computer files might constitute “records.”272

Second, the item must have been created, received, or sent under the jurisdiction of the public office.273 Even if the items requested are not in the public office’s physical possession, if they were created under the office’s jurisdiction, they may still be subject to public disclosure.274

264 2007 Ohio Atty. Gen. Ops. No. 034 (an item of physical evidence in the possession of the Prosecuting Attorney that was not introduced as evidence was found not to be a “record”.) State ex rel. Fant v. Enright, 66 Ohio St.3d 186, 188, 610 N.E.2d 997 (1993) (to the extent an item does not document the activities of a public office; it is not a public record and need not be disclosed.) 265 State ex rel. Cincinnati Enquirer v. Cincinnati Bd. Of Educ’n, 99 Ohio St 3d 6, 2003-Ohio-2260, 788 N.E.2d 629 (2003) (materials related to superintendent search were not “public records” where neither board nor search agency kept such materials.) 266 Ohio Rev. Code Ann. § 149.011(G). 267 State ex rel. Montgomery Cty. Public Defender v. Siroki, 108 Ohio St.3d 207, 2006-Ohio-662 (March 1, 2006) (Social Security numbers in court records.) See also, State ex rel. Dispatch Printing Co. v. Johnson, 106 Ohio St.3d 160, 2005- Ohio-4384 (Sept. 7, 2005) (home addresses of state employees); State ex rel Beacon Journal Publ’g Co. v. Bond, 98 Ohio St.3d 146, 2002-Ohio-7117, 781 N.E.2d 180 (2002) (personal information about jurors); State ex rel. McCleary v. Roberts, 88 Ohio St.3d 365, 2000-Ohio-345, 725 N.E.2d 1144 (2000) (personal information of children using city pools.) 268 See, State ex rel. Cincinnati Enquirer v. Cincinnati Bd. Of Educ’n, 99 Ohio St 3d 6, 2003-Ohio-2260, 788 N.E.2d 629 (2003) (materials related to superintendent search were not “public records” where neither board nor search agency kept such materials.) 269 State ex rel. Cincinnati Enquirer v. Cincinnati Bd. Of Educ’n, 99 Ohio St 3d 6, 2003-Ohio-2260, 788 N.E.2d 629 (2003). 270 Cincinnati Enquirer v. Cincinnati Bd. Of Educ’n, 249 F. Supp. 2d 911, 2003 U.S. Dist. LEXIS 2361 (S.D. Ohio 2003) (right to gather news does not include right to access government information.) 271 State ex rel. Recodat Co. v. Buchanan, 46 Ohio St.3d 163, 546 N.E.2d 203 (1989). 272Note, however, that proprietary computer software is not a public record. State ex rel. Recodat Co. v. Buchanan, 46 Ohio St.3d 163, 546 N.E.2d 203 (1989). 273 Ohio Rev. Code Ann. § 149.011(G).

Page 44 Auditor of State Mary Taylor, CPA · Ohio Attorney General, Marc Dann Ohio Sunshine Laws 2008: An Open Government Resource Manual

Third, the item must document the organization, functions, policies, decisions, procedures, operations, or other activities of the office.275 In short, it must document something that the office does.276 The Ohio Supreme Court expressly rejected the notion that an item is a “record” simply because the public office could use the item to carry out its duties and responsibilities.277 Instead, the public office must actually use the item; otherwise it is not a “record.”278

NECESSARY RECORDS. Under Ohio law, a public office may only create records that are “necessary for the adequate and proper documentation of the organization, functions, policies, decisions, procedures, and essential transactions of the agency and for the protection of the legal and financial rights of the state and persons directly affected by the agency’s activities.”279 This standard appears to grant a public office a considerable degree of discretion in determining the records it will maintain.280

CREATING RECORDS. A public office is not required to create new records to respond to a public records request, even if it is only a matter of compiling information from existing records.281 For example, if a person asks a public office for a list of cases pending against it, but the office does not keep such a list, the public office is under no duty to create a list to respond to the request.282

274 State ex rel. Cincinnati Enquirer v. Krings, 93 Ohio St. 3d 654, 2001-Ohio-1895 (2001) (requested stadium cost-overrun records were within jurisdiction of county board and were public records regardless of whether they were in the possession of the county, or the construction companies.) 275 Ohio Rev. Code Ann. § 149.011(G). 276State ex rel. Wilson-Simmons v. Lake County Sheriff’s Dept. (1998), 82 Ohio St.3d 37, 693 N.E.2d 789. (allegedly racist emails circulated between public employees are not “records” when they were not used to conduct the business of the public office.) 277 See State ex rel. Beacon Journal Publ’g Co. v. Whitmore, 83 Ohio St.3d 61, 697 N.E.2d 640 (1998). 278 See 2007 Ohio Atty. Gen. Ops. No. 034 (an item of physical evidence in the possession of the Prosecuting Attorney that was not introduced as evidence was found not to be a “record”.) State ex rel. WBNS-TV, Inc. v. Dues, 101 Ohio St. 3d 406, 411, 2004-Ohio-1497, *P27, 805 N.E.2d 1116, 1122 (2004) (judge used redacted information to decide whether to approve settlement); State ex rel. Beacon Journal Publ’g Co. v. Whitmore, 83 Ohio St.3d 61, 697 N.E.2d 640 (1998) (judge read unsolicited letters but did not rely on them in sentencing a criminal defendant, therefore, letters did not serve to document any activity of the public office and were not “records”); State ex rel. Sensel v. Leone, 85 Ohio St.3d 152, 707 N.E.2d 496 (1999) (letters alleging inappropriate behavior of coach not “records” and can be discarded) (citing to Whitmore, supra); State ex rel. Carr v. Caltrider, 2001 Ohio Misc. LEXIS 41 (Franklin Cty. C.P. 2001); State ex rel. Wilson-Simmons v. Lake County Sheriff’s Dept., 82 Ohio St.3d 37, 693 N.E.2d 789 (1998) (allegedly racist e-mail messages circulated between public employees were not “records.”) 279 Ohio Rev. Code Ann. § 149.40. 280 See State ex rel. Beacon Journal Publ’g Co. v. Whitmore, 83 Ohio St.3d 61, 697 N.E.2d 640 (1998); State ex rel. Sensel v. Leone, 85 Ohio St.3d 152, 707 N.E.2d 496 (1999). See also, State ex rel. Cincinnati Enquirer v. Cincinnati Bd. Of Educ’n, 99 Ohio St 3d 6, 2003-Ohio-2260, 788 N.E.2d 629 (2003) (neither school board nor search agency required by law to keep application materials of superintendent applicants.) 281 State ex rel. White v. Goldsberry, 85 Ohio St.3d 153, 707 N.E.2d 496 (1999); State ex rel. Warren v. Warner, 84 Ohio St.3d 432, 433, 704 N.E.2d 1228 (1999); State ex rel Kerner v. State Teachers Retirement Bd., 82 Ohio St.3d 273, 695 N.E.2d 256 (1998); State ex rel. Wilson-Simmons v. Lake County Sheriff’s Dept., 82 Ohio St.3d 37, 42, 693 N.E.2d 789, 793 (1998); State ex rel. Fant v. Mengel, 62 Ohio St.3d 197, 198, 580 N.E.2d 1085, 1086 (1991). 282 Fant v. Flaherty, 62 Ohio St.3d 426, 583 N.E.2d 1313 (1992); State ex rel. Fant v. Mengel, 62 Ohio St.3d 197, 580 N.E.2d 1085 (1991); Pierce v. Dowler, No. CA93- 08-024, 1993 Ohio App. LEXIS 5224 (12th Dist. Nov. 1, 1993).

Auditor of State Mary Taylor, CPA · Ohio Attorney General, Marc Dann Page 45 Ohio Sunshine Laws 2008: An Open Government Resource Manual However, if a public office’s computer is already programmed to produce the record described by the requester, the record already exists for purposes of the Public Records Act, and the office would have to provide the requested output.283 In addition, if a public office chooses to create a customized record to respond to a public records request, it may still only charge its actual cost to duplicate the record – it may not assess the cost of customization to the requester.284

DRAFTS. The Ohio Supreme Court has held that the written draft of an oral collective bargaining agreement between a city and its union was a “record.”285 According to the Court, the draft documented the city’s version of the oral agreement and the city submitted the draft to city council for its approval.286 In short, so long as the draft document possesses the three characteristics of a “public record,” it will be subject to the public records law, even though it is not in final form.

NOTES. When a public employee’s notes are simply personal papers kept for the employee’s own convenience, rather than for official record keeping purposes, they are not public records subject to mandatory disclosure.287 But, a court will also consider whether other members of the office have access to the notes and whether information would be lost by deeming them to be non-public records. 288

283 State ex rel. Scanlon v. Deters, 45 Ohio St.3d 376, 544 N.E.2d 680 (1989) (overruled on different grounds.) 284 1999 Ohio Atty. Gen. Ops. No. 99-012, 1999 Ohio AG LEXIS 2. 285 State ex rel. Calvary v. City of Upper Arlington, 89 Ohio St.3d 229, 729 N.E.2d 1182 (2000). 286 State ex rel. Calvary v. City of Upper Arlington, 89 Ohio St.3d 229, 729 N.E.2d 1182 (2000). 287State ex rel. Cranford v. Cleveland, 103 Ohio St.3d 196, 2004-Ohio-4884 (Sept. 29, 2004) (personal notes taken during dismissal hearing are not public records); State ex rel. Steffen v. Kraft, 67 Ohio St.3d 439, 619 N.E.2d 688 (1993); State ex rel. Pauer v. Ertel, 149 Ohio App. 3d 287, 2002 Ohio 4592 (8th Dist. Sept. 5, 2002) (judge’s notes, even in court file, are not public records); State ex rel. Murray v. Netting, 1998 Ohio App. LEXIS 4719 (5th Dist., Sept. 18, 1998) (handwritten notes evaluating candidates for police chief are not public records); Int’l. Union, United Automobile, Aerospace and Agricultural Implement Workers of America v. Voinovich, 100 Ohio App.3d 372, 654 N.E.2d 139 (10th Dist. Jan. 19, 1995) (governor’s personal calendars and appointment books were not public records); Vindicator Printing Co. v. Julian, No. 93-CA-252, 1994 Ohio App. LEXIS 3362 (7th Dist. July 26, 1994) (school board members’ notes in preparation for meeting are not records.) 288 State ex rel. Cranford v. Cleveland, 103 Ohio St.3d 196, 2004-Ohio-4884 (Sept. 29, 2004); State ex rel. Steffen v. Kraft, 67 Ohio St.3d 439, 619 N.E.2d 688 (1993); Int’l Union, United Automobile, Aerospace and Agricultural Implement Workers of America v. Voinovich, 100 Ohio App.3d 372, 654 N.E.2d 139 (10th Dist. Jan. 19, 1995) (Governor has official calendar, so no loss of information if personal calendar is not public record); Vindicator Printing Co. v. Julian, No. 93-CA-252, 1994 Ohio App. LEXIS 3362 (7th Dist. July 26, 1994) (board members’ individual evaluation forms not public record, and collective evaluation form ensures no loss of information to public.) But see, State ex rel. Murray v. Netting, 1998 Ohio App. LEXIS 4719 (5th Dist., Sept. 18, 1998) (handwritten notes taken during police chief interview are not public records, even though maintained in agency files); State ex rel. Pauer v. Ertel, 149 Ohio Appl 3d 287, 2002-Ohio-4592, 776 N.E.2d 1173) (judge’s personal notes not public records, even though inadvertently placed in court file.)

Page 46 Auditor of State Mary Taylor, CPA · Ohio Attorney General, Marc Dann Ohio Sunshine Laws 2008: An Open Government Resource Manual  Public Records Act: The Request for Records

THE REQUESTER. Any “person” may request public records, including corporations, individuals, and even other governmental agencies.289 The requester does not have to be an Ohio resident.290 In the absence of a statute to the contrary, foreign individuals and individuals domiciled in a foreign country are “persons” who are entitled to inspect and copy public records.291 Further, the person seeking the records may designate someone else to inspect or retrieve copies.292

INMATE REQUESTER. An incarcerated person, like anyone else, may make a request for public records. However, if the requested records concern a criminal investigation, the inmate must follow very strict guidelines.

First, the records must be “public records” (see Ohio Rev. Code § 149.011(G)) that are not otherwise exempt from public disclosure.293 Second, the inmate must have a finding from the sentencing judge stating that the information the inmate seeks is necessary to support a justiciable claim.294 Courts have regularly dismissed inmates’ mandamus actions because this procedure was not followed.295

PROPER REQUEST. A legally proper public records request specifically and particularly describes the records being sought.296 Mandamus will be denied where the request broadly asks a public office to search for records containing selected information.297 For example, a request

289 Franklin County Sheriff’s Dept. v. State Employment Relations Bd., 63 Ohio St.3d 498, 589 N.E.2d 24 (1992). 290 Ohio Rev. Code Ann. § 1.59; 1990 Ohio Atty. Gen. Ops. No. 90-050, 1990 Ohio AG LEXIS 50. 2912006 Ohio Atty Gen Ops. No. 06-038. 292 State ex rel. Steckman v. Jackson, 70 Ohio St.3d 420, 639 N.E.2d 83 (1994); State v. Larkins, 2003 Ohio 5928, 2003 Ohio App. LEXIS 5276, (8th Dist. Nov. 6, 2003); State ex rel. Finnerty v. Custodian of Records, Strongsville Police Dept., 96 Ohio App.3d 569, 645 N.E.2d 780 (8th Dist. 1994). 293 See, “Exceptions to Disclosure: General Principles” on page 51. 294 Ohio Rev. Code Ann. § 149.43(B)(8). 295 State ex rel. Sevayega v. Reis, 88 Ohio St.3d 458, 727 N.E.2d 910 (2000); Rittner v. Barber, 2006-Ohio-592, 2006 Ohio App. LEXIS 522 (6th Dist., Feb. 7, 2006); Breeden v Mitrovich, 2005-Ohio-5763, 2005 Ohio App LEXIS 5179 (11th Dist., Oct. 28, 2005); State ex rel. Herboltzheimer v City of Columbus, 2005-Ohio-5169, 2005 Ohio App. LEXIS 4658 (10th Dist., Sept. 29, 2005); Bowman v City of Trotwood Police Dept., 2005-Ohio-4734, 2005 Ohio App. LEXIS 4257 (2nd Dist., Sept. 9, 2005); State ex rel. Cohen v. Mazeika, 2004-Ohio-3340, 2004 Ohio App. LEXIS 2978 (11th Dist., June 25, 2004); See also, e.g., State ex rel. Hightower v. Russo, 2003 Ohio App. LEXIS 3316, 2003 Ohio 3679 (8th Dist. July 9, 2003); State ex rel. Becker v. Ohio State Highway Patrol, 2003 Ohio App. LEXIS 1383 (10th Dist. Mar. 25, 2003). 296 State ex rel. Dillery v. Icsman, 92 Ohio St.3d 312, 750 N.E.2d 156 (2001) (requester failed in duty to identify records with sufficient clarity); State ex rel. Whittaker v. Court of Common Pleas, 2001 Ohio App. LEXIS 680 (8th Dist. Feb. 15, 2001) (request for all documents pertaining to a case is fatally vague and incapable of being acted upon); State ex rel. Zauderer v. Joseph, 62 Ohio App.3d 752, 577 N.E.2d 444 (10th Dist. 1989); State ex rel. Farley v. McIntosh, No. 16682, 1998 Ohio App. LEXIS 3307 (2nd Dist. July 17, 1998). 297 See State ex rel. Frank R. Recker & Assoc. Co., L.P.A. v. Montgomery, 79 Ohio St.3d 1502, 684 N.E.2d 8779 (1997); Capers v. White, 2002 Ohio App. LEXIS 1962 (8th Dist. Apr. 17, 2002) (requests for information are not enforceable in a public records mandamus); State ex re. Evans v. City of Parma, 2003-Ohio-1159, 2003 Ohio App. LEXIS 1097, (8th Dist. Mar. 13, 2003) (request for service calls from geographic area improper request); State ex rel. Fant v. Tober, No. 63737, 1993 Ohio App. LEXIS 2591 (8th Dist. Apr. 28, 1993), aff’d, 68 Ohio St.3d 117, 623 N.E.2d 1202 (1993); see, also, State ex rel. Thomas v. Ohio State Univ., 71 Ohio St.3d 245, 643 N.E.2d 126 (1994).

Auditor of State Mary Taylor, CPA · Ohio Attorney General, Marc Dann Page 47 Ohio Sunshine Laws 2008: An Open Government Resource Manual for “any and all records containing any reference whatsoever” to a particular person, is an inappropriate public records request.298

OVERBROAD REQUEST. The person requesting public records has a duty to craft an appropriate request, which describes with sufficient clarity the records desired,299 rather than the information sought.300 For instance, it is inappropriate to request materials exchanged between unspecified people, such as “correspondence either to or from Public Office A to or from any employee, agent, or representative of Company X” because such a request would require the public office to determine all employees, agents, or representatives of Company X.301

A public office may be unable to respond to a request where the manner of indexing the records does not permit retrieval of the records in the same manner as requested.302 Although a records custodian has a duty to organize and maintain records so they are available for inspection or copying,303 using an indexing system different than, and inconsistent with, a request does not necessarily mean the public office has violated its duty under Ohio Rev. Code § 149.43(B)(2).304 At least one court has held that the primary concern of a retrieval system is to accommodate the mission of the office, and that to provide reasonable access for citizens is only secondary or perhaps even tertiary.305

For instance, if a person requests copies of all police service calls for a particular geographical area identified by street names, but the computer system cannot identify calls based on street names, the request does not match the method of retrieval.306 Accordingly, the public records request is not a valid request to which the office has a duty to respond.307

Note, however, that if the requester makes either an overly broad request or has difficulty making the request such that the public office cannot reasonably identify the records sought, the public office may deny the request but is required to provide the requester an opportunity to

298 State ex rel. Dillery v. Icsman, 92 Ohio St.3d 312, 750 N.E.2d 156 (2001). 299 State ex rel. Dillery v. Icsman, 92 Ohio St.3d 312, 750 N.E.2d 156 (2001); Capers v. White, 2002 Ohio App. LEXIS 1962 (8th Dist. Apr. 17, 2002) (a requester must identify with reasonable clarity the records at issue). See State ex rel. Carter v. N. Olmstead, 69 Ohio St.3d 315, 631 N.E.2d 1048 (1994); State ex rel. Waterman v. City of Akron, No. 14507, 1992 Ohio App. LEXIS 5417 (9th Dist. Oct. 21, 1992); State ex rel. Bertolini v. Smith, No. 87AP-218, 1988 Ohio App. LEXIS 2994 (10th Dist. July 26, 1988); State ex rel. Zauderer v. Joseph, 62 Ohio App.3d 752, 577 N.E.2d 444 (10th Dist. 1989). 300 State ex rel. Thomas v. Ohio State Univ., 71 Ohio St.3d 245, 643 N.E.2d 126 (1994). 301 State ex rel. Oriana House, Inc. v. Betty D. Montgomery, 2005-Ohio-3377 (10th Dist. June 30, 2005). 302 State ex rel. Oriana House, Inc. v. Betty D. Montgomery, magistrate’s decision at p30 (fact that requester made what it believes to be a specific request does not mandate that public office keep its records in such a way that access to the records was possible), adopted by State ex rel. Oriana House, Inc. v. Betty D. Montgomery 2005-Ohio-3377 (10th Dist. June 30, 2005); State ex rel. Evans v. City of Parma, 2003-Ohio-1159, 2003 Ohio App. LEXIS 1097 (8th Dist. Mar. 13, 2003). 303 Ohio Rev. Code Ann. § 149.43(B)(2). 304 See State ex rel. Oriana House, Inc. v. Betty D. Montgomery, magistrate’s decision at p30 (fact that requester made what it believes to be a specific request does not mandate that public office keep its records in such a way that access to the records was possible), adopted by State ex rel. Oriana House, Inc. v. Betty D. Montgomery 2005-Ohio-3377 (10th Dist. June 30, 2005); State ex rel. Evans v. City of Parma, 2003-Ohio-1159, 2003 Ohio App. LEXIS 1097 (8th Dist. Mar. 13, 2003); State ex rel. Zauderer v. Joseph, 62 Ohio App.3d 752, 577 N.E.2d 444 (10th Dist. 1989). 305 State ex rel. Zauderer v. Joseph, 62 Ohio App.3d 752, 577 N.E.2d 444 (10th Dist. 1989). 306 State ex rel. Evans v. City of Parma, 2003-Ohio-1159, 2003 Ohio App. LEXIS 1097 (8th Dist. Mar. 13, 2003). 307 State ex rel. Evans v. City of Parma, 2003-Ohio-1159, 2003 Ohio App. LEXIS 1097 (8th Dist. Mar. 13, 2003).

Page 48 Auditor of State Mary Taylor, CPA · Ohio Attorney General, Marc Dann Ohio Sunshine Laws 2008: An Open Government Resource Manual revise the request by informing the requester of the manner in which records are maintained by the public office.308

WRITTEN REQUEST. Ohio’s public records law does not mandate that a request for records be in writing, generally.309 Accordingly, a public office may not require a person to fill out a form before being entitled to inspect or receive copies of public records. If a person is asked to put the request in writing, the public office must first inform the requester that a written request would enhance the public office’s ability to identify, locate or deliver the records sought and that a writing is not mandatory and that the requestor has the right to decline.310

There are limited instances when Ohio law does require a written request. If the requester is a journalist seeking the residential and familial information of a peace officer, parole officer, prosecuting attorney, assistant prosecuting attorney, correctional employee, youth services employee, firefighter, or emergency medical technician, a signed, written request is mandatory by statute.311 The request must include the journalist’s name and title and the name and address of the journalist’s employer, and shall state that disclosure of the information sought would be in the public interest. Similar provisions allowing limited access by journalists to otherwise exempt records appear elsewhere in Ohio law. For instance, journalists may access certain claimant information kept by the Bureau of Workers’ Compensation and the Industrial Commission.312 Journalists may also view--but not copy--certain non-public records of the coroner313 and specified information about individuals to or for whom a sheriff has issued, suspended or revoked a license to carry a concealed handgun.314 In both cases, signed, written requests are required.

IDENTIFICATION OF REQUESTER. A public office may ask the requester’s identity only if it first discloses to the requester that knowledge of their identity would enhance the public office’s ability to deliver the records sought and that it is within the requester’s rights to decline to reveal their identity.315

MOTIVE. Ordinarily, any person may obtain public records without having to state the reason.316 Before a public office inquires about the intended use of the information, the public

308 Ohio Rev. Code Ann. §149.43(B)(2). 309 Franklin County Sheriff’s Dept. v. State Employment Relations Bd., 63 Ohio St.3d 498, 504, 589 N.E.2d 24, 29 (1992) (R.C. § 149.43 does not require any specific form for a public records request.) see also Ohio Rev. Code Ann. § 149.43(B)(5). 310 Ohio Rev. Code Ann. § 149.43(B)(5). 311 Ohio Rev. Code Ann. § 149.43(B)(9). See, also, “Journalist Exception,” page 66. 312 Ohio Rev. Code Ann. §4123.88(D) 313 Ohio Rev. Code Ann. §313.10(D), “A journalist may submit to the coroner a written request to view preliminary autopsy and investigative notes and findings, suicide notes, or photographs of the decedent made by the coroner or by anyone acting under the coroner’s discretion or supervision.” 314 Ohio Rev. Code Ann. §2923.129(B)(2). See also, 2007 Ohio Atty. Gen. Ops. No. 039 (“prohibits a journalist from making a reproduction by any means, other than through his own mental processes…”) 315 Ohio Rev. Code Ann. § 149.43(B)(5). 316 See Ohio Rev. Code Ann. §149.43 ((B)(5), effective September 29, 2007. See also, State ex rel. Fant v. Enright, 66 Ohio St.3d 186, 610 N.E.2d 997 (1993). But, cf., Ohio Rev. Code Ann. § 149.43(B)(5) (journalist seeking peace officer, firefighter,

Auditor of State Mary Taylor, CPA · Ohio Attorney General, Marc Dann Page 49 Ohio Sunshine Laws 2008: An Open Government Resource Manual office must first disclose that providing the intended use of the information would enhance the public office’s ability to identify, locate or deliver the records. In addition, the public office must disclose to the requester that it would be within their rights not to provide this information to the public office.

The Ohio Supreme Court has repeatedly indicated that a person’s motive in accessing public records is irrelevant.317 Except for limiting the number of requests per month in certain circumstances, it is irrelevant whether the records are going to be used for commercial purposes.318 For further discussion of commercial requests, see page 41.

However, in at least one case, the Ohio Supreme Court has considered the requester’s motive in determining whether to make the records available.319 Furthermore, the public records law now takes into account the requester’s motive in determining whether the records must be mailed,320 or whether certain information is even available to a requester.321

BURDEN OR EXPENSE OF COMPLIANCE. A public office cannot deny or delay response to a public records request on the grounds that responding will interfere with the operation of the public office.322 However, when a request unreasonably interferes with the discharge of the public office’s duties, the office may not be obligated to comply.323

or EMT personal or residential information must certify disclosure would be in public interest); 1974 Ohio Atty. Gen. Ops. No. 74-097. 317 Gilbert v. Summit County, 2004-Ohio-7108, *P10, 821 N.E.2d 564 (2004) (citing State ex rel. Fant v. Enright, 66 Ohio St. 3d 186, 610 N.E.2d 997, syllabus (1993) (“[a] person may inspect and copy a ‘public record’ irrespective of his or her purpose for doing so.”)); State ex rel. Consumer News Serv., Inc. v. Worthington City Bd. Of Educ’n, 97 Ohio St. 3d 58, 2002-Ohio-5311, *P45, 776 N.E.2d 82 (2002) (purpose behind request to “inspect and copy public records is irrelevant.”). 318 1990 Ohio Atty. Gen. Ops. No. 90-050, 1990 Ohio AG LEXIS 50; see, also, State ex rel. Webster v. Burleman, 4 Ohio Cir. Dec. 506 (6th Dist. 1894). But, see, Ohio Rev. Code Ann. § 149.43(B)(7) (public office may limit copies mailed to requester if purpose is commercial.) 319 State ex rel. Keller v. Cox, 85 Ohio St.3d 279, 707 N.E.2d 931 (1999) (police officer’s personal information not available to criminal defendant who might use the information to “nefarious ends”). 320 Ohio Rev. Code Ann. § 149.43(B)(7) (public office may limit copies mailed to requester if purpose is commercial.) 321 Ohio Rev. Code Ann. § 149.43(B)(9) (journalist seeking personal and familial information of peace officers, firefighters, emergency medical technicians (EMTs), parole officers, prosecuting attorneys, assistant prosecuting attorneys, correctional employees, and youth services employees must certify that disclosure would be in the public interest.); Ohio Rev. Code Ann. §4123.88(D); Ohio Rev. Code Ann. §2923.129(B)(2). See also, 2007 Ohio Atty. Gen. Ops. No. 039 (“prohibits a journalist from making a reproduction of information about the licensees of concealed carry licenses by any means, other than through his own mental processes…”) 322 State ex rel. Beacon Journal Publ’g Co. v. Andrews, 48 Ohio St.2d 283, 358 N.E.2d 565 (1976) (“[n]o pleading of too much expense, or too much time involved, or too much interference with normal duties, can be used by the [public office] to evade the public’s right to inspect and obtain a copy of public records within a reasonable amount of time.”) 323 Barton v. Shupe, 37 Ohio St.3d 308, 525 N.E.2d 812 (1988); State ex rel. Patterson v. Ayers, 171 Ohio St. 369, 171 N.E.2d 508 (1960) (“anyone may inspect [public] records at any time, subject only to the limitation that such inspection does not endanger the safety of the record, or unreasonably interfere with the discharge of the duties of the officer having custody of the records”); State ex rel. Zauderer v. Joseph, 62 Ohio App.3d 752, 577 N.E.2d 444 (10th Dist. 1989).

Page 50 Auditor of State Mary Taylor, CPA · Ohio Attorney General, Marc Dann Ohio Sunshine Laws 2008: An Open Government Resource Manual  Exceptions to Disclosure: General Principles

In Ohio, we are reminded that the records of a public office belong to the people, not to the government officials holding them.324 Accordingly, the public records law must be liberally interpreted in favor of disclosure,325 and any doubt whether to disclose a record should be resolved by its disclosure.

Further encouraging broad access to public records, exceptions in the law that permit certain types of records to be withheld from disclosure are to be narrowly construed.326 If a record does not clearly fit into one of these exceptions, a public office should disclose the record.

MANDATORY & DISCRETIONARY EXEMPTIONS. A record may be exempt from release under the Public Records Act if a specific provision of either state or federal law prohibits its release, even if the public office would like to disclose it. Such records that are subject to mandatory withholding fall under what is referred to as the “catch-all” exemption.327

Other provisions of the Public Records Act explicitly exempt certain kinds of records from the definition of “public records” that must be made available by a public office. This means that the public office does not have to disclose these records in response to a public records request. However, it may, if it chooses to do so, without fear of punishment under the law. Such records are referred to as being “discretionarily exempt.”

REDACTING. “Redaction” is defined as “obscuring or deleting any information that is exempt from the duty to permit public inspection or copying from an item that otherwise meets the definition of a “record”328 When faced with a record that, in part, contains information that is not subject to public disclosure, the public office should redact the exempt portion of the record (rather than withhold the entire record); the remainder of the record must be disclosed.329 A public office must redact exempt information in good faith, and it may not avoid this responsibility by refusing access to the records, nor may it delegate the duty to a court by forcing a mandamus action.330 However, once the public office has decided whether to release, withhold, or redact particular records, that public office may file a declaratory judgment action to determine the correctness of its decision.331

324 White v. Clinton Cty. Bd. Of Cmsrs., 76 Ohio St. 3d 416, 667 N.E.2d 1223 (1996); Dayton Newspapers, Inc. v. Dayton, 45 Ohio St. 2d 107, 109, 341 N.E.2d 576 (1976) (quoting State ex rel. Patterson v. Ayers, 171 Ohio St. 369, 171 N.E.2d 508 (1960)). 325 State ex rel. Warren Newspapers, Inc. v. Hutson, 70 Ohio St.3d 619, 621, 640 N.E.2d 174, 177 (1994). 326 State ex rel. Warren Newspapers, Inc. v. Hutson, 70 Ohio St.3d 619, 621, 640 N.E.2d 174, 177 (1994). 327 Ohio Revised Code Ann. §149.43(A)(1)(v) 328 Ohio Rev. Code Ann. § 149.43(A)(11) 329 Ohio Rev. Code Ann. §149.43(B)(1). 330 State ex rel. Toledo Blade Co. v. Telb, 50 Ohio Misc.2d 1, 552 N.E.2d 243 (1990). 331 State ex rel. Safety 4th Fireworks, Inc. v. Ohio Dept. of Commerce, Div. of State Fire Marshal, 2003-Ohio-3477, 2003 Ohio App. LEXIS 3145 (7th Dist. June 26, 2003) (citing State ex rel. Fisher v. PRC Public Sector, Inc., 99 Ohio App. 3d 387, 650 N.E.2d 945 (10th Dist. 1994)).

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RESPONSE. If a public office has determined that any portion of the records responsive to the request are exempt from disclosure, the public office has a duty to notify the requester that all or a portion of the request has been denied. The public office may accomplish this notification by explaining what portion(s) were redacted or by making the redaction “plainly visible” to the requester.332

A redaction will be considered to be a denial of a request to inspect or copy the redacted information, except if a federal or state law authorizes or requires the public office to make the redaction.333

STATUTORY INTERPRETATION. Rules of statutory construction, which a court applies when interpreting a challenged statute, typically follow the maxim of expressio unius est exclusio alterius – “the expression of one thing is the exclusion of another.”334 Applying this maxim would mean that if a statute expressly states that particular records of a public office are public, the remaining records would not be public. However, Ohio’s Supreme Court has clearly stated that just the opposite is true: if a statute expressly states that specific records of a public office are public it does not mean that all other records of that office are not public, i.e., that the other records are exempt from disclosure.335

Another “well-settled principle of statutory construction [is] that ‘when two statutes, one general and the other special, cover the same subject matter, the special provision is to be construed as an exception to the general statute which might otherwise apply.’”336 Accordingly, where a statute permits a court to designate the fee parties to an action must pay to the court reporter for copies of court transcripts, that fee will apply, even though it may be in excess of the court’s “actual cost” to duplicate that record.337

LEGAL CHALLENGES. If challenged in court on its decision to withhold a record or redact information, the public office has the burden of proving in court that the records are exempt from disclosure.338 The court then will review, in camera, the materials that were withheld or redacted.339

332 Ohio Rev. Code Ann. § 149.43(B)(1). 333 Ohio Rev. Code Ann. § 149.43(B)(1). 334 Black’s Law Dictionary, 6th Ed., page 581 (West Publishing 1990). 335 Franklin County Sheriff's Dept. v. State Employment Relations Bd., 63 Ohio St.3d 498, 589 N.E.2d 24 (1992) (while categories of records designated in R.C. § 4117.17 clearly are public records, all other records must still be analyzed under R.C. § 149.43.) 336 State ex rel. Slagle v. Rogers, 103 Ohio St. 3d 89, 92, 2004-Ohio-4354, *P14, 814 N.E.2d 55, 57 (2004) (citing State ex rel. Dublin Securities, Inc. v. Ohio Div. of Securities, 68 Ohio St.3d 426, 1994-Ohio-340, 627 N.E.2d 993 (1994)). 337 State ex rel. Slagle v. Rogers, 103 Ohio St. 3d 89, 93, 2004-Ohio-4354, *P18, 814 N.E.2d 55, 58 (2004) (“R.C. 2301.24 is a specific statute that requires a party to an action to pay the designated fee to the court reporter when seeking transcripts or copies of transcripts in the action.”) See generally, “Cost of Copies,” page 38. 338State ex rel. Nat’l Broadcasting Co. v. City of Cleveland, 38 Ohio St.3d 79, 526 N.E.2d 786 (1988) (“NBC I”). 339 State ex rel. Seballos v. SERS, 70 Ohio St.3d 667, 640 N.E.2d 829 (1994);State ex rel. Nat’l Broadcasting Co. v. City of Cleveland, 38 Ohio St.3d 79, 526 N.E.2d 786 (1988); State ex rel. Rash v. City of Canton Police Dep’t, No. CA-9031, 1992 Ohio App. LEXIS 5741 (5th Dist. Nov. 9, 1992); State ex rel. Besser v. Ohio State Univ. 89 Ohio St.3d 396, 732 N.E.2d 373 (2000) (“Besser II”); State ex rel. Strothers v. Rish, 2003-Ohio-2955, 2003 Ohio App. LEXIS 2674 (8th Dist. June 5, 2003);

Page 52 Auditor of State Mary Taylor, CPA · Ohio Attorney General, Marc Dann Ohio Sunshine Laws 2008: An Open Government Resource Manual

After an in camera inspection, the court may decide whether to describe each document and its applicable exception.340 Moreover, a court has the discretion to apply an exception, even where the public office has not so requested. 341

But an in camera review is not always necessary — such as where only the status of the record as a “public record” is in dispute, rather than the content of the record, or where the matters are entirely public or entirely confidential.342 For example, an in camera inspection was unnecessary where the Court determined that a record was a confidential law enforcement investigatory record because the “identity of uncharged suspects and confidential witnesses or information sources would necessarily be intertwined with any retained investigatory records.”343

WAIVER. If a valid exception applies to a particular record, but the public office discloses it anyway, the office is deemed to have waived that exemption, particularly if the disclosure was to a person whose interests are antagonistic to those of the public office.344 However, “waiver does not necessarily occur when the public office that possesses the information makes limited disclosures [to other public officials] to carry out its business.”345 Under such circumstances, the information has never been disclosed to the public.346

State ex rel. Dayton Newspapers v. Dayton Bd. Of Education, 140 Ohio App.3d 243, 747 N.E.2d 255 (2nd Dist. 2000); In Re: EM, 2001 Ohio App. LEXIS 5011 (8th Dist. Nov. 8, 2001) (judge required to conduct in camera review of confidential investigatory records used by witness to refresh memory during testimony, when record is requested by opposing side.) 340 State ex rel. Nat’l Broadcasting Co., Inc. v. City of Cleveland, 82 Ohio App.3d 202, 611 N.E.2d 838 (8th Dist. 1992) (court can chose whether to list each document and identify specific exemptions). 341 State ex rel. Clark v. Toledo, 62 Ohio St. 3d 452(1992) overruled on other grounds. 342 State ex rel. Renfro v. Cuyahoga County Dep’t of Human Servs., 54 Ohio St.3d 25, 560 N.E.2d 230 (1990); compare State ex rel. Fostoria Daily Review Co. v. Fostoria Hosp. Ass’n, 44 Ohio St.3d 111, 541 N.E.2d 587 (1989); State ex rel. Outlet Communications, Inc. v. Lancaster Police Dept., 38 Ohio St.3d 324, 528 N.E.2d 175 (1988); with State ex rel. McGee v. Ohio State Bd. of Psychology, 49 Ohio St.3d 59, 550 N.E.2d 945 (1990); But, see also, In re Vavrock, No. 14-93-12, 1993 Ohio App. LEXIS 4999 (3rd Dist. Sept. 29, 1993) (even if contents are not disputed, court may conduct in camera inspection.) 343 State ex rel. McGee v. Ohio State Bd. of Psychology, 49 Ohio St.3d 59, 550 N.E.2d 945 (1990). 344 See, e.g., State ex rel. Cincinnati Enquirer v. Dupuis, 98 Ohio St.3d 126, 2002-Ohio-7041, 781 N.E.2d 163 (2002); State ex rel. Gannett Satellite Network, Inc. v. Petro, 80 Ohio St.3d 261, 685 N.E.2d 1223 (1997); State ex rel. Zuern v. Leis, 56 Ohio St.3d 20, 564 N.E.2d 81 (1990); Dept. of Liquor Control v. B.P.O.E. Lodge 0107, 62 Ohio St.3d 1452, 579 N.E.2d 1391 (1991) (introduction of record at administrative hearing waives any bar to dissemination); State ex rel. Coleman v. City of Norwood, 1989 Ohio App. LEXIS 3088 (1st Dist. Aug. 2, 1989) (“the visual disclosure of the documents to relator [the requester in this case] waives any contractual bar to dissemination of these documents”); Covington v. Backner, Case No. 98 CVH-07-5242 (Franklin Cty. C.P. June 1, 2000) (attorney-client privilege waived where staff attorney had reviewed, duplicated, and inadvertently produced documents to defendants during discovery.) 345 State ex rel. Musial v. N. Olmstead, 106 Ohio St.3d 459, 2005-Ohio-5521, *P37, (2005) (forwarding police investigation records to a city’s ethics commission did not constitute waiver); State ex rel. Cincinnati Enquirer v. Sharp, 151 Ohio App. 3d 756, 761, 2003-Ohio-1186, *P14, 785 N.E.2d 822, 826 (1st Dist. 2003) (statutory confidentiality of documents submitted to municipal port authority not waived when port authority shares documents with county commissioners.) 346 State ex rel. Musial v. N. Olmstead, 106 Ohio St.3d 459, 2005-Ohio-5521, *P37, (2005) (forwarding police investigation records to a city’s ethics commission did not disclose these records to the general public); State ex rel. Cincinnati Enquirer v. Sharp, 151 Ohio App. 3d 756, 761, 2003-Ohio-1186, *P14, 785 N.E.2d 822, 826 (1st Dist. 2003) (statutory confidentiality of documents submitted to municipal port authority not waived when port authority shares documents with county commissioners.)

Auditor of State Mary Taylor, CPA · Ohio Attorney General, Marc Dann Page 53 Ohio Sunshine Laws 2008: An Open Government Resource Manual  Exceptions to Disclosure: The Catch-all Exception

The “catch-all exception” essentially acknowledges the confidential nature of certain types of information or records. This exception states that if any provision of Ohio or federal law prohibits the disclosure of a certain type of information or record, a public office must not disclose it in response to a public records request.347

A valid “catch-all exception” may be founded in statute.348 Also, an agency rule designating particular records as confidential that is properly promulgated by a state or federal agency will also constitute a valid “catch-all exception”349 because such rules have the effect of law.350 But, if the rule was promulgated outside the authority statutorily granted to the agency, the rule is not valid and will not constitute an exception to disclosure.351

ATTORNEY-CLIENT PRIVILEGE. Pursuant to the catch-all exception, attorney-client privileged materials are not subject to mandatory disclosure under the public records law.352 Thus, drafts of proposed bond documents prepared by an attorney are protected by attorney-client privilege, and are not subject to disclosure.353

354 COURT RECORDS. Pursuant to the catch-all exception, when a court authorizes court records to be sealed pursuant to statutory authority, the records are not available for public disclosure.355 This result is true even though there is a presumptive right of public access to all court

347 Ohio Rev. Code Ann. § 149.43(A)(1)(v). 348 See eg, State ex rel. Beacon Journal Publ’g Co. v. Akron, 104 Ohio St.3d 399, 2004-Ohio-6557, 819 N.E.2d 1087 (Dec. 15, 2004) (information gleaned from a report to children’s services is confidential under RC 2151.421); State ex rel. Strothers v. Rish, 2003 Ohio 2955, 2003 Ohio App. LEXIS 2674 (8th Dist. June 5, 2003) (R.C. § 3309.22(A) is “catch-all” exception for certain information in State Teachers Retirement System records.) 349 State ex rel. Lindsay v. Dwyer 108 Ohio App.3d 462, 670 N.E.2d 1375 (10th Dist. 1996) (State Teachers Retirement System properly denied access to beneficiary form pursuant to Ohio Administrative Code); 2000 Ohio Atty. Gen. Ops. No. 2000-036, 2000 Ohio AG LEXIS 37 (service member’s discharge certificate prohibited from release by Governor’s Office of Veterans Affairs, per federal regulation, without service member’s written consent.) 350 Columbus and Southern Ohio Elec. Co. v. Indus. Comm., 64 Ohio St.3d 119, 592 N.E.2d 1367 (1992); Doyle v. Ohio Bureau of Motor Vehicles, 51 Ohio St.3d 46, 48, 554 N.E.2d 97 (1990); State ex rel. DeBoe v. Indus. Comm., 161 Ohio St. 67, 117 N.E.2d 925, paragraph one of the syllabus (1954). 351 State ex rel. Gallon & Takacs Co., L.P.A. v. Conrad, 123 Ohio App.3d 554, 704 N.E.2d 638 (10th Dist. 1997) (BWC administrative rule prohibiting release of managed care organization applications was unauthorized attempt to create exception to Public Records Act.) 352 State ex rel. Nix v. City of Cleveland, 83 Ohio St.3d 379, 700 N.E.2d 12 (1998); State ex rel. Thomas v. Ohio State Univ., 71 Ohio St.3d 245, 1994 Ohio 261, 643 N.E.2d 126 (1994); State ex rel. Allright Parking of Cleveland, Inc. v. City of Cleveland, 63 Ohio St.3d 772, 591 N.E.2d 708 (1992); Woodman v. City of Lakewood, 44 Ohio App.3d 118, 541 N.E.2d 1084 (8th Dist. 1988). See, also, State ex rel. Leslie v. Ohio Housing Finance Agency, 105 Ohio St. 3d 261, 2005-Ohio-1508, 824 N.E.2d 990 (2005) (the attorney-client privilege applies to state agencies and their in-house counsel even when that counsel is not an Assistant Attorney General); American Motors Corp. v. Huffstutler, 61 Ohio St.3d 343, 575 N.E.2d 116 (1991). 353 State ex rel. Benesch, Friedlander, Coplan & Aronoff, LLP v. City of Rossford, 2000 Ohio App. LEXIS 1719 (6th Dist. Apr. 21, 2000). 354 See also “Common Issues: Court Records,” page 90. 355 State ex rel. Cincinnati Enquirer v. Winkler, 101 Ohio St. 3d 382, 2004-Ohio-1581, 805 N.E.2d 1094 (2004) (“Winkler III”) (records sealed by court pursuant to statutory authority are no longer public records.)

Page 54 Auditor of State Mary Taylor, CPA · Ohio Attorney General, Marc Dann Ohio Sunshine Laws 2008: An Open Government Resource Manual records,356 which right can only be overcome “by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest.”357 Because of this presumption of openness associated with court records, “as a general rule, courts should not order the blanket sealing of records.”358 Instead, a court should evaluate each request for sealing to determine whether the standard of “essential to preserve higher values…” has been satisfied.

FEDERAL FOIA. The Freedom of Information Act (“FOIA”) is a federal law that grants public access to records or information of a federal agency.359 The FOIA, however, does not apply to state agencies or officers,360 nor do the exceptions codified in FOIA.361 As a result, FOIA’s various exceptions do NOT constitute “catch-all” exceptions under Ohio’s public records law.362

For instance, under FOIA, federal agencies can withhold records where disclosure would constitute “an unwarranted invasion of personal privacy.”363 Ohio courts have concluded that the legislature already balanced privacy considerations when it enacted the various exceptions to disclosure, and these courts reject the invitation to apply the FOIA privacy exception to Ohio public records requests.364

Thus, just because a certain type of record is exempt under FOIA, that exception, standing alone, probably is not sufficient grounds upon which an Ohio public office may withhold the record.

CONSTITUTIONAL RIGHT TO PRIVACY. The Ohio Supreme Court has acknowledged that constitutional privacy rights constitute “state or federal law” that prohibit disclosure of certain

356 See e.g., State ex rel. Cincinnati Enquirer v. Winkler, 2002 Ohio App. LEXIS 4857, *6-7 (1st Dist. Sept. 13, 2002) (“Winkler I”), aff’d, 2002-Ohio-7334, 2002 Ohio App. LEXIS 7225 (1st Dist. Dec. 31, 2002) (“Winkler II”), aff’d, 101 Ohio St. 3d 382, 2004-Ohio-1581, 805 N.E.2d 1094 (2004) (“Winkler III”); See, also, State ex rel. Highlander v. Rudduck, 103 Ohio St.3d 370, 2004-Ohio-4952, 816 N.E.2d 213 (2004) (court records were not sealed under any applicable statute); State ex rel. WHIO TV-7 and Dayton Daily News v. Davis, 158 Ohio App. 3d 98, 2004-Ohio-3860, 814 N.E.2d 88 (2nd dist., July 21, 2004). 357 State ex rel. Beacon Journal Publ’g Co. v. Bond, 98 Ohio St.3d 146, 2002-Ohio-7117, paragraph 2 of the syllabus, 781 N.E.2d 180 (2002) (quoting Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 510, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984)) (internal quotations omitted). 358 Davis v. Davis, 2005 Ohio 5719 (1st Dist. Oct. 28, 2005) at *P12 (citing Dzina v. Dzina, 2002 Ohio 2753 (8th Dist. May 30, 2002) at *P24, fn 2 (“The First Amendment to the United States Constitution creates a strong presumption in favor of public access to court proceedings and records. *** Except for a few limited circumstances (such as adoption proceedings), these competing concerns do not justify a blanket order sealing the record of an entire proceeding.”) (Internal citations omitted.) 359 5 U.S.C. § 552. 360 State ex rel. WBNS-TV, Inc. v. Dues, 101 Ohio St. 3d 406, 412, 2004-Ohio-1497, *P35, 805 N.E.2d 1116, 1123 (2004); State ex rel. Findlay Publ’g Company v. Schroeder, 76 Ohio St.3d 580, 669 N.E.2d 835 (1996). 361 State ex rel. Thomas v. Ohio State University, 71 Ohio St.3d 245, 643 N.E.2d 126 (1994); State ex rel. Toledo Blade Company v. University of Toledo Foundation, 65 Ohio St.3d 258, 602 N.E.2d 1159 (1992). 362 State ex rel. Thomas v. Ohio State University, 71 Ohio St.3d 245, 643 N.E.2d 126 (1994); State ex rel. Toledo Blade Company v. University of Toledo Foundation, 65 Ohio St.3d 258, 602 N.E.2d 1159 (1992). 363 5 U.S.C. § 552(b)(6). 364 State ex rel. Toledo Blade Company v. University of Toledo Foundation, 65 Ohio St.3d 258, 602 N.E.2d 1159 (1992).

Auditor of State Mary Taylor, CPA · Ohio Attorney General, Marc Dann Page 55 Ohio Sunshine Laws 2008: An Open Government Resource Manual records or information.365 However, a person’s interest in maintaining the confidentiality of private information does not always rise to a constitutional dimension.366 For a person to establish a constitutional right to privacy in non-disclosure of personal information, the court must find that there is a high potential for fraud or victimization in releasing the information,367 or that releasing the information will create a substantial risk of serious bodily harm or death.368

365 State ex rel. Beacon Journal Publ’g Co. v. Akron, 70 Ohio St. 3d 605, 1994-Ohio-6, 640 N.E.2d 164 (1994) (city employees social security numbers); State ex rel. Keller v. Cox, 85 Ohio St.3d 279, 707 N.E.2d 931 (1999) (personal information of police officers contained in personnel files); State ex rel. McCleary v. Roberts, 88 Ohio St. 3d 365, 725 N.E.2d 1144 (2000) (personal information of children maintained in city’s database.) 366 Kallstrom v. City of Columbus, 136 F.3d 1055, 1062 (6th Cir. 1998) (“Kallstrom I”). 367 State ex rel. Beacon Journal Publ’g Co. v. Akron, 70 Ohio St. 3d 605, 612, 1994-Ohio-6, 640 N.E.2d 164 (1994) (“high potential for fraud and victimization caused by the unchecked release of city employee SSNs”);. State ex rel. McCleary v. Roberts, 88 Ohio St. 3d 365, 372, 725 N.E.2d 1144 (2000) (“Because of the inherent vulnerability of children, release of personal information of this nature creates an unacceptable risk that a child could be victimized); State ex rel. Keller v. Cox, 85 Ohio St.3d 279, 282, 707 N.E.2d 931 (1999) (“Police officers’ files that contain the names of the officers’ children, spouses, parents, home addresses, telephone numbers, beneficiaries, medical information, and the like should not be available to a defendant who might use the information to achieve nefarious ends.”) 368 Kallstrom v. City of Columbus, 136 F.3d 1055, 1062 (6th Cir. 1998) (“Kallstrom I”) (personal information of police officers); State ex rel. Keller v. Cox, 85 Ohio St.3d 279, 707 N.E.2d 931 (1999) (personal information of police officers.)

Page 56 Auditor of State Mary Taylor, CPA · Ohio Attorney General, Marc Dann Ohio Sunshine Laws 2008: An Open Government Resource Manual  Exceptions to Disclosure: The Catch-all Exception -- HIPAA369

Regulations implementing the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) became fully effective in April 2003. Among the regulations written to implement HIPAA is the “Privacy Rule,” which is a collection of federal regulations seeking to maintain the confidentiality of individually identifiable health information.370 For some public offices, the Privacy Rule will alter the manner in which they respond to public records requests.371 The most commonly asked questions are addressed in the following discussion.

HIPAA DEFINITIONS. The Privacy Rule protects all “individually identifiable health information,” which is called “protected health information,” or “PHI.”372 PHI is information that could reasonably lead to the identification of an individual, either by itself or in combination with other reasonably available information.373 The HIPAA regulations, including the Privacy Rule, apply only to “covered entities,” of which there are only three: (1) healthcare providers; (2) a health plan; or (3) a healthcare clearinghouse.374

Generally, a “healthcare provider” is any entity providing mental or health services and electronically transmitting individually identifiable health information for any financial or administrative purpose subject to HIPAA.375 A “health plan” is an individual or group plan that provides, or pays the cost of, medical care, such as an HMO.376 A “healthcare clearinghouse” is any entity that processes health information from one format into another for particular purposes, such as a billing service.377 Legal counsel should be consulted if there is uncertainty about whether or not a particular public office is a “covered entity” for purposes of HIPAA.

PHI IN PERSONNEL FILES. The HIPAA Privacy Rule does not affect release of PHI contained in employment records that are held by a covered entity in its sole role as an employer.378 So, when handling a public records request, a covered entity need not redact PHI from the personnel file or obtain the employee’s authorization before releasing the records. However, other state and/or federal catch-all exceptions may still apply.379

369 Special thanks to the author of this section: Socrates H. Tuch, Esq., Asst. Counsel/Privacy Officer, Office of the General Counsel, Ohio Dept. of Health. 370 45 C.F.R. Parts 160 and 164. 371 But cf., Texas Attorney General Open Records Decision No. 681, http://www.oag.state.tx.us (Texas attorney general concluded that HIPAA has no impact on disclosure pursuant to that state’s open records law). 372 45 C.F.R. 160.103. 373 45 C.F.R. 160.103. 374 45 C.F.R. 160.103. 375 45 C.F.R. 160.103. 376 45 C.F.R. 160.103. 377 45 C.F.R. 160.103. 378 45 C.F.R. 160.103. 379 See, “Exceptions to Disclosure: The Catch-all Exception,” page 54.

Auditor of State Mary Taylor, CPA · Ohio Attorney General, Marc Dann Page 57 Ohio Sunshine Laws 2008: An Open Government Resource Manual LAW ENFORCEMENT INVESTIGATIONS. Basically, where the PHI is necessary to further a legitimate law enforcement purpose, a covered entity may release PHI to law enforcement officials without the patient’s prior authorization.380

Specifically, the situations in which such release is permissible are as follows: (1) where state or federal law requires the release, including a valid court order, warrant, or subpoena; (2) to identify or locate a suspect, fugitive, material witness, or missing person; (3) when a crime victim is unable to consent, the PHI is needed to determine whether a crime has been committed and the PHI will not be used against the victim, the investigation will be materially and adversely affected by waiting for the victim to consent, and the covered entity determines, in its professional judgment, that release will serve the victim’s best interests; (4) when a crime is suspected in a person’s death; (5) where the PHI constitutes evidence of a crime that occurred on the covered entity’s premises; (6) in an emergency if necessary to alert law enforcement to the commission of a crime, the location of the crime or the victims, and the identity, description, or location of the alleged perpetrator.381

PHI IN DISPATCH CALLS. A covered entity, such as an EMS organization, may disclose PHI where disclosure is necessary to prevent or lessen a serious and imminent threat to the safety and health of an individual or the public and disclosure is made to persons reasonably able to prevent or lessen the threat, including the target of the threat if appropriate.382 So, for instance, police and EMS calls that disclose a patient’s medical condition in order to dispatch appropriate medical or emergency assistance do not violate HIPAA’s Privacy Rule.383

Additionally, a covered entity is permitted to use or disclose PHI for its own treatment, payment, and health care operations, as well as for the treatment activities of a health care provider.384 But a covered entity must restrict the scope of the disclosure to the minimum necessary to accomplish the intended purpose.385

RELEASING PHI TO THE MEDIA. As a matter of routine, a covered entity may release “directory information” about a patient without running afoul of HIPAA’s Privacy Rule.386 Basically, when the requester asks for the individual by name, a covered entity may disclose the patient’s name, the patient’s location in the facility, and a description of the patient’s general condition so long as it does not communicate specific medical information.387 However, the individual must be given the opportunity to restrict or opt out of such directory disclosures prior to the disclosure or use.388

380 45 C.F.R. 164.512(f). 381 45 C.F.R. 164.512(f). 382 45 C.F.R. 164.512(j). 383 45 C.F.R. 164.512(j). 384 45 C.F.R. 164.506; but see 45 C.F.R. 164.508(a)(2) and (3) (uses and disclosures of psychotherapy notes and PHI for marketing purposes may require prior authorization from the subject of the PHI). 385 45 C.F.R. 164.502(b). 386 45 C.F.R. 164.510(a)(1). 387 45 C.F.R. 164.510(a)(1). 388 45 C.F.R. 164.510(a)(2).

Page 58 Auditor of State Mary Taylor, CPA · Ohio Attorney General, Marc Dann Ohio Sunshine Laws 2008: An Open Government Resource Manual But, in an emergency situation, when the patient is unable to object or it is not practicable to offer the opportunity to object, if the covered entity determines that disclosure is in the patient’s best interest, it may disclose directory information.389 Any such disclosure must be consistent with the patient’s known preferences, and the patient must be given the opportunity to opt out of the disclosure as soon as practicable.390

389 45 C.F.R. 164.510(a)(3); see 45 C.F.R. 164.510(a)(1). 390 45 C.F.R. 164.510(a)(3); see 45 C.F.R. 164.510(a)(1).

Auditor of State Mary Taylor, CPA · Ohio Attorney General, Marc Dann Page 59 Ohio Sunshine Laws 2008: An Open Government Resource Manual  Exceptions to Disclosure: Is Copyright a Catch-all Exception?391

Public offices are frequently faced with the quandary of whether or not to release copyrighted materials in response to a public records request. For instance, in response to a public records request, must a county building department duplicate copyrighted blueprints, that were submitted for approval as required by law? Or, does the federal copyright law constitute a “catch-all” exception that prohibits the public office from disclosing the copyrighted material?

As discussed earlier, the “catch-all” exception recognizes other provisions of state or federal law that prohibit disclosure of certain information or records.392 However, in a 1993 opinion, the Ohio Attorney General concluded that copyright law does not prohibit disclosure of protected materials, and so it does not constitute a “catch-all” exception.393 Later, the Ohio Supreme Court concluded that the federal copyright law does not constitute an exception from mandatory disclosure where the requester’s intended use is not commercial.394

Copyright Definitions. Federal copyright law is designed to protect “original works of authorship,”395 which may exist in one of several specified categories. Specifically, works of authorship include the following categories of materials: literary works; musical works (including any accompanying words); dramatic works (including any accompanying music); pantomimes and choreographic works; pictorial, graphic, and sculptural works; motion pictures and other audiovisual works; sound recordings; and architectural works.396

Protections Granted. From the moment of creation, the author of an original work possesses exclusive rights to publish, copy, and distribute the work.397 The federal copyright law does not, however, provide to the author the right to keep the work confidential.398 Indeed, copyrighted works are not protected from inspection by the public, so it is seemingly inappropriate to characterize copyrighted works in the possession of a public office as records “the release of which is prohibited by…federal law.”399

Moreover, the policy underlying the copyright law is “to encourage the broad dissemination of copyrighted works, albeit in a manner which protects the economic interest of the author.”400 Because the copyright law does not prohibit disclosure of protected materials, nor does it grant

391 Sections 107 and 109(a), Title 17, U.S. Code. 392 See, “Exceptions to Disclosure: The Catch-all Exception,” page 54. 393 1993 Ohio Atty. Gen. Ops. No. 93-010. 394 State ex rel. Rea v. Ohio Dept. of Educ’n, 81 Ohio St. 3d 527, 601-02, 1998 Ohio 334, 692 N.E.2d 596 (1998) (“Relators have no intention of copying these materials for commercial resale purposes.”) 395 17 U.S.C. § 102(a). 396 17 U.S.C. § 102(a)(1)-(8). 397 Harper & Row, Publishers,,Inc. v. Nation Enterprises, 471 U.S. 539, 546-47 (1985) (“Under the Copyright Act, these rights -- to publish, copy, and distribute the author's work -- vest in the author of an original work from the time of its creation.”) 398 1993 Ohio Atty. Gen. Ops. No. 93-010. 399 1993 Ohio Atty. Gen. Ops. No. 93-010. 400 1993 Ohio Atty. Gen. Ops. No. 93-010.

Page 60 Auditor of State Mary Taylor, CPA · Ohio Attorney General, Marc Dann Ohio Sunshine Laws 2008: An Open Government Resource Manual copyrighted works confidentiality, such works are not “records the release of which is prohibited by state or federal law,” as required by the catch-all exception.401 Accordingly, at least according to present Ohio law, the catch-all exception will not give a public office an excuse to withhold a public record that is copyrighted.

“Fair Use” of Copyrighted Works. Copyright law does permit “fair use” of a copyrighted work, which use does not infringe on the author’s exclusive rights.402 Under the fair use exception, reproduction or copying of a protected work does not infringe the copyright “where the material will be used for purposes such as criticism, research, comment, and for other educational or non-profit purposes that are not commercial in nature.”403 As the doctrine of fair use is "an equitable rule of reason,"404 the issue, essentially, is whether the public interest in the free flow of information outweighs the copyright holder’s interest in exclusive control over the protected work.405

In determining whether the intended use of the protected work is “fair use,” a court must consider these factors, which are not exclusive: (1) the purpose and character of the use, including whether the intended use is commercial or for nonprofit educational purposes; (2) the nature of the protected work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the intended use upon the market for or value of the protected work.406 The fourth factor, whether the use will negatively impact the market for the work, is generally considered to be "the single most important element of fair use.”407

The Ohio Supreme Court has addressed the relationship between public records disclosure of a copyrighted work only once, and in that case concluded that the state department of education must disclose portions of previously-administered state proficiency tests to a high school student. 408 Without detailed analysis, the Court concluded that the intended use was “fair use” because the requester had “no intention of copying these materials for commercial resale purpose.”409

401 1993 Ohio Atty. Gen. Ops. No. 93-010. 402 17 U.S.C. § 107. 403 State ex rel. Rea v. Ohio Dept. of Educ’n, 81 Ohio St. 3d 517, 602, 1998 Ohio LEXIS 1195 (1998) (federal copyright law does not constitute an exception to disclosure of proficiency exams previously administered to public school students). 404 Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 560, 85 L. Ed. 2d 588, 105 S. Ct. 2218 (1985). 405 Lamb v. Starks, 949 F. Supp. 753, 757 (N.D. Cal. 1996) (quoting Hustler Magazine, Inc. v. Moral Majority, Inc., 796 F.2d 1148, 1151 (9th Cir. 1986)). 406 17 U.S.C. § 107 (1)-(4). 407 Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 566, 85 L. Ed. 2d 588, 105 S. Ct. 2218 (1985). 408 State ex rel. Rea v. Ohio Dept. of Educ’n, 81 Ohio St. 3d 527, 1998 Ohio LEXIS 1195 (1998). 409 State ex rel. Rea v. Ohio Dept. of Educ’n, 81 Ohio St. 3d 527, 602, 1998 Ohio LEXIS 1195 (1998). Compare Ass’n of American Medical Colleges v. Cuomo, 928 F.2d 519 (2nd Cir. 1991) (remanded to determine whether state statute requiring testing agency to file copyrighted exams for public disclosure constitutes “fair use” where (1) use served important public interests, but exam was (2) unpublished, creative work, (3) the amount and substantiality of disclosure required is 100%, and (4) whether disclosure would seriously impair the value of exam was in dispute).

Auditor of State Mary Taylor, CPA · Ohio Attorney General, Marc Dann Page 61 Ohio Sunshine Laws 2008: An Open Government Resource Manual  Exceptions to Disclosure: Medical Records

Records that pertain to a patient’s medical history, diagnosis, prognosis, or medical condition and that were generated and maintained in the process of medical treatment are not subject to disclosure under the Public Records Act.410 The record must have both of these characteristics to be exempt from public disclosure under this exception.411

Additionally, a public office must be aware of other provisions of law that may impact release of medically related information, such as the federal HIPAA (Health Insurance Portability and Accountability Act).412 Such laws may constitute “catch-all exceptions,”413 which mandate non-disclosure. For a discussion of the most frequently asked HIPAA questions, please see “Exceptions to Disclosure: The Catch-all Exception – HIPAA”, page 57, above.

BIRTH AND DEATH RECORDS, HOSPITAL RECORDS. Birth records and death records are not “medical records”414 for purposes of the Public Records Act. Similarly, the fact of admission to or discharge from a hospital is not a “medical record.”415 Moreover, a public office is permitted to disclose this information notwithstanding the federal HIPAA (Health Insurance Portability and Accountability Act of 1996.)416

PSYCHOLOGICAL REPORTS. The report of a medical professional, including a mental health professional, is not a “medical record” where such a report was generated for employment or litigation purposes rather than in the process of medical treatment.417 However, other statutes, such as the federal Americans with Disabilities Act,418 the federal Family and Medical Leave Act,419 or the federal HIPAA (Health Insurance Portability and Accountability Act)420 may otherwise prohibit release of this information.421

410 Ohio Rev. Code Ann. §§ 149.43(A)(1)(a) and (A)(3); Bartley v. Little, 2000 Ohio App. LEXIS 6238 (5th Dist. Dec. 28, 2000). 411 Ohio Rev. Code Ann. § 149.43(A)(3); State ex rel. Strothers v. Wertheim, 80 Ohio St.3d 155, 684 N.E.2d 1239 (1997); 1999 Ohio Atty. Gen. Ops. No. 99-006. But cf., State ex rel. Cincinnati Enquirer v. Adcock, 2004-Ohio-7130, 2004 Ohio App. LEXIS 6772 (1st Dist., Dec. 30, 2004) citing State ex rel, McCleary v. Roberts, 88 Ohio St.3d 365, 2000-Ohio-345, 725 N.E.3d 1144 (children’s medical information not a public record). 412 45 C.F.R. Parts 160 and 164. See also, “The Catch-all Exception: HIPAA,” page 57. 413 See, “Exceptions to Disclosure: The Catch-all Exception,” page 54. 414 Ohio Rev. Code Ann. § 149.43(A)(1)(a) and (A)(3). 415 Ohio Rev. Code Ann. § 149.43(A)(1)(a) and (A)(3). 416 45 C.F.R. Parts 160 and 164. See also, “The Catch-all Exception: HIPAA,” Re: Disclosure to Media, page 58. 417 State ex rel. Multimedia, Inc. v. Snowden, 72 Ohio St.3d 141, 144-45, 647 N.E.2d 1374, 1379 (1995) (a police psychologist report obtained to assist in the police hiring process is not a medical record); State of Ohio v. Hall, 141 Ohio App.3d 561, 752 N.E.2d 318 (4th Dist. Mar. 21, 2001) (psychiatric reports compiled solely to assist court with competency to stand trial determination are not medical records); State ex rel. DeRemer v. Waller, No. 1997CA00055, 1997 Ohio App. LEXIS 1909 (5th Dist. Mar. 17, 1997). See, also, State ex rel. Richard v. Cleveland Metro. Health Ctr., 84 Ohio App.3d 142, 616 N.E.2d 549 (8th Dist. 1992); State ex rel. Nat’l Broadcasting Co., Inc. v. City of Cleveland, 82 Ohio App.3d 202, 214, 611 N.E.2d 838, 845-46 (8th Dist. 1992); State ex rel. Toledo Blade Co. v. Telb, 50 Ohio Misc.2d 1, 552 N.E.2d 243 (1990). But, see, Sheely v. Norris, Nos. 92-P-0027, 92-P-0028, 1993 Ohio App. LEXIS 5205 (11th Dist. Oct. 7, 1993) (emergency room records in custody of prosecutor are not public records.) 418 See 42 U.S.C. §§ 12101 et seq. (1990). 419 See 29 U.S.C. §§ 2601 et seq. (1993).

Page 62 Auditor of State Mary Taylor, CPA · Ohio Attorney General, Marc Dann Ohio Sunshine Laws 2008: An Open Government Resource Manual EMS RUN SHEETS. When a run sheet created and maintained by a county emergency medical services (EMS) organization documents treatment of a living patient, the EMS organization may redact information that pertains to the patient’s medical history, diagnosis, prognosis, or medical condition.422 Although the organization may not redact patients’ names, addresses, and other non-medical personal information relying on the medical records exception,423 it may be required to redact that information under HIPAA.424

420 45 C.F.R. Parts 160 and 164. 421 See, “Exceptions to Disclosure: The Catch-all Exception – HIPAA,” page 57. 422 1999 Ohio Atty. Gen. Ops. No. 99-006. 423 1999 Ohio Atty. Gen. Ops. No. 99-006. 424 See, “Exceptions to Disclosure: The Catch-all Exception – HIPAA,” page 57.

Auditor of State Mary Taylor, CPA · Ohio Attorney General, Marc Dann Page 63 Ohio Sunshine Laws 2008: An Open Government Resource Manual  Exceptions to Disclosure: Trial Preparation Records

Records containing information that was specifically compiled in reasonable anticipation of, or in defense of, a civil or criminal action or proceeding, including the independent thought processes and personal trial preparation of an attorney, are not subject to mandatory disclosure under the Public Records Act.425 Such records are “trial preparation records” and a public office may withhold them from disclosure until all actions, trials, and proceedings in the case have concluded.426

PROSECUTORS’ FILES. Attorney trial notes and legal research are “trial preparation records,” which may be withheld from disclosure.427 Virtually everything in a prosecutor’s file during an active prosecution is either material compiled in anticipation of a specific criminal proceeding or personal trial preparation of the prosecutor, and is therefore exempt from public disclosure as “trial preparation” material.428 However, unquestionably non-exempt materials do not transform into “trial preparation records” simply by virtue of being held in a prosecutor’s file.429

Before 1994, courts often found factual reports and witness statements to be subject to disclosure because they did not meet the definition of trial preparation records.430 Now, it appears that only routine offense and incident reports are subject to release while the case is active.431

SETTLEMENT AGREEMENTS AND OTHER CONTRACTS. Where a governmental entity is party to a settlement agreement, the trial preparation records exception will not permit the record to be

425 Ohio Rev. Code Ann. § 149.43(A)(4). State ex rel. Police Officers for Equal Rights v. Lashutka, 72 Ohio St.3d 185, 648 N.E.2d 808 (1995); State ex rel. Nat’l Broadcasting Co. v. City of Cleveland, 57 Ohio St.3d 77, 566 N.E.2d 146 (1991) (“NBC II”); State ex rel. Coleman v. City of Cincinnati, 57 Ohio St.3d 83, 566 N.E.2d 151 (1991); State ex rel. Renfro v. Cuyahoga County Dep’t of Human Servs., 54 Ohio St.3d 25, 560 N.E.2d 230 (1990); State ex rel. Nat’l Broadcasting Co. v. City of Cleveland, 38 Ohio St.3d 79, 526 N.E.2d 786 (1988) (“NBC I”); Barton v. Shupe, 37 Ohio St.3d 308, 525 N.E.2d 812 (1988). 426 State ex rel. Steckman v. Jackson, 70 Ohio St.3d 420, 432, 639 N.E.2d 83, 92 (1994). 427 State ex rel. Nix v. City of Cleveland, 83 Ohio St.3d 379, 700 N.E.2d 12 (1998). 428 State ex rel. Steckman v. Jackson, 70 Ohio St.3d 420, 432, 639 N.E.2d 83, 92 (1994); State ex rel. Towler v. O’Brian, 2005-Ohio-363, 2005 Ohio App. LEXIS 342 (10th Dist., Feb. 3, 2005). 429 State ex rel. WLWT-TV-5 v. Leis, 77 Ohio St.3d 357, 673 N.E.2d 1365 (1996). See also, State ex rel. Rasul-Bey v. Onunwor, 94 Ohio St.3d 119, 760 N.E.2d 421 (2002) (criminal defendant’s entitled to immediate release of initial incident reports.) 430 See, e.g., State ex rel. Morales v. City of Cleveland, 67 Ohio St.3d 573, 621 N.E.2d 403 (1993); Sheeley v. Norris Nos. 92- P-0027, 92-P-0028, 1993 Ohio App. LEXIS 5205 (11th Dist. Oct. 7, 1993); State ex rel. Coleman v. City of Cincinnati, 57 Ohio St.3d 83, 566 N.E.2d 151 (1991); State ex rel. Zuern v. Leis, 56 Ohio St.3d 20, 564 N.E.2d 81 (1990) (check-list offense report forms, witness and detective statements describing the offense, and photographs of the crime scene are not trial preparation records); Pinkava v. Corrigan, 64 Ohio App.3d 499, 581 N.E.2d 1181 (8th Dist. 1990) (victim’s statement reporting offense to police is public record); State ex rel. Nat’l Broadcasting Co. v. City of Cleveland, 82 Ohio App.3d 202, 611 N.E.2d 838 (8th Dist. 1992); State ex rel. Jells v. City of Cleveland, No. 62678, 1992 WL 369893 (8th Dist. Dec. 3, 1993), aff’d, 67 Ohio St.3d 436, 619 N.E.2d 686 (1993) (witness statements obtained during course of investigations were not trial preparation records.) Under Steckman, basically any information in the prosecutor’s file constitutes trial preparation. 431 State ex rel. Rasul-Bey v. Onunwor, 94 Ohio St.3d 119, 760 N.E.2d 421 (2002) (criminal defendant’s limitation to discovery only does not apply to initial incident reports, which are subject to immediate release upon request); State ex rel. Steckman v. Jackson, 70 Ohio St.3d 420, 639 N.E.2d 83 (1994). See also, “Law Enforcement Investigations,” page 68.

Page 64 Auditor of State Mary Taylor, CPA · Ohio Attorney General, Marc Dann Ohio Sunshine Laws 2008: An Open Government Resource Manual withheld.432 But the parties are entitled to redact any information within the attorney-client privilege.433 Additionally, a provision that the agreement shall be kept confidential is void and unenforceable because a contractual provision will not supersede Ohio public records law.434

432 State ex rel. Cincinnati Enquirer v. Dupuis, 98 Ohio St.3d 126, 2002 Ohio 7041, 781 N.E.2d 163 (2002); State ex rel. Kinsley v. Berea Bd. of Educ., 64 Ohio App.3d 659, 582 N.E.2d 653 (8th Dist. 1990), cited with approval in State ex rel. Findlay Publ’g Co. v. Hancock County Bd. of Cmsrs., 80 Ohio St.3d 134, 684 N.E.2d 1222 (1997); State ex rel. Sun Newspapers v. City of Westlake Bd. of Educ., 76 Ohio App.3d 170, 601 N.E.2d 173 (8th Dist. 1991) cited with approval in State ex rel. Findlay Publ’g Co. v. Hancock County Bd. of Cmsrs., 80 Ohio St.3d 134, 684 N.E.2d 1222 (1997). 433 State ex rel. Sun Newspapers v. City of Westlake Bd. of Educ., 76 Ohio App.3d 170, 601 N.E.2d 173 (8th Dist. 1991); but, see, Covington v. Backner, Case No. 98CVH-07-5242 (Franklin Cty. C.P. June 1, 2000) (attorney-client privilege was waived when staff attorney had reviewed, duplicated, and inadvertently produced documents to defendants during discovery request). See also, “The Catch-all Exception: Attorney-Client Privilege,” page 54. 434 Keller v. City of Columbus, 100 Ohio St.3d 192, 2003 Ohio 5599, 797 N.E.2d 964 (2003); State ex rel. Findley Publ’g Co. v. Hancock County Bd. of Commissioners, 80 Ohio St.3d 134, 684 N.E.2d 1222 (1997). See generally, “Contractual Confidentiality,” page 86.

Auditor of State Mary Taylor, CPA · Ohio Attorney General, Marc Dann Page 65 Ohio Sunshine Laws 2008: An Open Government Resource Manual  Exceptions to Disclosure: Residential and Familial Information

The “residential and familial information” of peace officers,435 firefighters,436emergency medical technicians437 (EMTs), parole officers, prosecuting attorneys, assistant prosecuting attorneys, correctional employees, and youth services employees is expressly exempt from mandatory disclosure under the Public Records Act.438 Under this exception, “residential and familial information “means any information that discloses any of the following about individuals in those employment categories:

¾ Residential street address, except that of a prosecuting attorney (the state and political subdivision are still public record) ¾ Information compiled by an employee assistance program (see also, Ohio Rev. Code § 3701.041) ¾ Social Security number ¾ Residential telephone number ¾ Bank account number ¾ Debit/charge/credit card numbers ¾ Emergency telephone number ¾ Medical information ¾ Beneficiaries’ names ¾ Voluntary payroll deductions ¾ Name, residential address, employer name and address, social security number, residential telephone number, bank account number, debit/charge/credit card numbers, or emergency telephone number of the spouse, former spouse, or children.

Also expressly exempt from the definition of “public record” is a photograph of a peace officer who works undercover or plain clothes assignments.439 In addition, certain residential addresses of employees of a public children services agency or private child placing agency and that employee’s family members are exempt from disclosure.440

JOURNALIST EXCEPTION. A journalist may obtain the residential street address for a peace officer, parole officer, prosecuting attorney, assistant prosecuting attorney, correctional

435 Ohio Rev. Code Ann. § 149.43(A)(7), see § 109.71 for a listing of those who qualify as peace officers. 436 Ohio Rev. Code Ann. § 149.43(A)(7). 437 Ohio Rev. Code Ann. § 149.43(A)(7) and § 4765.01. 438 Ohio Rev. Code Ann. § 149.43(A)(7). 439 Ohio Rev. Code Ann. § 149.43(A)(7)(g). See, also, State ex rel. Keller v. Cox, 85 Ohio St.3d 279, 707 N.E.2d 931 (1999) (information is also protected by constitutional right to privacy and “good sense” because peace officers’ personnel records should not be available to a defendant who might use the information to achieve “nefarious ends.”) (adopting reasoning of Kallstrom v. Columbus, 136 F.3d 1055 (6th Cir. 1998) (“Kallstrom I”)). See, also, 1999 Ohio Atty. Gen. Ops. No. 99-006 (two-part test to determine when personal information is protected from disclosure); Smith v. City of Dayton, 68 F. Supp.2d 911 (S.D. Ohio 1999) (release of police officer’s home address, unlisted phone number, brother’s name, address, and phone number to newspaper without notice violated officer’s substantive and procedural due process rights); Kallstrom v. City of Columbus, 165 F. Supp.2d 686 (S.D. Ohio 2001) (“Kallstrom II”). 440 Ohio Rev. Code Ann. §2151.142.

Page 66 Auditor of State Mary Taylor, CPA · Ohio Attorney General, Marc Dann Ohio Sunshine Laws 2008: An Open Government Resource Manual employee, youth services employee, firefighter, or an EMT, as well as the name and address of the employer of that person’s spouse, former spouse, or children, if that employer is a public office.441 To obtain this information, however, the journalist must submit a written request,442 which includes the journalist’s name and title, the employer’s name and address, and a statement that release of the information is in the public interest.443

In addition to the exception for the residential and familial information of certain categories of public employees discussed above, the Ohio Supreme Court has concluded that the home addresses of public employees in general may not be public records that a public office is required to release.444 The analysis is whether the address is a “record,” in that it documents “the organization, functions, policies, decisions, procedures, operations, or other activities of the office445.” For example, if an employee is required to live in a certain area as a condition of employment, the portion of the home address that documents compliance with that condition is a “record.” If the address is kept by the office purely for administrative convenience, however, it does not meet the definition of a “record” that a public office is required to release.

Keep in mind that, when a public employee’s home address is determined not to be a record, and thus not subject to mandatory release, the public office is obligated under Ohio’s Privacy Act to “(t)ake reasonable precautions to protect personal information …from unauthorized modification, destruction, use, or disclosure.446”

441 Ohio Rev. Code Ann. § 149.43(B)(9); see also journalist exception for employees of public children services agency or private child placing agency §2151.142(D). But, see, State ex rel. Keller v. Cox, 85 Ohio St.3d 279, 707 N.E.2d 931 (1999) (good sense dictates personal information should not be released to person who might use it to achieve “nefarious ends”); Kallstrom v. Columbus, 136 F.3d 1055 (6th Cir. 1998) (“Kallstrom I”) (personal information of law enforcement officers held to be protected under constitutional right to privacy where release would cause substantial risk of serious bodily injury or death and release does not serve compelling interest). 442 See generally, “The Request for Records: Written Request,” page 49. 443 Ohio Rev. Code Ann. § 149.43(B)(9). 444 State ex rel. Dispatch Printing Co. v. Johnson, 106 Ohio St. 3d 160, 2005-Ohio-4384 (2005). 445 Ohio Rev. Code Ann. §149.011(G). 446 Ohio Rev. Code Ann. §1347.05(G). See also, definition of “personal information” Ohio Rev. Code Ann. §1347.01(E).

Auditor of State Mary Taylor, CPA · Ohio Attorney General, Marc Dann Page 67 Ohio Sunshine Laws 2008: An Open Government Resource Manual  Exceptions to Disclosure: Law Enforcement Investigations

Arguably, the most complicated exception in the Public Records Act is the exception for confidential law enforcement investigatory records (the “CLEIRs” exception.) Oftentimes, this exception is mistaken as one that applies only to police investigations. In reality, the CLEIRs exception may apply to a variety of investigations, including those examining alleged violations of criminal law, civil law, and/or administrative law.447

DEFINITION. Under the CLEIRs exception, a public office may withhold any records (1) that pertain to a law enforcement matter448 of a criminal,449 quasi-criminal, civil, or administrative450 nature and (2) that, if released, would create a high probability of disclosing any of the following types of information:

¾ Identity of an uncharged suspect451 ¾ Identity of a confidential source452 ¾ Investigatory techniques or procedures453 ¾ Investigatory work product454 or ¾ Information that would endanger the life or physical safety of law enforcement personnel, a crime victim, a witness, or a confidential information source455

THE TEST. In determining whether a record constitutes a confidential law enforcement investigatory record, the courts use a two-step test.456 The record must both (1) pertain to a criminal, quasi-criminal, civil or administrative law enforcement matter, and (2) create a high probability of disclosing at least one of the five types of information highlighted above.457

447 Ohio Rev. Code Ann. § 149.43(A)(2). 448 State ex rel. Strothers v. Wertheim, 80 Ohio St.3d 155, 684 N.E.2d 1239 (1997) (records of alleged child abuse do not pertain to a law enforcement matter in the hands of county ombudsman office that has no legally mandated enforcement or investigative authority); State ex rel. Freedom Communications, Inc. v. Elida Community Fire Co., 82 Ohio St.3d 578, 697 N.E.2d 210 (1998) (investigation of alleged sexual assault conducted internally as personnel matter is not law enforcement matter.) 449 State ex rel. Police Officers for Equal Rights v. Lashutka, 72 Ohio St.3d 185, 648 N.E.2d 808 (1995). 450 State ex rel. Police Officers for Equal Rights v. Lashutka, 72 Ohio St.3d 185, 648 N.E.2d 808 (1995); State ex rel. Nat’l Broadcasting Co. v. City of Cleveland, 57 Ohio St.3d 77, 566 N.E.2d 146 (1991) (“NBC II”) (overruled on other grounds); State ex rel. Polovischak v. Mayfield, 50 Ohio St.3d 51, 552 N.E.2d 635 (1990); State ex rel. McGee v. Ohio State Bd. of Psychology, 49 Ohio St.3d 59, 550 N.E.2d 945 (1990); State ex rel. Nat’l Broadcasting Co. v. City of Cleveland, 38 Ohio St.3d 79, 83, 526 N.E.2d 786, 790 (1988) (“NBC I”); Franklin County Sheriff’s Dept. v. State Employment Relations Bd., 63 Ohio St.3d 498, 589 N.E.2d 24 (1992) (affirmed in part reversed in part and remanded to trial court). This does not include polygraph test results obtained to make hiring decisions. State ex rel. Lorain Journal v. City of Lorain, 87 Ohio App.3d 112, 621 N.E.2d 894 (9th Dist. 1993). 451 Ohio Rev. Code Ann. § 149.43(A)(2)(a). 452 Ohio Rev. Code Ann. § 149.43(A)(2)(b). 453 Ohio Rev. Code Ann. § 149.43(A)(2)(c). 454 Ohio Rev. Code Ann. § 149.43(A)(2)(c). 455 Ohio Rev. Code Ann. § 149.43(A)(2)(d). 456 State ex rel. Beacon Journal Publ’g Co. v. Maurer, 91 Ohio St.3d 54, 56, 741 N.E.2d 511, 513-14 (2001); State ex rel. Polovischak v. Mayfield, 50 Ohio St.3d 51, 52, 552 N.E.2d 635, 636-37 (1990). 457 State ex rel. Multimedia, Inc. v. Snowden, 72 Ohio St.3d 141, 647 N.E.2d 1374 (1995); State ex rel. Polovischak v. Mayfield, 50 Ohio St.3d 51, 552 N.E.2d 635 (1990).

Page 68 Auditor of State Mary Taylor, CPA · Ohio Attorney General, Marc Dann Ohio Sunshine Laws 2008: An Open Government Resource Manual STEP ONE: A LAW ENFORCEMENT MATTER. For the CLEIRs exception to apply, the record at issue must first pertain to a law enforcement matter of a criminal, quasi-criminal, civil, or administrative nature.458 In order to do so, the following three questions must be answered affirmatively. If any one of them is answered in the negative, the record cannot be withheld in reliance on the CLEIRs exception.

The three questions: 1. Was the investigation initiated upon specific suspicion of wrongdoing?459 2. Does the alleged conduct violate law?460 and 3. Does the public office have the authority to investigate or enforce the law allegedly violated?461

¾ Specific Suspicion. The investigation must have been initiated upon a “specific suspicion” of misconduct or wrongdoing.462 In determining whether there is a “specific suspicion,” it is irrelevant that the investigation is “routine,” so longs as the alleged conduct violates the law.

¾ Violation of Law. The alleged conduct must violate law, but it need not necessarily be a violation of criminal law.463 So long as the conduct is prohibited by statute or administrative rule,464 whether the punishment is criminal, civil, or administrative in nature is irrelevant.465 It is not sufficient, however, for the conduct to be strictly a violation of office policies or procedures, which are not “laws.”466

¾ Authority. The public office that holds the record must have some authority to investigate or enforce the law that has allegedly been violated.467 If it does not, the record it holds does not

458 State ex rel. Multimedia, Inc. v. Snowden, 72 Ohio St.3d 141, 647 N.E.2d 1374 (1995); State ex rel. Beacon Journal Publ’g v. Maurer, 91 Ohio St.3d 54 (2001) (initial incident report of police shooting are not part of the criminal investigation subject to the confidential law enforcement investigatory records exception.) 459 See, e.g., State ex rel. Polovischak v. Mayfield, 50 Ohio St.3d 51, 552 N.E.2d 635 (1990); State ex rel. Yant v. Conrad, 74 Ohio St.3d 681, 660 N.E.2d 1211 (1996). 460 See, e.g., State ex rel. Polovischak v. Mayfield, 50 Ohio St.3d 51, 552 N.E.2d 635 (1990); State ex rel. Yant v. Conrad, 74 Ohio St.3d 681, 660 N.E.2d 1211 (1996). 461 State ex rel. Strothers v. Wertheim, 80 Ohio St.3d 155, 684 N.E.2d 1239 (1997) (records of alleged child abuse do not pertain to a law enforcement matter in the hands of county ombudsman office that has no legally mandated enforcement or investigative authority); State ex rel. Freedom Communications, Inc. v. Elida Community Fire Co., 82 Ohio St.3d 578, 697 N.E.2d 210 (1998) (investigation of alleged sexual assault conducted internally as personnel matter is not law enforcement matter.) 462 State ex rel. Ohio Patrolmen’s Benevolent Assn. v. City of Mentor, 89 Ohio St.3d 440, 2000 Ohio 214, 732 N.E.2d 969 (2000); State ex rel. Yant v. Conrad, 74 Ohio St.3d 681, 660 N.E.2d 1211(1996) (quoting, State ex rel. Polovischak v. Mayfield, 50 Ohio St.3d 51, 552 N.E.2d 635 (1990)). 463 Ohio Rev. Code Ann. § 149.43(A)(2). See, e.g., State ex rel. Yant v. Conrad, 74 Ohio St.3d 681, 660 N.E.2d 1211 (1996); State ex rel. Polovischak v. Mayfield, 50 Ohio St.3d 51, 552 N.E.2d 635 (1990); State ex rel. McGee v. Ohio State Bd. of Psychology, 49 Ohio St.3d 59, 550 N.E.2d 945 (1990). 464 See, e.g., State ex rel. Polovischak v. Mayfield, 50 Ohio St.3d 51, 552 N.E.2d 635 (1990); State ex rel. McGee v. Ohio State Bd. of Psychology, 49 Ohio St.3d 59, 550 N.E.2d 945 (1990). 465 Ohio Rev. Code Ann. § 149.43(A)(2). 466 State ex rel. Freedom Communications, Inc. v. Elida Community Fire Co., 82 Ohio St.3d 578, 1998 Ohio 411, 697 N.E.2d 210 (1998) (R.C. 149.43(A)(2) refers, and not to employment or personnel matters ancillary to law enforcement matters); Toledo Police Patrolman’s Assn. Local 10 v. city of Toledo, 2000 Ohio App. LEXIS 875 (6th Dist. Mar. 10, 2000). 467 State ex rel. Strothers v. Wertheim, 80 Ohio St.3d 155, 158, 684 N.E.2d 1239 (1997).

Auditor of State Mary Taylor, CPA · Ohio Attorney General, Marc Dann Page 69 Ohio Sunshine Laws 2008: An Open Government Resource Manual pertain to a law enforcement matter, which means it fails the first part of the two-part test, and the CLEIRs exception is inapplicable.468

¾ Routine offense or incident reports469 are subject to immediate release upon request.470 The Ohio Supreme Court has concluded that such routine records do not satisfy Step One for the CLEIRs exception.471 Additionally, none of the information explained in Step Two, below, can be redacted from an initial incident report.472

¾ 911 tapes are also subject to immediate release upon request, even if in the possession of the prosecutor, and the tapes may not be redacted for any reason.473 However, disclosure of information obtained from the database that serves the public safety answering point of a 911 system is prohibited by statute.474

STEP TWO: HIGH PROBABILITY. After satisfying Step One (above), for the CLEIRs exception to apply, disclosure of the record must also create a high probability of revealing at least one of the following five types of information 475

¾ Uncharged Suspect. A person who has not been arrested or indicted for the offense to which the record pertains is an “uncharged suspect.”476 Where disclosure of a record would identify an uncharged suspect,477 the office may redact any information that would serve to identify that suspect before releasing the file.478 Where the file is inextricably intertwined with the suspect’s identity such that redacting will fail to protect the identity, the entire file

468 State ex rel. Strothers v. Wertheim, 80 Ohio St.3d 155, 158, 684 N.E.2d 1239 (1997). 469 See generally, “Police Offense and Incident Reports,” page 81. 470 State ex rel. Steckman v. Jackson, 70 Ohio St.3d 420, paragraph five of the syllabus, 639 N.E.2d 83 (1994). 471 State ex rel. Beacon Journal Publ’g Co. v. Mauer, 91 Ohio St.3d 54, 741 N.E.2d 511 (2001) (Cook, J., dissenting). See also, State ex rel. Rasul-Bey v. Onunwor, 94 Ohio St.3d 119, 760 N.E.2d 421 (criminal defendant’s limitation to discovery does not apply to initial incident reports, which are subject to immediate release upon request); State ex rel. Steckman v. Jackson, 70 Ohio St.3d 420, 639 N.E.2d 83 (1994); State ex rel. Kim v. Wachenschwanz, 93 Ohio St.3d 586, 767 N.E.2d 367 (2001) (log sheets, time sheets, and police reports comparable to routine incident reports.) 472 State ex rel. Beacon Journal Publ’g Co. v. Mauer, 91 Ohio St.3d 54, 741 N.E.2d 511 (2001). But see, State ex rel. Beacon Journal Publ’g Co. v. Akron, 104 Ohio St. 3d 399, 2004-Ohio-6557, 819 N.E.2d 1087 (2004) (“in Maurer, we did not adopt a per se rule that all police offense and incident reports are subject to disclosure notwithstanding the applicability of any exemption.”) 473 State ex rel. Dispatch Printing Co. v. Morrow County Prosecutor’s Office, 105 Ohio St.3d 172, 2005-Ohio-685, 824 N.E.2d 64 (2005); State ex rel. Cincinnati Enquirer v. Hamilton County, 75 Ohio St.3d 374, 378, 662 N.E.2d 334, 337 (1996). 474 Ohio Rev. Code Ann. §§ 4931.49(F) and 4931.99(E). 475 State ex rel. Multimedia v. Snowden, 72 Ohio St. 3d 141 (1995). 476 State ex rel. Moreland v. City of Dayton, 67 Ohio St.3d 129, 616 N.E.2d 234 (1993). See, also, State ex rel. Polovischak v. Mayfield, 50 Ohio St.3d 51, 552 N.E.2d 635 (1990); State ex rel. Thompson Newspapers, Inc. v. Martin, 47 Ohio St.3d 28, 546 N.E.2d 939 (1989); State ex rel. Outlet Communications, Inc. v. Lancaster Police Dept., 38 Ohio St.3d 324, 528 N.E.2d 175 (1988). 477 State ex rel. Master v. City of Cleveland, 76 Ohio St.3d 340, 667 N.E.2d 974 (1996); State ex rel. Master v. City of Cleveland, 75 Ohio St.3d 23, 661 N.E.2d 180 (1996); State ex rel. Thompson Newspapers, Inc. v. Martin, 47 Ohio St.3d 28, 546 N.E.2d 939 (1989); State ex rel. Outlet Communications, Inc. v. Lancaster Police Dept., 38 Ohio St.3d 324, 528 N.E.2d 175 (1988); State ex rel. Plain Dealer Publ’g Co. v. Lesak, 9 Ohio St.3d 1, 457 N.E.2d 821(1984); State ex rel. Musial v. City of North Olmsted, 2005-Ohio-95, 2005 Ohio App. LEXIS 76 (8th Dist., Jan. 7, 2005). 478 But, see, State ex rel. Beacon Journal Publ’g Co. v. Mauer, 91 Ohio St.3d 54, 741 N.E.2d 511 (2001) (name of uncharged suspect cannot be redacted from initial incident report form.)

Page 70 Auditor of State Mary Taylor, CPA · Ohio Attorney General, Marc Dann Ohio Sunshine Laws 2008: An Open Government Resource Manual may be withheld.479 And the passage of time is not relevant, so, information identifying an uncharged suspect may be redacted regardless of how much time has passed.480

It is clear that just because the suspect has been accurately identified in media coverage, information identifying the uncharged suspect may still be redacted from the public record.481

¾ Confidential Source. Where a witness or other source has been reasonably promised confidentiality, the public office may redact identifying information from the public record before release.482 For confidentiality to be “reasonably promised,” it must have been based on an individualized determination that the promise was necessary to further the purpose of the investigation.483 Automatic promises of confidentiality, whether made pursuant to a policy statement or routine administrative procedure, are not “reasonable” promises of confidentiality.484

Only the identity of the confidential source may be redacted; the information provided by that source may still have to be released. But, where the identity is inextricably intertwined with the investigatory file, the public office may withhold the entire file.485

Where possible, it is advisable, although not required,486 to have some writing that states the specific reasons the investigator concluded the promise was necessary in that case, including that the information could not be obtained without such a promise.

¾ Physical Safety. Information that, if released, would endanger the life or physical safety of law enforcement personnel, a crime victim, a witness, or a confidential information source may be redacted before public release of a record.487 Bare allegations or assumed

479 See, State ex rel. Master v. City of Cleveland, 76 Ohio St.3d 340, 667 N.E.2d 974 (1996). See also, State ex rel. McGee v. Ohio State Bd. of Psychology, 49 Ohio St.3d 59, 60, 550 N.E.2d 945, 947 (1990) (where exempt information is so “intertwined” with the public information as to reveal the exempt information from the context, the record itself, and not just the exempt information, may be withheld.) 480 State ex rel. Moreland v. City of Dayton, 67 Ohio St.3d 129, 616 N.E.2d 234 (1993); State ex rel. Thompson Newspapers, Inc. v. Martin, 47 Ohio St.3d 28, 546 N.E.2d 939 (1989); State ex rel. Musial v.City of North Olmsted, 2005-Ohio-95, 2005 Ohio App. LEXIS 76 (8th Dist., Jan. 7, 2005). 481 See State ex rel. WLWT-TV-5 v. Leis, 77 Ohio St.3d. 357, 673 N.E.2d 1365 (1997); State ex rel. Master v. City of Cleveland, 76 Ohio St.3d 340, 667 N.E.2d 974 (1996); State ex rel. Ohio Patrolmen’s Benevolent Assn., et al. v. City of Mentor, 89 Ohio St.3d 440, 447, 732 N.E.2d 969, 975 (2000). 482 State ex rel. Yant v. Conrad, 74 Ohio St.3d 681, 660 N.E.2d 1211 (1996); State ex rel. Toledo Blade Co. v. Telb, 50 Ohio Misc.2d 1, 552 N.E.2d 243 (1990). 483 See State ex rel. Toledo Blade Co. v. Telb, 50 Ohio Misc.2d 1, 552 N.E.2d 243 (1990). 484 State ex rel. Toledo Blade Co. v. Telb, 50 Ohio Misc.2d 1, 552 N.E.2d 243 (1990). 485 State ex rel. Master v. City of Cleveland, 76 Ohio St.3d 340, 667 N.E.2d 974 (1996). 486 State ex rel. Martin v. City of Cleveland, 67 Ohio St.3d 155, 156-57, 616 N.E.2d 886, 887 (1993) (promise of confidentiality or threat to physical safety need not be within “four corners” of document to be exempt); State ex rel. Toledo Blade Co. v. Telb, 50 Ohio Misc.2d 1, 552 N.E.2d 243 (1990). 487 State ex rel. Martin v. City of Cleveland, 67 Ohio St.3d 155, 616 N.E.2d 886 (1993) (document need not specify within the four corners the promise of confidentiality or threat to physical safety); State ex rel. Johnson v. City of Cleveland, 65 Ohio St.3d 331, 333-34, 603 N.E.2d 1011, 1013-14 (1992), overruled on different grounds by State ex rel. Steckman v. Jackson, 70 Ohio St.3d 420, 639 N.E.2d 83 (1994); State ex rel. Beckman v. Kovacic, No. 63889 (8th Dist. Feb. 5, 1993); State ex rel. Jells v. City of Cleveland, No. 62678, 1992 WL 369893 (8th Dist. Dec. 3, 1992), aff’d, 67 Ohio St.3d 436, 619 N.E.2d 686

Auditor of State Mary Taylor, CPA · Ohio Attorney General, Marc Dann Page 71 Ohio Sunshine Laws 2008: An Open Government Resource Manual conclusions that a person’s physical safety is threatened are not sufficient reasons to redact information. Rather, the danger must be self-evident.488

¾ Techniques or Procedures. Information that, if released, would disclose specific confidential investigatory techniques or procedures may be redacted before public release of a record.489 Clearly, routine investigative techniques may not be redacted under this exception.490 Rather, sophisticated investigatory techniques or procedures, as well as their results, may be redacted pursuant to this exception.491

¾ Work Product. If a law enforcement investigation is not yet “over,” information that would, if released, disclose specific investigatory work product of an investigation may be redacted before public release of the file.492 Providing a criminal defendant discovery materials as required by law does not waive any otherwise applicable exceptions to public disclosure, including the exception for work product.493

The Old Standard. Before 1994, when the Ohio Supreme Court issued its decision in State ex rel. Steckman v. Jackson, only materials that would reveal an investigator’s “deliberative and subjective analysis” of a case constituted “work product” that could be withheld from public disclosure.494 However, the Court felt that the old standard left the exception virtually meaningless.495 Accordingly, the Court clarified the meaning of “work product” in Steckman, at least as it applies to pending criminal investigations.496

The Current Standard. In Steckman, the Court established a more encompassing definition of “work product.” Under current law, materials, such as an investigator’s notes, working

(1993); State ex rel. Carpenter v. Chief of Police, No. 62482, 1992 WL 252330 (8th Dist. Sept. 17, 1992), aff’d, 66 Ohio St.3d 58, 608 N.E.2d 1080 (1993); State ex rel. Lippitt v. Kovacic, 70 Ohio App.3d 525, 591 N.E.2d 422 (8th Dist. 1991); State ex rel. Nat’l Broadcasting Co., Inc. v. City of Cleveland, 82 Ohio App.3d 202, 611 N.E.2d 838 (8th Dist. 1992). 488 See, e.g., State ex rel. Johnson v. City of Cleveland, 65 Ohio St.3d 331, 333-34, 603 N.E.2d 1011, 1013-14 (1992), overruled on different grounds by State ex rel. Steckman v. Jackson, 70 Ohio St.3d 420, 639 N.E.2d 83 (1994). See, also, State ex rel. Martin v. City of Cleveland, 67 Ohio St.3d 155, 156-57, 616 N.E.2d 886, 887 (1993) (promise of confidentiality or threat to physical safety need not be within “four corners” of document to be exempt.) 489 Ohio Rev. Code Ann. § 149.43(A)(2)(c); State ex rel. Walker v. Balraj, 2000 Ohio App. LEXIS 3620 (8th Dist. Aug. 2, 2000). 490 State ex rel. Beacon Journal v. Univ. of Akron, 64 Ohio St.2d 392, 397, 415 N.E.2d 310, 314 (1980). 491 See State ex rel. Dayton Newspapers, Inc. v. Rauch, 12 Ohio St.3d 100, 465 N.E.2d 458 (1984) (autopsy report exempt from disclosure as specific investigatory technique or work product; note however that final autopsy reports have been specifically declared public records, Ohio Rev. Code Ann. §313.10 ), effective August 17, 2006; State ex rel. Lawhorn v. White, No. 63290, 1994 Ohio App. LEXIS 892 (8th Dist. Mar. 7, 1994); State ex rel. Williams v. City of Cleveland, No. 57769, 1991 Ohio App. LEXIS 303 (8th Dist. Jan. 24, 1991); State ex rel. Jester v. City of Cleveland, No. 56438, 1991 Ohio App. LEXIS 149 (8th Dist. Jan. 17, 1991); State ex rel. Apanovitch v. City of Cleveland, No. 58867, 1991 Ohio App. LEXIS 663 (8th Dist. Feb. 6, 1991). The three preceding cases were affirmed in State ex rel. Williams v. City of Cleveland, 64 Ohio St.3d 544 (1992). See, also, State ex rel. Robertson v. Haines, No. 12843, 1992 Ohio App. LEXIS 5584 (2nd Dist. Nov. 3, 1992); Martinelli v. Cuyahoga County Coroner’s Office, 52 Ohio St.3d 702, 556 N.E.2d 526 (1990), appeal dismissed. 492 State ex rel. Steckman v. Jackson, 70 Ohio St.3d 420, 639 N.E.2d 83 (1994). 493 State ex rel. WHIO-TV-7 v. Lowe, 77 Ohio St.3d 350, 673 N.E.2d 1360 (1997). 494 See, e.g., State ex rel. Nat’l Broadcasting Co., Inc. v. City of Cleveland, 38 Ohio St.3d 79, 526 N.E.2d 786(1988) (“NBC I”). 495 State ex rel. Steckman v. Jackson, 70 Ohio St.3d 420, 639 N.E.2d 83 (1994). 496 State ex rel. Steckman v. Jackson, 70 Ohio St.3d 420, 639 N.E.2d 83 (1994).

Page 72 Auditor of State Mary Taylor, CPA · Ohio Attorney General, Marc Dann Ohio Sunshine Laws 2008: An Open Government Resource Manual papers, memoranda, or similar materials, that were prepared in anticipation of litigation, are exempt from public disclosure.497

However, the work product is exempt only until the case is “over,” i.e., when all actions, trials, and proceedings in the case have concluded, the work product becomes available for public disclosure.498 This standard includes appeals and post-conviction relief.499 Therefore, so long as an opportunity still exists either for appeal or post-conviction relief, the work product remains exempt from disclosure.500 And where the criminal defendant who is the subject of the records agrees not to pursue appeal or post-conviction relief, even though the time to do so has not expired, the case is “over” and the work product becomes available for public disclosure.501

Moreover, formal proceedings in the case (whether an administrative proceeding or civil or criminal litigation) must be pending or highly probable, even where the case is not technically “over.” 502 Otherwise, the work product must be released.503 But even where there is no suspect in a criminal investigation, so long as it is clear that a crime has been committed, this “highly probable” standard is deemed satisfied.504

497 State ex rel. Steckman v. Jackson, 70 Ohio St.3d 420, 639 N.E.2d 83 (1994). 498 State ex rel. Cleveland Police Patrolmen’s Ass’n v. City of Cleveland, 84 Ohio St.3d 310 (1999); State ex rel. WLWT v. Leis, 77 Ohio St.3d 357, 673 N.E.2d 1365 (1996); State ex rel. Steckman v. Jackson, 70 Ohio St.3d 420, 639 N.E.2d 83 (1994); Toledo Police Patrolman’s Assn. v. City of Toledo, 2000 Ohio App. LEXIS 875 (6th Dist. Mar. 10, 2000). 499 State ex rel. Steckman v. Jackson, 70 Ohio St.3d 420, 432, 639 N.E.2d 83, 93 (1994); Perry v. Onunwor, 2000 Ohio App. LEXIS 5893 (8th Dist. Dec. 7, 2000); State ex rel. Scuba v. Simmons, 2001 Ohio App. LEXIS 1838 (11th Dist. Apr. 20, 2001). 500 State ex rel. WLWT-TV5 v. Leis, 77 Ohio St.3d 357, 1997 Ohio 273, 673 N.E. 2d 1365 (1997), quoting, Steckman v. Jackson, 70 Ohio St.3d 420, 639 N.E.2d 83 (1994) paragraph four of the syllabus. Also, see, State ex rel. Beacon Journal Publ’g co. v. Bodiker, 134 Ohio App.3d 415, 731 N.E.2d 245 (10th Dist. July 8, 1999) (“The purpose of the trial preparation exemption ordinarily is not furthered by continuing the exempted status of the record after all proceedings have ended.”) 501 State ex rel. Cleveland Police Patrolmen’s Ass’n v. City of Cleveland, 84 Ohio St.3d 310, 703 N.E.2d 796 (1999) (when defendant signed affidavit agreeing not to pursue appeal or post-conviction relief, trial preparation and work product exceptions inapplicable.) 502 See State ex rel. Police Officers for Equal Rights v. Lashutka, 72 Ohio St.3d 185, 648 N.E.2d 808 (1995); State ex rel. Steckman v. Jackson, 70 Ohio St.3d 420, 639 N.E.2d 83 (1994). See also, State ex rel. Polovischak v. Mayfield, 50 Ohio St.3d 51, 552 N.E.2d 635 (1990); State ex rel. Thompson Newspapers, Inc. v. Martin, 47 Ohio St.3d 28, 546 N.E.2d 939 (1989). 503 See State ex rel. Police Officers for Equal Rights v. Lashutka, 72 Ohio St.3d 185, 648 N.E.2d 808 (1995); State ex rel. Steckman v. Jackson, 70 Ohio St.3d 420, 639 N.E.2d 83 (1994). 504 State ex rel. Leonard v. White, 75 Ohio St.3d 516, 664 N.E.2d 527 (1996).

Auditor of State Mary Taylor, CPA · Ohio Attorney General, Marc Dann Page 73 Ohio Sunshine Laws 2008: An Open Government Resource Manual  Exceptions to Disclosure: Infrastructure and Security Records

In 2002, the Ohio legislature enacted an anti-terrorism bill. Among other changes to Ohio law, the bill created two new categories of records that are exempt from mandatory public disclosure: “infrastructure records” and “security records.” 505

INFRASTRUCTURE RECORD. An “infrastructure record” is any record that discloses the configuration of a public office’s “critical systems,” such as its communications, computer, electrical, mechanical, ventilation, water, plumbing, or security systems.506 Simple floor plans or records showing the spatial relationship of components of the public office are NOT infrastructure records. 507

SECURITY RECORD. A “security record” is “any record that contains information directly used for protecting or maintaining the security of a public office against attack, interference, or sabotage or to prevent, mitigate, or respond to acts of terrorism.”508

The law also states that infrastructure or security records may be disclosed for purposes of construction, renovation, or remodeling of a public office without waiving the exempt status of that record.509

505 Ohio Rev. Code Ann. § 149.433. 506 Ohio Rev. Code Ann. § 149.433(A)(2). 507 Ohio Rev. Code Ann. § 149.433(A)(2). 508 Ohio Rev. Code Ann. § 149.433(A)(3)(a)and (b). 509 Ohio Rev. Code Ann. § 149.433(C). See, 53, above, for a discussion of “waiver.”

Page 74 Auditor of State Mary Taylor, CPA · Ohio Attorney General, Marc Dann Ohio Sunshine Laws 2008: An Open Government Resource Manual  Exceptions to Disclosure: Other Records

In addition to records that are mandatorily exempt from disclosure under the catch-all exception,510 the Public Records Act also lists specific types of records that a public office may be permitted or required to withhold:

¾ Probation and Parole Records.511 Certain probation records, even when used by a court in its official duties, are confidential and are not subject to public disclosure.512 Similarly, records reviewed by the Parole Board in preparation for hearings, and records containing the Board’s findings are not subject to public disclosure.513 But, Adult Parole Authority interoffice communications concerning parolees or probationers may not be subject to this exception, and may be subject to public disclosure.514

Notwithstanding these confidentiality statutes, some otherwise confidential records of the Adult Parole Authority are available to approved media organizations, government officials, victims, the inmate who is the subject of the record, the designated attorney for the victim or inmate, or the public.515 Access to these records requires a written request.516

¾ Abortion: Records of Parental Notification Bypass. Where a minor is seeking court permission to bypass parental notification for an abortion, records associated with the action are not subject to public disclosure.517 Indeed, the complaint and all other records pertaining to this type of action shall be kept confidential,518 and cannot be publicly released.519

However, if the minor appeals denial of her request, the public may obtain limited information, including the docket number, the judge’s name, the decision, and if appropriate, a redacted opinion.520

510 See, “Exceptions to Disclosure: The Catch-all Exception”, page 54. 511 Ohio Rev. Code Ann. § 149.43(A)(1)(b). 512 Ohio Rev. Code Ann. § 2951.03(D) and § 2953.08(F)(1); State of Ohio v. Patrick, 2001 Ohio App. LEXIS 2554 (6th Dist. June 8, 2001) (appellate court’s use of a pre-sentence investigation report does not cause that report to become a public record); State ex rel. Whittaker v. Court of Common Pleas, 2001 Ohio App. LEXIS 680 (8th Dist. Feb. 15, 2001). 513 State ex rel. Lipschutz v. Shoemaker, 49 Ohio St.3d 88, 551 N.E.2d 160 (1990). See, also, State ex rel. Gaines v. Adult Parole Auth., 5 Ohio St.3d 104, 449 N.E.2d 762 (1983); State ex rel. Johnston v. Shoemaker, No. 82AP-991, 1983 Ohio App. LEXIS 15613 (10th Dist. Aug. 11, 1983); Jarrell v. Denton, No. 838, 1981 Ohio App. LEXIS 13408 (4th Dist. June 17, 1981). 514 State ex rel. Community Corrections Ass’n v. Ohio Dept. of Rehabilitation & Corrections, 84 Ohio App.3d 821, 619 N.E.2d 20 (10th Dist. 1992). 515 Ohio Admin. Code § 5120:1-1-36 (for example, if certain requirements are satisfied, member of public may receive parole board decision sheets and warrants and detainers.) 516 Ohio Admin. Code § 5120:1-1-36. 517 Ohio Rev. Code Ann. § 149.43(A)(1)(c). 518 Ohio Rev. Code Ann. § 2151.85(F). 519 Ohio Rev. Code Ann. § 2151.85(F); Ohio Rev. Code Ann. § 2505.073(B); Ohio v. Akron Ctr. for Reprod. Health, 497 U.S. 502 (1990). See, also, Bellotti v. Baird, 443 U.S. 622 (1979). 520 State ex rel. Cincinnati Post v. Court of Appeals, 65 Ohio St.3d 378, 604 N.E.2d 153 (1992).

Auditor of State Mary Taylor, CPA · Ohio Attorney General, Marc Dann Page 75 Ohio Sunshine Laws 2008: An Open Government Resource Manual ¾ Adoption Records. Records pertaining to adoption proceedings, including the Ohio Department of Health’s adoption file, are not public records.521 Indeed, publicly releasing adoption records is prohibited by law.522

¾ Putative Father Registry Records.523 This registry is designed to notify men if their children, or alleged children, become the subject of an adoption petition.524 The information in this database is not available for public disclosure, whether it is held by the Ohio Department of Job and Family Services, the division of child support, or by a child support enforcement agency.525

¾ Civil Rights Commission Records. Certain records relating to investigations by the Ohio Civil Rights Commission are not available for public disclosure.526

¾ DNA Database Records. The Ohio Bureau of Criminal Identification and Investigation (BCI) stores DNA records in a database.527 These records are not subject to public disclosure.528

¾ Rehabilitation and Correction/Youth Services Records. Certain records of the Ohio Department of Rehabilitation and Corrections, as well as certain records of the Ohio Department of Youth Services, are not subject to public disclosure.529

¾ Intellectual Property Records. Excluding financial or administrative records, records of faculty or staff of a state college or university created while conducting or as a result of study or research that have not been otherwise publicly disclosed are not subject to public disclosure.530 It does not matter whether the study or research was sponsored by the college or university alone, or in conjunction with another governmental body or private entity.531

¾ Donor Profile Records. Virtually all records about donors or potential donors to a public institution of higher education are exempt from public disclosure.532 The only records that

521 Ohio Rev. Code Ann. § 149.43(A)(1)(d) and (f). 522 Ohio Rev. Code Ann. §§ 3107.17, 3107.42 and 3107.52; State ex rel. Wolff v. Donnelly, 24 Ohio St.3d 1, 492 N.E.2d 810 (1986). 523 Ohio Rev. Code Ann. § 149.43(A)(1)(e). 524 Ohio Rev. Code Ann. § 3107.062. 525 Ohio Rev. Code Ann. § 149.43(A)(1)(e). 526 Ohio Rev. Code Ann. § 149.43(A)(1)(i) and § 4112.05. 527 Ohio Rev. Code Ann. § 109.573. 528 Ohio Rev. Code Ann. § 149.43(A)(1)(j). (See penalties for disclosing such information: Ohio Rev. Code Ann. §109.99(B) Whoever violates division (G)(1) of section 109.573 [109.57.3] of the Revised Code is guilty of unlawful disclosure of DNA database information, a misdemeanor of the first degree.”) 529 Ohio Rev. Code Ann. § 149.43(A)(1)(k) and (l), § 5120.21 and § 5139.05. 530 Ohio Rev. Code Ann. § 149.43(A)(5); State ex rel. Besser v. Ohio State Univ., 89 Ohio St.3d 396, 732 N.E.2d 373 (2000) (“Besser II”). 531 Ohio Rev. Code Ann. § 149.43(A)(5). 532 Ohio Rev. Code Ann. § 149.43(A)(1)(n) and (A)(6).

Page 76 Auditor of State Mary Taylor, CPA · Ohio Attorney General, Marc Dann Ohio Sunshine Laws 2008: An Open Government Resource Manual are publicly available are the names and reported addresses of actual donors, and the date, amount, and conditions of the donation.533

¾ Department of Job and Family Services Records. Records maintained by the Ohio Department of Job and Family Services for use in locating child support obligors.534

¾ County Hospitals’ Trade Secrets. Trade secrets belonging to a county hospital may be withheld from public disclosure.535

¾ Recreational Activities of Minors. Some public offices maintain personal information about minors in connection with recreational activities, such as a police athletic league, or a city recreation department. Ohio law now protects that personal information from public disclosure at the discretion of the public office.536

¾ Child Fatality Review Board. Certain records, statements and all work products of a child fatality review board are confidential537 and are not public records.538

¾ Public Children Services Agency. Certain records provided to and statements made by the executive director of a public children services agency or a prosecuting attorney are not subject to public disclosure.539

¾ Nursing Home Administrator. Test materials, examinations or evaluation tools used in an examination to license a nursing home administrator are not subject to public disclosure.540

533 Ohio Rev. Code Ann. § 149.43(A)(6). 534 Ohio Rev. Code Ann. § 149.43(A)(1)(o) 535 Ohio Rev. Code Ann. § 149.43(A)(1)(q). See, also, Ohio Rev. Code Ann. § 1333.61(D). 536 Ohio Rev. Code Ann. § 149.43(A)(1)(r) and (A)(8). See, also, State ex rel. McCleary v. Roberts, 88 Ohio St.3d 365, 725 N.E.2d 1144 (2000). 537 Ohio Rev. Code Ann. § 307.629; but, see, Ohio Rev. Code Ann. § 307.626 (annual report to Ohio Dept. of Health is a public record.) 538 Ohio Rev. Code Ann. § 149.43(A)(1)(s). 539 Ohio Rev. Code Ann. § 5153.171 and § 149.43(A)(1)(t). 540 Ohio Rev. Code Ann. §§ 149.43(A)(1)(u) and § 4751.04.

Auditor of State Mary Taylor, CPA · Ohio Attorney General, Marc Dann Page 77 Ohio Sunshine Laws 2008: An Open Government Resource Manual  Public Records Act: Remedies

FOR DENIED ACCESS. The Public Records Act is a “self-help” statute, in that a person who believes that the Act has been violated must independently pursue a remedy, rather than asking a public official such as the Ohio Attorney General to initiate legal action on his or her behalf. The sole remedy available to a person who believes they have been wrongfully denied access to public records is litigation, specifically, a petition for a writ of mandamus.541 Upon filing a mandamus action, the person filing is called the “relator.” Mandamus is a court action that asks a court to order a public office to comply with the Public Records Act.

Additionally, a relator in a mandamus action need not prove a lack of adequate remedy at law to prevail,542 which makes a mandamus for public records easier for the relator to prove than other mandamus actions.

¾ The Parties. The person who files the mandamus is called the “relator,” while the entity that is holding the records is called the “respondent.” To be entitled to mandamus, the relator will first have to show that they made an appropriate request for public records before filing the mandamus action.543 The complaint must specifically state the records that are being sought.544

Mandamus does not have to be brought against the person ultimately responsible for the records; it needs only to name “a person responsible.”545 “When statutes impose a duty on a particular official to oversee records, that official is the ‘person responsible’ under the Public Records Act.”546 If an official responsible for records denies a public records request, no administrative appeal to the officer’s supervisor is necessary before filing a mandamus action in court.547

¾ Where to File. A public records mandamus is unique because it permits forum shopping — that is, it allows the relator to “shop” for the most beneficial forum because they can file the action in the court where they feel they are most likely to prevail.

541 Ohio Rev. Code Ann. §149.43(C)(1), State ex rel. McGowan v. Cuyahoga Metro. Housing Authority, 78 Ohio St.3d 518, 678 N.E.2d 1388 (1997); State ex rel. Steckman v. Jackson, 70 Ohio St.3d 420, 639 N.E.2d 83 (1994). 542 State ex rel. Steckman v. Jackson, 70 Ohio St.3d 420, 639 N.E.2d 83 (1994); State ex rel. McGowan v. Cuyahoga Metro. Housing Authority, 78 Ohio St.3d 518, 678 N.E.2d 1388 (1997). 543 State ex rel. Bush, No. 01-T-0042, 2001 Ohio App. LEXIS 4511 (11th Dist. Oct. 5, 2001) (mandamus inappropriate where relator failed to first make request upon public office before filing action.) 544 State ex rel. Citizens for Environmental Justice v. Campbell, 93 Ohio St.3d 585, 757 N.E.2d 366 (2001); State ex rel. Rivers v. Miller, No. 93AP-945, 1993 Ohio App. LEXIS 6051 (10th Dist. Dec. 16, 1993). 545 State ex rel. Cincinnati Post v. Schweikert, 38 Ohio St.3d 170, 174, 527 N.E.2d 1230 (1988). 546 State ex rel. Mothers Against Drunk Drivers, 20 Ohio St. 3d 30, 485 N.E.2d 706, paragraph two of the syllabus (1985). See also, State ex rel. Highlander v. Rudduck, 103 Ohio St. 3d 370, 2004-Ohio-4952, 816 N.E.2d 213 (2004) (at time of request, clerk of courts had custody of records sought and judge had control over them, so both were proper respondents in mandamus action.) 547 State ex rel. Multimedia, Inc. v. Whalen, 48 Ohio St.3d 41, 549 N.E.2d 167 (1990).

Page 78 Auditor of State Mary Taylor, CPA · Ohio Attorney General, Marc Dann Ohio Sunshine Laws 2008: An Open Government Resource Manual A relator may file a public records mandamus in any one of three courts: the local court of common pleas, the appellate court for that district, or the Ohio Supreme Court.548 However, if a relator files in the Ohio Supreme Court, the case may be assigned to mediation through the Court.549

¾ Attorney’s Fees, Court Costs & Damages. While the option of litigation may seem intimidating to a private individual, especially from a cost perspective, if a public office loses a mandamus action, it will be ordered to pay the individual’s court costs, and may also be required to pay reasonable attorney’s fees,550 and statutory damages.551 Reasonable attorney fees will be awarded by the court, subject to reduction, when the public office failed to respond affirmatively or negatively to the public records request within the time allowed under the law, or when the public office promised to provide records for inspection or copying within a specified period of time but failed to do so.552 However, the court may reduce an award of attorney’s fees or not award them at all if it determines that the public office reasonably believed that it was not failing to comply with the law, and that its action served a public policy.553

Court costs and reasonable attorney’s fees awarded in public records mandamus actions are considered remedial rather than punitive.554 If the court orders the public office to pay attorney’s fees, the relator may only recover those fees directly associated with the mandamus action,555 and only insofar as the requests had merit.556 Reasonable attorney’s fees include reasonable fees incurred to produce proof of the reasonableness and amount of the fees and to otherwise litigate entitlement to the fees.557

¾ Pro Se Litigants. The opportunity to collect attorney fees does not apply when the relator appears before the court pro se, or without an attorney. The Public Records Act authorizes

548 Ohio Rev. Code Ann. § 149.43(C). 549 S. Ct. Prac. R. XIV (public records mandamus actions may be ordered to attempt mediation.) 550 State ex rel. Dispatch Printing Co. v. Morrow County Prosecutor’s Office, 2005-Ohio-685, 824 N.E.2d 64 (Feb. 24, 2005); State ex rel. Cincinnati Enquirer v. Krings, 93 Ohio St.3d 654, 758 N.E.2d 1135 (2001); State ex rel. Kim v. Wachenschwanz, 93 Ohio St.3d 586, 757 N.E.2d 367 (2001); State ex rel. Pennington v. Gundler, 75 Ohio St.3d 171, 661 N.E.2d 1049 (1996). 551 Ohio Rev. Code Ann. §149.43(C)(1). 552 Ohio Rev. Code Ann. §149.43(C)(2)(b). 553 Ohio Rev. Code Ann. §149.43(C)(2)(c). 554 Ohio Rev. Code Ann. §149.43(C)(2)(c). 555 State ex rel. Pennington v. Gundler, 75 Ohio St.3d 171, 661 N.E.2d 1049 (1996). 556 State ex rel. Cranford v. Cleveland, 103 Ohio St.3d 196, 2004-Ohio-4884 (Sept 29, 2004) (relator denied attorney’s fees due to “meritless request”); State ex rel. Dillery v. Icsman, 92 Ohio St.3d 312, 750 N.E.2d 156 (2001). 557 Ohio Rev. Code Ohio Rev. Code Ann. §149.43(C)(2)(c).

Auditor of State Mary Taylor, CPA · Ohio Attorney General, Marc Dann Page 79 Ohio Sunshine Laws 2008: An Open Government Resource Manual only “attorney fees,” not compensation to pro se litigants,558 even where the pro se litigant is an attorney.559

¾ Statutory Damages. Under a provision added to the Public Records Act in 2007, a person who transmits a valid written request for public records by hand delivery or certified mail is entitled to receive statutory damages if a court finds that the public office failed to comply with its obligations under the Act.560 The award of statutory damages is not considered a penalty under the law; rather, it is intended to compensate the requestor for injury arising from lost use of the requested information. Statutory damages are fixed at $100 per business day, up to a maximum of $1000.561

FOR DESTRUCTION OR TRANSFER. Separately, if a person believes that a public office has destroyed, removed, or transferred public records outside of its statutorily-approved retention schedule, that person has three options:562 A person may file (1) an injunction action to stop the offending behavior plus a request for attorney fees; (2) a civil action for forfeiture of $1,000 plus a request for attorney fees;563 or (3) both.564 A person has only one year from the date of discovery of the violation to file these actions.565

The Ohio Supreme Court has defined the term “per violation” with regard to the $1,000 civil forfeiture fine.566 In a dispute with the city over overtime compensation, two former city employees sought the civil forfeiture fine for the city’s alleged improper destruction of overtime records maintained in two separate employee files and a tally book. The city argued that it was only subject to fines for destroying those three “records.” The employees, on the other hand, argued that destruction of each document within those files (a total of 860 separate “records”) constituted individual violations, so they were entitled to recover $1,000 for each record destroyed (i.e., $860,000).

The Court found that each individual document within the files, as well as the files within which those documents were compiled, were records. The employees who had filed the action for improper destruction of the records were ultimately awarded $860,000.

558 State ex rel. Thomas v. Ohio State University, 71 Ohio St.3d 245, 643 N.E.2d 126 (1994); Fant v. Bd. Of Trustees, Regional Transit Authority, 50 Ohio St.3d 72, 552 N.E.2d 639 (1990), cert. denied, 498 U.S. 967, 111 S.Ct. 429, 112 L.Ed.2d 413 (1990); State ex rel. Fant v. Mengel, No. 90AP-531, 1990 Ohio App. LEXIS 3091 (10th Dist. July 26, 1990); compare State ex rel. Mayrides v. City of Whitehall, 62 Ohio App.3d 225, 575 N.E.2d 224 (10th Dist. 1990), aff’d, 62 Ohio St.3d 203, 580 N.E.2d 1089 (1991). See, also, State ex rel. McGowan v. Cuyahoga Metro. Housing Authority, 78 Ohio St.3d 518, 678 N.E.2d 1388 (1997). 559 State ex rel. Thomas v. Ohio State Univ., 71 Ohio St.3d 245, 643 N.E.2d 126 (1994). 560 Ohio Rev. Code Ann. §149.43(C)(1). 561 Ohio Rev. Code Ann. §149.43(C)(1) 562 Ohio Rev. Code Ann. § 149.351(B) 563 Ohio Rev. Code Ann. § 149.351(B); State ex rel. Sensel v. Leone, 85 Ohio St.3d 152, 707 N.E.2d 496 (1999). 564 Ohio Rev. Code Ann. § 149.351(B). 565 Hughes v. City of North Olmsted, No. 70705, 1997 Ohio App. LEXIS 224, *7 (8th Dist. Jan. 23, 1997) (statute of limitations for improper destruction of records is one year); Ohio Rev. Code Ann. § 2305.11(A). 566 Kish v. City of Akron, 109 Ohio St. 3d 162 (2006).

Page 80 Auditor of State Mary Taylor, CPA · Ohio Attorney General, Marc Dann Ohio Sunshine Laws 2008: An Open Government Resource Manual  Public Records Act: Common Issues

RESUMES. Resumes submitted for public employment are unquestionably available for public disclosure.567 The fact that a public office has promised confidentiality to the applicants is irrelevant, and the public is still entitled to review the resumes.568

However, it should be noted that the Ohio Supreme Court denied a writ to a newspaper that requested copies of resumes of superintendent candidates.569 The Court would not order the school board to provide copies of the resumes because the board had not maintained copies of them. The Court reasoned that records must be “kept” by a public office before they constitute “public records.”570 Since the board had not kept the resumes, they were not public records.571 Moreover, the Court declared that the board had no duty to keep the resumes.572

POLICE OFFENSE AND INCIDENT REPORTS. In 2001, the Ohio Supreme Court issued an opinion that had far-reaching impact on the daily operations of law enforcement agencies in Ohio.573 The Court first reminded law enforcement that their initial incident reports are public records subject to immediate disclosure upon request.574

The Court concluded that, because an initial incident report merely initiates an investigation, rather than being part of the investigation, the initial incident report is not a confidential law enforcement investigatory record.575 As a result of this conclusion, the Court held that public

567 State ex rel. Consumer News Services, Inc. v. Worthington City Bd. of Educ., 97 Ohio St.3d 58, 2002 Ohio 5311, 776 N.E.2d 82 (2002) (unrefuted that resumes of applicants for a school treasurer position are public record); State ex rel. Gannett Satellite Info. Network v. Shirey, 78 Ohio St.3d 400, 678 N.E.2d 557 (1997) (resumes of safety director applicants collected by a private consultant are public records subject to disclosure); State ex rel. Plain Dealer Publ’g Co. v. City of Cleveland, 75 Ohio St.3d 31, 661 N.E.2d 187 (1996) (resumes of police chief applicants collected by a private executive search firm are public records); State ex rel. Dayton Newspapers v. Dayton Bd. Of Education, 140 Ohio App.3d 243, 747 N.E.2d 255 (2nd Dist. 2000) (resumes for superintendent not trade secret). But, see, State ex rel. Cincinnati Enquirer v. Cincinnati Bd. of Educ., 99 Ohio St.3d 6, 2003 Ohio 2260, 788 N.E.2d 629 (2003) (school board had no duty to keep resumes of candidates for superintendent and therefore, those resumes are not public records.) 568 State ex rel. Consumer News Services, Inc. v. Worthington City Bd. of Educ., 97 Ohio St.3d 58, 2002 Ohio 5311, 776 N.E.2d 82 (2002); State ex rel. Gannett Satellite Info. Network v. Shirey, 78 Ohio St.3d 400, 678 N.E.2d 557 (1997). Cf. State ex rel. Cincinnati Enquirer v. Cincinnati Bd. of Educ., 99 Ohio St.3d 6, 2003 Ohio 2260, 788 N.E.2d 629 (2003) (board notified applicants for superintendent that any materials left with the board or search agency would be public record.) 569 State ex rel. Cincinnati Enquirer v. Cincinnati Bd. Of Educ., 99 Ohio St.3d 6, 2003 Ohio 2260, 788 N.E.2d 629 (2003) (board members examined application materials during executive session, but applicants did not leave board with originals or copies.) 570 State ex rel. Cincinnati Enquirer v. Cincinnati Bd. Of Educ., 99 Ohio St.3d 6, 2003 Ohio 2260, P12, 788 N.E.2d 629 (2003). 571 State ex rel. Cincinnati Enquirer v. Cincinnati Bd. Of Educ., 99 Ohio St.3d 6, 2003 Ohio 2260, P12, 788 N.E.2d 629 (2003). 572 State ex rel. Cincinnati Enquirer v. Cincinnati Bd. Of Educ., 99 Ohio St.3d 6, 2003 Ohio 2260, P12, 788 N.E.2d 629 (2003). 573 State ex rel. Beacon Journal Publ’g Co. v. Maurer, 91 Ohio St. 3d 54, 741 N.E.2d 511 (2001). 574 State ex rel. Beacon Journal Publ’g Co. v. Maurer, 91 Ohio St. 3d 54, 741 N.E.2d 511 (2001) (citing State ex rel. Steckman v. Jackson, 70 Ohio St. 3d 420, 639 N.E.2d 83, paragraph five of the syllabus (1994)). 575 State ex rel. Beacon Journal Publ’g Co. v. Maurer, 91 Ohio St. 3d 54, 741 N.E.2d 511 (2001). See generally, “Law Enforcement Investigations,” page 68.

Auditor of State Mary Taylor, CPA · Ohio Attorney General, Marc Dann Page 81 Ohio Sunshine Laws 2008: An Open Government Resource Manual offices could not redact certain information from initial incident reports, including the identity of an uncharged suspect.576

After the Court’s decision in Maurer, some argued the Court had “adopted a per se rule that all police offense and incident reports are subject to disclosure notwithstanding the applicability of any exemption.”577 But, in a subsequent case, the Court expressly rejected that argument and clarified its decision in Maurer.578 The Court explained that “although police offense and incident reports are generally subject to disclosure, documents containing information that is exempt under state or federal law may be redacted.”579

PERSONAL PRIVACY:

¾ Private Citizens. Historically, the Ohio Supreme Court has rejected invitations to balance an individual’s common law right to privacy against the public’s “right to know.”580 Ohio courts have ruled that the legislature has already balanced these competing interests when it created the various exceptions to the Public Records Act.581 For example, a deceased person’s family cannot prevent access to public records containing the victim’s personal information by arguing privacy interests,582 and a judge may not redact the settlement amount from a probate court record because he deems the family’s interest in confidentiality of the information outweighs the public’s interest in accessing that information.583

Notably, Ohio’s legislature has on occasion followed the Ohio’s Supreme Court’s lead by codifying exceptions to mandatory disclosure for certain types of personal information. R.C. §149.43(A)(1)(r), for instance, which creates a discretionary exemption for “information

576 State ex rel. Beacon Journal Publ’g Co. v. Maurer, 91 Ohio St. 3d 54, 741 N.E.2d 511 (2001). 577 State ex rel. Beacon Journal Publ’g Co. v. Akron, 104 Ohio St. 3d 399, 2004-Ohio-6557, *P55, 819 N.E.2d 1087 (2004). 578 State ex rel. Beacon Journal Publ’g Co. v. Akron, 104 Ohio St. 3d 399, 2004-Ohio-6557, 819 N.E.2d 1087 (2004). 579 State ex rel. Beacon Journal Publ’g Co. v. Akron, 104 Ohio St. 3d 399, 2004-Ohio-6557, *P55, 819 N.E.2d 1087 (2004) (information obtained in connection with allegations of child abuse or neglect may be redacted from police files, including the incident report, pursuant to a valid catch-all exception in ORC 2151.421(H)). See generally, “The Catch-all Exception,” page 54. 580 State ex rel. WBNS-TV, Inc. v. Dues, 101 Ohio St. 3d 406, 411, 2004-Ohio-1497, *P31, 805 N.E.2d 1116, 1123 (2004) (judge may not withhold public records pursuant to “judicially created” privacy exception.) 581 State ex rel. WBNS-TV, Inc. v. Dues, 101 Ohio St. 3d 406, 412, 2004-Ohio-1497, *P36, 805 N.E.2d 1116, 1124 (2004); State ex rel. Multimedia, Inc. v. Whalen, 48 Ohio St.3d 41, 549 N.E.2d 167 (1990). But, see, State ex rel. Beacon Journal Publ’g Co. v. Radel, 57 Ohio St.3d 102, 556 N.E.2d 661 (1991) (there may be a “due process” interest in confidential records of a public office about individuals); State ex rel. Jones v. Myers, 61 Ohio Misc.2d 617, 581 N.E.2d 629 (1991) (payroll records relating to withholdings, vacation, sick leave, retirement service, garnishments, and court ordered support payments are public records but deductions for deferred compensation, investments, and Christmas clubs are protected by individual’s right of privacy in personal financial matters); State ex rel. Toledo Blade v. Univ. of Toledo Found., 65 Ohio St.3d 258, 602 N.E.2d 1159 (1992) (proper role of legislature to balance competing private and public rights); Kallstrom v. City of Columbus, 136 F.3d 1055 (6th Cir. 1998) (police officers have fundamental constitutional interest in preventing release of personal information contained in personnel files where such disclosure creates substantial risk of serious bodily harm or death.) 582 State ex rel. Findlay Publ’g Co. v. Schroeder, 76 Ohio St.3d 580, 669 N.E.2d 835 (1996). See also, State ex rel. Vindicator Printing Co. v. Watkins, No. 91-T-4555, 1991 Ohio App. LEXIS 6414 (8th Dist. Dec. 31, 1991), aff’d, 66 Ohio St.3d 129, 609 N.E.2d 551 (1993); State ex rel. Jefferys v. Watkins, 92 Ohio App.3d 809, 637 N.E.2d 245 (11th Dist. 1993). 583 State ex rel. WBNS-TV, Inc. v. Dues, 101 Ohio St. 3d 406, 413, 2004-Ohio-1497, *P39, 805 N.E.2d 1116, 1124 (2004) (judge erred in relying on “judicially created” privacy exception for redaction.)

Page 82 Auditor of State Mary Taylor, CPA · Ohio Attorney General, Marc Dann Ohio Sunshine Laws 2008: An Open Government Resource Manual pertaining to the recreational activities of a person under the age of 18,” followed the Court’s decision that personal information of children kept in a city database for the purpose of issuing photo IDs for a public pool was not a “record.” The Court had held that the specific information requested did nothing to document any aspect of the city department that held the information.

Additionally, in the case of police officers, the Court has spoken on the personal privacy issue.584 In a case involving police officer files containing personal information, the Court held that the constitutional right to privacy and “good sense” exempted that information from release to a criminal defendant who may use the information to achieve “nefarious ends.”585 The legislature codified this “good sense rule” by creating an exemption for the home addresses of peace officers during the pendency of a criminal case in which the officer is a witness or arresting officer.

Although the Court repudiates any attempt to withhold or redact public records using a privacy exception,586 the Court recognizes constitutional privacy rights as “state or federal law” that prohibit disclosure of certain records.587 In other words, the Court recognizes constitutional privacy rights as a catch-all exception.588

¾ Public Employees. The Ohio Supreme Court has concluded that, in general, the home addresses of state employees are not “records” and, accordingly, state agencies are not required under Ohio’s public records law to disclose those addresses in payroll records or W- 2 files.589 Nevertheless, the Court also noted that the home address of a public employee may constitute a “record” where, for example, that employee works from home.590

Ohio law also protects certain the personal information of certain public employees, including peace officers, parole officers, prosecuting attorneys, assistant prosecuting

584 State ex rel. Keller v. Cox, 85 Ohio St.3d 279, 707 N.E.2d 931 (1999) (adopting reasoning of Kallstrom); Kallstrom v. City of Columbus, 136 F.3d 1055 (6th Cir. 1998) (“Kallstrom I”) (police officers have fundamental constitutional interest in preventing release of personal information contained in personnel files where such disclosure creates substantial risk of serious bodily harm.) 585 State ex rel. Keller v. Cox, 85 Ohio St.3d 279, 707 N.E.2d 931 (1999). See, also, 1999 Ohio Atty. Gen. Ops. No. 99-006 (two-part test to determine when personal information is protected from disclosure); Smith v. City of Dayton, 68 F. Supp.2d 911 (S.D. Ohio 1999) (release of police officer’s home address, unlisted phone number, brother’s name, address, and phone number to newspaper without notice violated officer’s substantive and procedural due process rights). But, see, Conley v. Correctional Reception Center, 141 Ohio App.3d 412, 2001-Ohio-2365, 751 N.E.2d 528 (4th Dist., 2001) (“good sense” rule not applicable when inmate requests correction officers’ past work schedules.) 586 State ex rel. WBNS-TV, Inc. v. Dues, 101 Ohio St. 3d 406, 412, 2004-Ohio-1497, *P36, 805 N.E.2d 1116, 1124 (2004). 587 State ex rel. Beacon Journal Publ’g Co. v. Akron, 70 Ohio St. 3d 605, 1994-Ohio-6, 640 N.E.2d 164 (1994) (city employees social security numbers); State ex rel. Keller v. Cox, 85 Ohio St.3d 279, 707 N.E.2d 931 (1999) (police officers personal information in personnel files); State ex rel. McCleary v. Roberts, 88 Ohio St. 3d 365, 725 N.E.2d 1144 (2000) (personal information of children maintained in city’s database.) See also, 2004 Ohio Atty. Gen. Ops. No. 04-045, 2004 Ohio AG LEXIS 47 (personal financial information held in court files). But see, State ex rel. WBNS-TV, Inc. v. Dues, 101 Ohio St. 3d 406, 413, 2004-Ohio-1497, *P41, 805 N.E.2d 1116, 1125 (2004) (no high potential for victimization in release of settlement amount to give rise to constitutional privacy right.) 588 See generally, “Constitutional Right to Privacy,” page 55. 589 State ex rel. Dispatch Printing Co. v. Johnson, 106 Ohio St. 3d 160, 2005-Ohio-4384 (2005). 590 State ex rel. Dispatch Printing Co. v. Johnson, 106 Ohio St. 3d 160, 2005-Ohio-4384, *P39 (2005).

Auditor of State Mary Taylor, CPA · Ohio Attorney General, Marc Dann Page 83 Ohio Sunshine Laws 2008: An Open Government Resource Manual attorneys, correctional employees, youth services employees, firefighters, and EMTs. For instance, an Ohio statute permits the residential and familial information of peace officers, parole officers, prosecuting attorneys, assistant prosecuting attorneys, correctional employees, youth services employees, firefighters, and EMTs to be withheld from public disclosure.591 Also, the home address of a peace officer (as defined in Ohio Rev. Code § 2935.01) may not be disclosed where the officer is the arresting officer or a witness in a pending criminal case.592

In a separate statutory provision, certain residential addresses of employees of a public children services agency or private child placing agency and that employee’s family members are exempt from disclosure.593

PERSONNEL FILES. The personal privacy issue arises most commonly when a request is made to inspect or copy personnel files of public employees. But, absent an expressly applicable exception594 or unless the employee can demonstrate high potential for victimization595 or a substantial risk of serious bodily harm or death596 in releasing the information, nearly all of the records in a personnel file are public record.597 But, to the extent items contained in the file are not required for the proper functioning of the office; the item may not be subject to mandatory disclosure.598

SOCIAL SECURITY NUMBERS. SSNs should be redacted before disclosure of public records, even court records.599 The Ohio Supreme Court has held that although the federal Privacy Act

591 Ohio Rev. Code Ann. § 149.43(A)(1)(p) and § 149.43(A)(7). 592 Ohio Rev. Code Ann. § 2921.24. 593 Ohio Rev. Code Ann. §2151.142. 594 E.g., residential and familial information of peace officers (Ohio Rev. Code Ann. § 149.43(A)(1)(p) and § 149.43(A)(7)); children services agency employees’ home addresses (Ohio Rev. Code Ann. § 2151.142). 595 State ex rel. Beacon Journal Publ’g Co. v. Akron, 70 Ohio St. 3d 605, 1994-Ohio-6, 640 N.E.2d 164 (1994) (city employees’ social security numbers.) 596 Kallstrom v. City of Columbus, 136 F.3d 1055 (6th Cir. 1998) (“Kallstrom I”) (personal information of police officers). 597 State v. Yates, 66 Ohio St.2d 245, 421 N.E.2d 855 (1981) (“There is no statutory or common law right of an employee to privacy concerning his employer’s earning records, and there is no reason for the employee to expect such privacy”); State v. Bundy, 20 Ohio St.3d 51, 485 N.E.2d 1039 (1985); State ex rel. Petty v. Wurst, 49 Ohio App.3d 59, 550 N.E.2d 215 (12th Dist. 1989); 1990 Ohio Atty. Gen. Ops. No. 90-050. 598 State ex rel. Fant v. Enright, 66 Ohio St.3d 186, 610 N.E.2d 997 (1993) (personnel file item that is not a “public record” and is personal information,” as defined by R.C. § 1347.01(E), does not have to be disclosed pursuant to a public records request); Habe v. South Euclid Civil Serv. Comm’n, No. 61786, 1993 Ohio App. LEXIS 583 (8th Dist. Feb. 4, 1993) (if a personnel file item is not a “public record” a determination must be made, on an ad hoc basis, if its release would constitute an invasion of personal privacy as prohibited by R.C. Chapter 1347.) 599 State ex rel. Office of Montgomery Cty Public Defender v. Siroki, 108 Ohio St.3d 207, 2006-Ohio-662, 2006 Ohio LEXIS 520 (Clerk of Courts correctly redacted SSNs from criminal records before disclosure); State ex rel. Highlander v. Rudduck, 103 Ohio St.3d 370, 2004-Ohio-4952 at P25 (“Judge Rudduck should promptly make any appropriate redactions, e.g., Social Security numbers, before releasing the [court] records”); State ex rel. Beacon Journal Publ’g Co. v. Akron, 70 Ohio St. 3d 605, 1994-Ohio-6, 640 N.E.2d 164 (1994) (city employees have constitutional right to privacy in social security numbers.) See also, State ex rel. Beacon Journal Publ’g Co. v. Bond, 98 Ohio St.3d 146, 154, 2002-Ohio-7117, *P25, 781 N.E.2d 180, 190 (2002) (personal information of jurors used only to verify identification, not to determine competency to serve on jury, such as social security numbers, telephone numbers, driver’s license numbers, may be redacted); State ex rel. Wadd v. Cleveland, 81 Ohio St.3d 50, 53, 689 N.E.2d 25 (1998) (“there is nothing to suggest that Wadd would not be entitled to public access***following prompt redaction of exempt information such as Social Security numbers”); State ex rel. Beacon Journal Publ’g Co. v. Kent State, 68 Ohio St.3d 40, 623 N.E.2d 51 (1993) (on remand, Court of Appeals may redact

Page 84 Auditor of State Mary Taylor, CPA · Ohio Attorney General, Marc Dann Ohio Sunshine Laws 2008: An Open Government Resource Manual (5 U.S.C. § 552a) does not expressly prohibit release of one’s SSN, the Act does create an expectation of privacy as to the use and disclosure of the SSN.600

So, any federal, state, or local government agency that asks individuals to disclose their SSNs must advise the person: (1) whether that disclosure is mandatory or voluntary and, if mandatory, under what authority the SSN is solicited; and (2) what use will be made of it.601 In short, a SSN can only be disclosed if an individual has been given prior notice that their SSN will be publicly available.

However, where a SSN is recorded on a public record to which no expectation of privacy attaches, the SSN will have to be released, too. For instance, the Ohio Supreme Court has ruled that 911 tapes must be made immediately available for public disclosure.602 And, even if the tapes contain SSNs, they cannot be redacted.603 The court explained that there is no expectation of privacy when a person makes a 911 call; instead, there is an expectation that the information will be recorded and disclosed to the public.604 Likewise, there is no expectation of privacy in official documents containing SSNs.605

ELECTRONIC RECORDS. Information kept on computer disks or tapes, audio tape, video tape, microfilm, microfiche, or just about any other fixed media imaginable is potentially subject to disclosure under the Public Records Act 606 if it meets the definition of a “record.” This includes email messages.607

confidential information, i.e. Social Security numbers); 2004 Ohio Atty. Gen. Ops. No. 04-045, 2004 Ohio AG LEXIS 47 (court files may be redacted to conceal social security numbers and other information the release of which would violate constitutional right to privacy.) 600 State ex rel. Beacon Journal Publ’g Co. v. City of Akron, 70 Ohio St.3d 605, 640 N.E.2d 164 (1994) (city employees had expectation of privacy in SSNs such that they must be redacted before release of public records to newspaper.) Compare, State ex rel. Cincinnati Enquirer v. Hamilton County, 75 Ohio St.3d 374, 662 N.E.2d 334 (1996) (Social Security numbers contained in 911 tapes are public records subject to disclosure); but, see, Ohio Rev. Code Ann. §§ 4931.49(E) and 4931.99(E) (information from database that serves public safety answering point of 911 system may not be disclosed); 1996 Ohio Atty. Gen. Ops. No. 96-034 (county recorder under no duty to obliterate Social Security number before making document available for public inspection where recorder was presented with document and was asked to file it.) 601 Privacy Act of 1974, Pub. L. No. 93-579, 88 Stat. 1896 (codified at 5 U.S.C.A. § 552a (West 2000)). 602 State ex rel. Dispatch Printing Co. v. Morrow County Prosecutor’s Office, 105 Ohio St.3d 172, 2005-Ohio-685, 824 N.E.2d 64 (2005); State ex rel. Cincinnati Enquirer v. Hamilton County, 75 Ohio St.3d 374, 377, 662 N.E.2d 334 (1996). But, see, Ohio Rev. Code Ann. §§ 4931.49(E) and 4931.99(E) (information from database that serves public safety answering point of 911system may not be disclosed.) 603 State ex rel. Cincinnati Enquirer v. Hamilton County, 75 Ohio St.3d 374, 377, 662 N.E.2d 334 (1996). 604 State ex rel. Dispatch Printing Co. v. Morrow County Prosecutor’s Office, 105 Ohio St.3d 172, 2005-Ohio-685, 824 N.E.2d 64 (2005); State ex rel. Cincinnati Enquirer v. Hamilton County, 75 Ohio St.3d 374, 377, 662 N.E.2d 334 (1996). 605 1996 Ohio Atty. Gen. Ops. No. 96-034, 1996 Ohio AG LEXIS 30 (federal Privacy Act does not require county recorder to redact social security numbers from copies of official records.) 606 State ex rel. Harmon v. Bender, 25 Ohio St.3d 15, 494 N.E.2d 1135 (1986); Lorain County Title Co. v. Essex, 53 Ohio App.2d 274, 373 N.E.2d 1261 (9th Dist. 1976). 607 But, cf., State ex rel. Wilson-Simmons v. Lake County Sheriff’s Dept., 82 Ohio St.3d 37, 693 N.E.2d 789 (1998) (When an e-mail message does not serve to document the organization, functions, policies, procedures, or other activities of the public office, it is not a “record,” even if it was created by public employees on a public office’s e-mail system.)

Auditor of State Mary Taylor, CPA · Ohio Attorney General, Marc Dann Page 85 Ohio Sunshine Laws 2008: An Open Government Resource Manual CONTRACTUAL CONFIDENTIALITY. Parties to a public contract, including settlement agreements608 and collective bargaining agreements, cannot nullify the Public Records Act’s guarantee of public access to public records.609 Nor can an employee handbook confidentiality provision alter the status of public records.610 In other words, a contract cannot nullify or restrict the public’s access to public records.611 Absent a statutory exception, a “public entity cannot enter into enforceable promises of confidentiality with respect to public records.”612

MUNICIPAL INCOME TAX RETURNS. The issue of whether municipal income tax returns and W-2 federal tax forms are public records comes up frequently. Any information gained as a result of returns, investigations, hearings or verifications is confidential and no person shall disclose the information except (1) in accordance with a judicial order; (2) in the performance of that person’s official duties, or; (3) as a part of the official business of the municipal corporation.613

Copies of W-2 federal tax forms, prepared and maintained by a township as an employer, are public records614 (remember to redact the Social Security Number.615) However, if a W-2 is filed as part of a municipal income tax return, it is confidential.616

Finally, release of municipal income tax information to the Auditor of State is permissible for purposes of facilitating an audit.617

PROPER DESTRUCTION OF RECORDS. Records of a public office may only be destroyed in compliance with a properly approved records retention schedule.618 As for the retention of electronic records, the Ohio Supreme Court has stated that where a retention schedule is clear

608 See generally, “Settlement Agreements and Other Contracts,” page 64. 609 Keller v. City of Columbus, 100 Ohio St.3d 192, 2003 Ohio 5599, 797 N.E.2d 964 (2003) (“Any provision in a collective bargaining agreement that establishes a schedule for the destruction of public records is unenforceable if it conflicts with or fails to comport with all the dictates of the Public Records Act. ); State ex rel. Dispatch Printing Co. v. City of Columbus, 90 Ohio St.3d 39, 734 N.E.2d 797 (2000); State ex rel. Findlay Publ’g Co. v. Hancock County Bd. of Cmsrs., 80 Ohio St.3d 134, 684 N.E.2d 1222 (1997); Toledo Police Patrolman’s Ass’n v. City of Toledo, 94 Ohio App.3d 734, 641 N.E.2d 799 (6th Dist. 1994); State ex rel. Kinsley v. Berea Bd. of Educ., 64 Ohio App.3d 659, 582 N.E.2d 653 (8th Dist. 1990); Bowman v. Parma Bd. Of Educ., 44 Ohio App.3d 169, 542 N.E.2d 663 (8th Dist. 1988); State ex rel. Dwyer v. City of Middletown, 52 Ohio App.3d 87, 557 N.E.2d 788 (12th Dist. 1988); State ex rel. Toledo Blade Co. v. Telb, 50 Ohio Misc.2d 1, 552 N.E.2d 243 (1990); State ex rel. Sun Newspapers v. City of Westlake Bd. of Educ., 76 Ohio App.3d 170, 601 N.E.2d 173 (8th Dist. 1991). 610 State ex rel. Russell v. Thomas, 85 Ohio St.3d 83, 706 N.E.2d 1251 (1999). 611 See State ex rel. Gannett Satellite Info. Network v. Shirey, 78 Ohio St.3d 400, 678 N.E.2d 557 (1997). 612 State ex rel. Findlay Publ’g Co. v. Hancock County Bd. of Cmsrs., 80 Ohio St.3d 134, 684 N.E.2d 1222 (1997); State ex rel. Allright Parking of Cleveland, Inc. v. City of Cleveland, 63 Ohio St.3d 772, 591 N.E.2d 708 (1992) (reversed and remanded on grounds that court failed to examine records in camera to determine existence of trade secrets); State ex rel. Nat’l Broadcasting Co., Inc. v. City of Cleveland, 82 Ohio App.3d 202, 611 N.E.2d 838 (8th Dist. 1992). 613 Ohio Rev. Code Ann. 718.13. Also, see, City of Cincinnati v. Grogan,141 Ohio App.3d 733 (1st Dist, March 16, 2001) (under Cincinnati Municipal Code, the city’s use of tax information in a nuisance-abatement action constituted an official purpose for which disclosure is permitted.) 614 1992 Ohio Atty. Gen. Ops. No. 92-013. 615 See, “Social Security Numbers,” page 84. 616 1992 Ohio Atty. Gen. Ops. No. 92-013. 617 1992 Ohio Atty. Gen. Ops. No. 92-010. 618 Ohio Rev. Code Ann. § 149.351 and § 121.211.

Page 86 Auditor of State Mary Taylor, CPA · Ohio Attorney General, Marc Dann Ohio Sunshine Laws 2008: An Open Government Resource Manual that the destruction timetable applies to all copies of the record, regardless of its storage format, then all forms (hard or electronic) may be destroyed according to that timetable.619 However, if, for example, a retention schedule permits a hard copy of a record to be destroyed once it is converted into an electronic storage format, but the schedule does not provide any instruction as to how long the electronic record must be stored, “then it is clear that the intent…was for the record in the new format to survive destruction of the old.”620 If the retention schedule does not address the particular type of record in question, the record should be maintained until the schedule is properly amended to address that category of records.621 Indeed, improper destruction of a record is a violation of Ohio Rev. Code §149.351. Also, if a public record is maintained beyond its properly approved destruction date, it keeps its public record status until it is destroyed.622

CRIMINAL DISCOVERY. In pending criminal proceedings, criminal defendants are entitled only to the materials that are available to them under criminal discovery rules.623 However, this limitation does not extend to police initial incident reports, which must be made available immediately, even to the defendant.624

Before 1994, many criminal defendants were circumventing the discovery process by using the Public Records Act to obtain more records than they would otherwise be entitled to receive.625 But the Ohio Supreme Court ended that tactic in the landmark public records case of State ex rel. Steckman v. Jackson. In Steckman, the Court explained that allowing criminal defendants to use the Public Records Act in that manner, among other things, “unleveled” the playing field because prosecutors had no similar right to obtain additional discovery outside the criminal rules.626 However, where the records requested by a criminal defendant are not related to the case, this limitation does not apply.627

Note that, when the prosecutor discloses materials to the defendant pursuant to the rules of criminal discovery, that disclosure does not mean those records automatically become available

619 Keller v. City of Columbus, 100 Ohio St.3d 192, 2003-Ohio-5599 (“Keller I”) (2003). 620 Keller v. City of Columbus, 100 Ohio St.3d 192, 2003-Ohio-5599 (“Keller I”) (2003). 621 State ex rel. Dispatch Printing Co. v. City of Columbus, 90 Ohio St.3d 39, 734 N.E.2d 797 (2000). 622 Keller v. City of Columbus, 100 Ohio St.3d 192, 2003 Ohio 5599, 797 N.E.2d 964 (2003); State ex rel. Dispatch Printing Co. v. City of Columbus, 90 Ohio St.3d 39, 734 N.E. 2d 797 (2000) (Police department violated §149.43 when records were destroyed in contravention of City’s retention schedule); Hunter v. Carr, 2000 Ohio App. LEXIS 683 (5th Dist. Feb. 22, 2000) (mayor violates §149.351 when she destroys community hospital board minutes in her possession.) 623 State ex rel. Steckman v. Jackson, 70 Ohio St.3d 420, 639 N.E.2d 83 (1994); State ex rel. Dillery v. Icsman, 92 Ohio St.3d 312, 750 N.E.2d 156 (2001); State ex rel. Wilberger v. Highland Hills Police Dept., No. 79160, 2001 WL 280124 (8th Dist. Mar. 22, 2001); State ex rel. Scuba v. Simmons, No. 00 M 000384, 2001 Ohio App. LEXIS 1838 (11th Dist. Apr. 20, 2001); State v. Woodard, No. 71912, 1998 Ohio App. LEXIS 205 (8th Dist. Jan. 22, 1998) (petitioner in post conviction relief not entitled to discovery beyond scope of Crim. R. 16) (citing Steckman, supra), appeal dismissed sua sponte 81 Ohio St.3d 1522, 692 N.E.2d 1024 (1998). 624 State ex rel. Rasul-Bey v. Onunwor, 94 Ohio St.3d 119, 760 N.E.2d 421 (2002) (criminal defendant’s limitation to using only criminal discovery does not apply to initial incident reports, which are subject to immediate release upon request); State of Ohio v. Twyford, 2001 Ohio App. LEXIS 1443 (7th Dist. Mar. 19, 2001). 625 State ex rel. Steckman v. Jackson, 70 Ohio St.3d 420, 639 N.E.2d 83 (1994). 626 State ex rel. Steckman v. Jackson, 70 Ohio St.3d 420, 425, 639 N.E.2d 83 (1994). 627 State ex rel. Keller v. Cox, 85 Ohio St.3d 279, 282, 707 N.E.2d 931, 934 (1999) (where records sought have no relation to crime or case, Steckman is not applicable).

Auditor of State Mary Taylor, CPA · Ohio Attorney General, Marc Dann Page 87 Ohio Sunshine Laws 2008: An Open Government Resource Manual for public disclosure.628 In other words, the prosecutor does not waive applicable public records exemptions, such as trial preparation records or confidential law enforcement records,629 simply by complying with discovery rules.630 Such requests must be analyzed in the same manner as any other public records request.

CIVIL DISCOVERY. Unlike in the criminal arena, the Ohio Supreme Court has concluded that in pending civil proceedings, the parties are not confined only to the materials available under the civil rules of discovery.631 In other words, a civil litigant is now permitted to use the Public Records Act as a means to circumvent the restrictions associated with the rules of civil procedure.632 As to the use of these public records as evidence in litigation, the Ohio Rules of Evidence govern.633

In considering the role of the Public Records Act in civil litigation, three of the seven justices warned that materials obtained outside the boundaries of civil discovery rules may be excluded by the trial court. In Justice Stratton’s concurring opinion, which was joined by the Chief Justice and a visiting justice, Justice Stratton reminded that “trial courts have discretion to admit or exclude evidence.”634 She stated more directly, “[T]rial courts have discretion to impose sanctions for discovery violations, one of which could be exclusion of that evidence.”635 In conclusion, Justice Stratton remarked that “even though a party may effectively circumvent a discovery deadline by acquiring a document through a public records request, it is the trial court that ultimately determines whether those records will be admitted in the pending litigation.”636

JUVENILE RECORDS. Although it is a common misconception, there is no Ohio law that categorically excludes all juvenile records from public records disclosure.637 While juvenile records maintained by the juvenile court typically are not available for public inspection and copying,638 juvenile records maintained by law enforcement agencies, in general, are treated no differently than adult records, including records identifying a juvenile suspect, victim, or

628 State ex rel. WHIO-TV-7 v. Lowe, 77 Ohio St.3d 350, 673 N.E.2d 1360 (1997). 629 See, “Exceptions to Disclosure: Trial Preparation Records,” page 64, and “Law Enforcement Investigations,” page 68. 630 State ex rel. WHIO-TV-7 v. Lowe, 77 Ohio St.3d 350, 673 N.E.2d 1360 (1997). 631 Gilbert v. Summit County, 104 Ohio St.3d 660, 2004-Ohio-7108, 821 N.E.2d 564 (2004). 632 Gilbert v. Summit County, 104 Ohio St.3d 660, 2004-Ohio-7108, *P14, 821N.E.2d 564 (2004) (Lundberg Stratton, J., concurring). 633 Ohio R. Evid. 803(8) and Ohio R. Evid. 1005. State of Ohio v. Scurti, 153 Ohio App.3d 183, 2003 Ohio 3286, 792 N.E.2d 224 (7th Dist. June 19, 2003); Department of Liquor Control v. B.P.O.E. Lodge 0107, 62 Ohio St.3d 1452, 579 N.E.2d 1391 (1991). See also, Gilbert v. Summit County, 104 Ohio St.3d 660, 2004-Ohio-7108, *P12, 821 N.E.2d 564 (2004) (Lundberg Stratton, J., concurring.) 634 Gilbert v. Summit County, 104 Ohio St.3d 660, 2004-Ohio-7108, *P13, 821N.E.2d 564 (2004) (Lundberg Stratton, J., concurring). 635 Gilbert v. Summit County, 104 Ohio St.3d 660, 2004-Ohio-7108, *P13, 821 N.E.2d 564 (2004) (Lundberg Stratton, J., concurring). 636 Gilbert v. Summit County, 104 Ohio St.3d 660, 2004-Ohio-7108, *P14, 821 N.E.2d 564 (2004) (Lundberg Stratton, J., concurring). 637 See, generally, 1990 Ohio Atty. Gen. Ops. No. 90-101. 638 1990 Ohio Atty. Gen. Ops. No. 90-101. See, also, Juv. Rule of Civ. Proc. 37(B). But, cf., State ex rel. Scripps Howard Broadcasting Co. v. Cuyahoga County Court of Common Pleas, 73 Ohio St.3d 19, 652 N.E.2d 179 (1995) (release of transcript of juvenile contempt proceeding required when proceedings were open to the public.)

Page 88 Auditor of State Mary Taylor, CPA · Ohio Attorney General, Marc Dann Ohio Sunshine Laws 2008: An Open Government Resource Manual witness.639 Said differently, law enforcement agencies are not typically permitted by law to redact information about juveniles from their records based simply on the juvenile’s age. Further, most information held by local law enforcement offices may be shared with other law enforcement agencies and local schools.640

When analyzing a public records request for juvenile records, a law enforcement agency must evaluate the applicability of the confidential law enforcement investigatory records exception.641 In other words, law enforcement agencies should treat the suspect, victim, witness, or source as it would an adult in the same role, i.e., redact a suspect’s identity only if the suspect is “uncharged.”642

Additionally, the office must assess whether any state or federal “catch-all” exceptions apply to require redaction of some or all information. For instance, one important state law exception applies after a juvenile has been fingerprinted and photographed on the basis of an arrest or custody.643 Once that happens, the fingerprints, photographs, and “other records” relating to the arrest or custody must not be disclosed.644

Another important state law exception pertains to information related to alleged child abuse or neglect. The Ohio Supreme Court has held that the state law protecting the confidentiality of a child abuse report and the information contained therein applies to the records of law enforcement.645

Other examples of state law exceptions to public disclosure include records of social, mental and physical examinations conducted pursuant to a juvenile court order,646 records held by the Department of Youth Services pertaining to juveniles in its custody,647 reports regarding allegations of child abuse,648 sealed or expunged juvenile records,649 juvenile probation records,650 and certain records of children’s services agencies.651

639 See, generally, 1990 Ohio Atty. Gen. Ops. No. 90-101. But, cf., State ex rel. Carpenter v. Chief of Police, No. 62482, 1992 Ohio App. LEXIS 5055 (8th Dist. Sept. 17, 1992) (“other records” may include juvenile’s statement or an investigator’s report if they would identify the juvenile.) 640 1987 Ohio Atty. Gen. Ops. No. 87-010. See, also, 1990 Ohio Atty. Gen. Ops. No. 90-099 (local board of education may request and receive information regarding student drug or alcohol use from the public records of law enforcement agencies.) 641 See, “Exceptions to Disclosure: Law Enforcement Investigations,” page 68. 642 See, Confidential Law Enforcement Investigatory Records (the “CLEIRs” exception), page 68. 643 Ohio Rev. Code Ann. § 2151.313. 644 Ohio Rev. Code Ann. § 2151.313. See State ex rel. Carpenter v. Chief of Police, No. 62482, 1992 Ohio App. LEXIS 5055 (8th Dist Sept. 17, 1992) (“other records” may include the juvenile’s statement or an investigator’s report if they would identify the juvenile.) 645 State ex rel. Beacon Journal Publ’g Co. v. Akron, 104 Ohio St. 3d 399, 2004-Ohio-6557, 819 N.E.2d 1087 (2004) (information obtained in connection with allegations of child abuse or neglect may be redacted from police files, including the incident report, pursuant to a valid catch-all exception in ORC 2151.421(H)). 646 Juv. Rule of Civ. Proc. 32(B). 647 Ohio Rev. Code Ann. § 5139.05(D). 648 Ohio Rev. Code Ann. § 2151.421(H)(1); State ex rel. Beacon Journal Publ’g Co. v. Akron, 104 Ohio St.3d 399, 2004- Ohio-6557, 819 N.E.2d 1087 (2004). 649 Ohio Rev. Code Ann. § 2151.358. See also, “The Catch-all Exception: Court Records,” page 54 and “Common Issues: Court Records,” page 90. 650 Ohio Rev. Code Ann. § 2151.14.

Auditor of State Mary Taylor, CPA · Ohio Attorney General, Marc Dann Page 89 Ohio Sunshine Laws 2008: An Open Government Resource Manual Some common federal law "catch-all" exceptions prohibit disclosure of records associated with federal juvenile delinquency proceedings, except for use by authorized persons and law enforcement agencies,@* and restrict the disclosure of fingerprints and photographs of a juvenile found guilty in federal delinquency proceedings of committing a crime that would have been a felony if the juvenile was prosecuted as an

STUDENTDISCIPLINARY RECORDS. A student's disciplinary records must not be disclosed in response to a public records request.654 A federal appellate court determined that student disciplinary records are "education records" as defined in the Family Education Rights and Privacy Act (FERPA).'~~The court concluded that releasing such records and the personally identifiable information contained therein would violate FERPA, which prohibits institutions from releasing a student's "education records" without the written consent of the student or their parents. 656

Ohio also has a state version of FERPA.~~~Under Ohio law, no person shall release or permit access to any personally identifiable information (except directory information) about a student attending a public school, without proper written consent.658 Accordingly, education officials and employees must be diligent in determining whether to release any record that may identify their students.

P Constitutional Right of Access. Based on constitutional principles, and separate from the public records statute, Ohio common law grants the public a presumptive right to inspect and copy court record^."^ Both the United States and the Ohio constitutions create a gualiJied right660of public access to court proceedings that have historically been open to the public

'" Ohio Rev. Code Ann. 5 5 15 3.17. 652 18 U.S.C. $$ 5038(a), 5038(c) 5038(e), Federal Juvenile Delinquency Act (18 U.S.C. $5 503 1-5042). "'See 18 U.S.C. $ 5038(d). 654 United States v. Miami Univ., Case No. 00-35 18 (6thCis. June 27,2002). See, also, United States v. Miami Univ., 91 F. Supp.2d 1132 (S.D. Ohio 2000). 65 5 United States v. Miami Univ., Case No. 00-35 18 (6thcis. June 27,2002). See, also, United States v. Miami Univ., 91 F. Supp.2d 1132 (S.D. Ohio 2000). h5"~ U.S.C. 3 1232g(b)(l). "' Ohio Rev. Code 3 33 19.321. "' Ohio Rev. Code 3 3319.321(B). h59~tateex re1 Beacon Journal Pub1 g Co. v. Bond, 98 Ohio St.3d 146,2002-Ohio-71 17, P19,78 1 N.E.2d 180 (2002); State ex rel, Cincinnati Enquirer v. Winkler, 101 Ohio St. 3d 382, 383, 2004-Ohio-1581, "P8, 805 N.E.2d 1094, 1097 (2004) ("Winkler 111") (citations omitted). State ex rel. Scripps Howard Broadcasting Co. v, Cuyahoga Cty. Ct. of Common Pleas, 73 Ohio St.3d 19,22, 652 N.E.2d 179 (1995)). 660 State ex rel. Cincinnati Enquirer v. Winkler, 101 Ohio St. 3d 382, 384,2004-Ohio-1581, *P9, 805 N.E.2d 1094, 1097 (2004) ("Winkler 111") ("The right, however, is not absolute.")

Page 90 Auditor of State Mary Taylor, CPA Ohio Attorney General, Marc Dann Ohio Sunshine Laws 2008: An Open Government Resource Manual and in which the public’s access plays a significantly positive role.661 This qualified right includes access to the live proceedings, as well as to the records of the proceedings.662

Even where proceedings are not historically public, the Ohio Supreme Court has determined that “any restriction shielding court records from public scrutiny should be narrowly tailored to serve the competing interests of protecting the individual’s privacy without unduly burdening the public’s right of access.”663 This high standard exists because the purpose of this common-law right “is to promote understanding of the legal system and to assure public confidence in the courts.”664 But, the constitutional right of public access is not absolute,665 and courts have traditionally exercised “supervisory power over their own records and files.”666

¾ Statutory Right of Access. In addition to this constitutional right to access, the public is additionally entitled to access court records under the Public Records Act.667 As a result, absent a specific statutory exception, all documents or recorded proceedings of a court are public records subject to disclosure under the Public Records Act.668 In fact, even otherwise exempt materials, such as a deposition transcript or other discovery devices, when filed with a court, become public records.669

However, in circumstances where the release of the court records would prejudice the rights of the parties in an ongoing criminal or civil proceeding, a narrow exception to this public

661 State ex rel. Scripps Howard Broadcasting Co. v. Cuyahoga Cty. Ct. of Common Pleas, 73 Ohio St.3d 19, 20, 652 N.E.2d 179 (1995) (citing In re. T.R., 52 Ohio St.3d 6, 556 N.E.2d 439, paragraph two of the syllabus (1990) (Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 106 S.Ct. 2735, 92 L.Ed. 2d 1 (1986) (“Press-Enterprise II”), followed.) 662 State ex rel. Cincinnati Enquirer v. Winkler,101 Ohio St. 3d 382, 2004-Ohio-1581, 805 N.E. 2d 1094 (2004) (“Winkler III”); State ex rel. Scripps Howard Broadcasting Co. v. Cuyahoga Cty. Ct. of Common Pleas, 73 Ohio St.3d 19, 21, 652 N.E.2d 179 (1995) (citations omitted). 663 State ex rel. Cincinnati Enquirer v. Winkler, 2002 Ohio App. LEXIS 4857, *7 (1st Dist. 2002) (“Winkler I”) (citing State ex rel. Scripps Howard Broadcasting Co. v. Cuyahoga Cty. Ct. of Common Pleas, 73 Ohio St.3d 19, 21, 652 N.E.2d 179 (1995)), aff’d, 2002-Ohio-7334, 2002 Ohio App. LEXIS 7225 (1st Dist. Dec. 31, 2002) (“Winkler II”), aff’d, 101 Ohio St. 3d 382, 2004-Ohio-1581, 805 N.E.2d 1094 (2004) (“Winkler III”). 664 State ex rel. Cincinnati Enquirer v. Winkler,101 Ohio St. 3d 382, 384, 2004-Ohio-1581, *P9, 805 N.E. 2d 1094, 1097 (2004) (“Winkler III”). 665 State ex rel. Cincinnati Enquirer v. Winkler,101 Ohio St. 3d 382, 384, 2004-Ohio-1581, *P9, 805 N.E. 2d 1094, 1097 (2004) (“Winkler III”). 666 State ex rel. Cincinnati Enquirer v. Winkler, 2002 Ohio App. LEXIS 4857, *9 (1st Dist. 2002) (“Winkler I”), aff’d, 2002- Ohio-7334, 2002 Ohio App. LEXIS 7225 (1st Dist. Dec. 31, 2002) (“Winkler II”), aff’d, 101 Ohio St. 3d 382, 2004-Ohio- 1581, 805 N.E.2d 1094 (2004) (“Winkler III”). See also, “The Catch-all Exception: Court Records,” page 54. 667 See generally, State ex rel. Cincinnati Enquirer v. Winkler,101 Ohio St. 3d 382, 383, 2004-Ohio-1581, *P5, 805 N.E. 2d 1094, 1096 (2004) (“Winkler III”) (“it is apparent that court records fall within the broad definition of a ‘public record.’”) 668 State ex rel. Mothers Against Drunk Drivers v. Gosser, 20 Ohio St.3d 30, 33, 485 N.E.2d 706, 710 (1985); State ex rel. Cincinnati Enquirer v. Dinkelacker, No. C-010153, 2001 Ohio App. LEXIS 3312 (1st Dist. July 27, 2001). But cf., State ex rel. Beacon Journal Publ’g Co. v. Bond, 98 Ohio St.3d 146, 2002 Ohio 7117, 781 N.E.2d 180 (2002) (juror names, addresses, and questionnaire responses are not public records); State ex rel. Cincinnati Enquirer v. Winkler,101 Ohio St. 3d 382, 383, 2004-Ohio-1581, *P6, 805 N.E. 2d 1094, 1096 (2004) (“Winkler III”) (properly sealed court records cease to be public records.) 669 State ex rel. Cincinnati Enquirer v. Dinkelacker, No. C-010153, 2001 Ohio App. LEXIS 3312 (1st Dist. July 27, 2001).

Auditor of State Mary Taylor, CPA · Ohio Attorney General, Marc Dann Page 91 Ohio Sunshine Laws 2008: An Open Government Resource Manual access exists.670 Under such circumstances, the court may impose a protective order prohibiting release of the records.671

Similarly, where court records have been properly expunged or sealed, they are not available for public disclosure.672 Even absent statutory authority, trial courts, “in unusual and exceptional circumstances,” have the inherent authority to seal court records.673 When exercising this authority, however, courts should balance the individual’s privacy interest against the government’s legitimate need to provide public access to records of criminal proceedings.674

¾ Constitutional Access and Statutory Access Compared. The Ohio Supreme Court has distinguished between (1) public records access and (2) constitutional access to jurors’ personal information – specifically, jurors’ names and home addresses, as well as their responses on written questionnaires.675 While such information is not a “public record,”676 it may, nevertheless, be subject to public disclosure based on constitutional principles.677

The Court explained that the personal information of these private citizens is not “public record” because it does nothing to “shed light” on the operations of the court.678 However, there is a constitutional presumption that this information will be publicly accessible in criminal proceedings.679 As a result, the jurors’ personal information will be publicly accessible unless there is an “overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest.”680

670 State ex rel. Vindicator Printing Co. v. Watkins, 66 Ohio St.3d 129, 609 N.E.2d 551 (1993) (prohibiting disclosure of pretrial court records prejudicing rights of criminal defendant); Adams v. Metallica, No. C-00513, 2001 Ohio App. LEXIS 2434 (1st Dist. June 1, 2001) (applying balancing test to determine whether prejudicial record should be released where filed with the court.) But see, State ex rel. Highlander v.Rudduck, 103 Ohio St. 3d 370, 2004-Ohio-4952, 816 N.E. 2d 213 (2004) (pending appeal from court order unsealing divorce records does not preclude writ of mandamus claim.) 671 State ex rel. Cincinnati Enquirer v. Dinkelacker, No. C-010153, 2001 Ohio App. LEXIS 3312 (1st Dist. July 27, 2001) (trial judge required to determine whether release of records would jeopardize defendant’s right to a fair trial.) 672 State ex rel. Cincinnati Enquirer v. Winkler,101 Ohio St. 3d 382, 2004-Ohio-1581, 805 N.E. 2d 1094 (2004) (“Winkler III”) (affirming trial court’s sealing order per R.C. 2953.52). See also, “Catch-all Exception: Court Records,” page 54. 673 Pepper Pike v. Doe, 66 Ohio St. 2d 274, 421 N.E.2d 1303 (1981). But cf., State ex rel. Highlander v. Rudduck, 103 Ohio St. 3d 370, 2004-Ohio-4952, 816 N.E. 2d 213 (2004) (divorce records not properly sealed when order results from “unwritten and informal court policy”). 674 Pepper Pike v. Doe, 66 Ohio St. 2d 274, 421 N.E.2d 1303, paragraph two of the syllabus (1981). 675 State ex rel. Beacon Journal Publ’g Co. v. Bond, 98 Ohio St.3d 146, 2002-Ohio-7117, 781 N.E.2d 180 (2002). 676 State ex rel. Beacon Journal Publ’g Co. v. Bond, 98 Ohio St.3d 146, paragraph one of the syllabus, 2002-Ohio-7117, 781 N.E.2d 180 (2002) (juror names, addresses, and questionnaire responses are not “public records” because the information does not shed light on court’s operations.) 677 State ex rel. Beacon Journal Publ’g Co. v. Bond, 98 Ohio St.3d 146, paragraph two of the syllabus, 2002-Ohio-7117, 781 N.E.2d 180 (2002) (1st amendment qualified right of access extends to juror names, addresses, and questionnaire responses.) 678 State ex rel. Beacon Journal Publ’g Co. v. Bond, 98 Ohio St.3d 146, 2002-Ohio-7117, P11, 781 N.E.2d 180 (2002) (citing State ex rel. McCleary v. Roberts, 88 Ohio St.3d 365, 2000-Ohio-345, 725 N.E.2d 1144 (2000)). See also, State ex rel. Montgomery Cty. Public Defender v. Siroki, 108 Ohio St.3d 207, 2006-Ohio-662 (2006) (social security numbers in court records do not “shed light on any government activity.”) 679 State ex rel. Beacon Journal Publ’g Co. v. Bond, 98 Ohio St.3d 146, 2002-Ohio-7117, P19, 781 N.E.2d 180 (2002). 680 State ex rel. Beacon Journal Publ’g Co. v. Bond, 98 Ohio St.3d 146, 2002-Ohio-7117, paragraph 2 of the syllabus, 781 N.E.2d 180 (2002) (quoting Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 510, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984)) (internal quotations omitted.) See also, 2004 Ohio Atty. Gen. Ops. No. 04-045, 2004 Ohio AG LEXIS 47 (restricting

Page 92 Auditor of State Mary Taylor, CPA · Ohio Attorney General, Marc Dann Ohio Sunshine Laws 2008: An Open Government Resource Manual

Nevertheless, the Ohio Supreme Court also concluded, in a unanimous decision, that Social Security numbers contained in criminal case files are appropriately redacted before public disclosure.681 According to the Court, permitting the court clerk to redact SSNs before disclosing court records “does not contravene the purpose of the Public Records Act, which is ‘to expose government activity to public scrutiny.’ Revealing individuals’ Social Security numbers that are contained in criminal records does not shed light on any government activity.”682

public access to information in criminal case file may be accomplished only where concealment “is essential to preserve higher values and is narrowly tailored to serve an overriding interest.”) 681 State ex rel. Montgomery Cty. Public Defender v. Siroki, 108 Ohio St.3d 207, 2006-Ohio-662 (2006). See also, “Public Records Act: Common Issues, Social Security Numbers,” page 84. 682 State ex rel. Montgomery Cty. Public Defender v. Siroki, 108 Ohio St.3d 207, 2006-Ohio-662 at P21 (2006).

Auditor of State Mary Taylor, CPA · Ohio Attorney General, Marc Dann Page 93 Ohio Sunshine Laws 2008: An Open Government Resource Manual

Page 94 Auditor of State Mary Taylor, CPA · Ohio Attorney General, Marc Dann Ohio Sunshine Laws 2008: An Open Government Resource Manual Appendix A: Ohio Revised Code – Open Government Sections

Editor’s Note: Check with your legal counsel for current versions of these Ohio Revised Code Sections, which pertain to open meetings of public bodies, and the creation, maintenance, preservation, access, transfer and disposal of records by public entities in Ohio. Also, check the Attorney General’s website at www.ag.state.oh.us and the Auditor of State’s website at www.auditor.state.oh.us for recent court decisions impacting Ohio’s Open Government Laws.

 Records Management Sections

§ 9.01 Official records - preserving and maintaining.

When any officer, office, court, commission, board, institution, department, agent, or employee of the state, of a county, or of any other political subdivision who is charged with the duty or authorized or required by law to record, preserve, keep, maintain, or file any record, document, plat, court file, paper, or instrument in writing, or to make or furnish copies of any of them, deems it necessary or advisable, when recording or making a copy or reproduction of any of them or of any such record, for the purpose of recording or copying, preserving, and protecting them, reducing space required for storage, or any similar purpose, to do so by means of any photostatic, photographic, miniature photographic, film, microfilm, or microphotographic process, or perforated tape, magnetic tape, other magnetic means, electronic data processing, machine readable means, or graphic or video display, or any combination of those processes, means, or displays, which correctly and accurately copies, records, or reproduces, or provides a medium of copying, recording, or reproducing, the original record, document, plat, court file, paper, or instrument in writing, such use of any of those processes, means, or displays for any such purpose is hereby authorized. Any such records, copies, or reproductions may be made in duplicate, and the duplicates shall be stored in different buildings. The film or paper used for a process shall comply with the minimum standards of quality approved for permanent photographic records by the national bureau of standards. All such records, copies, or reproductions shall carry a certificate of authenticity and completeness, on a form specified by the director of administrative services through the state records program.

Any such officer, office, court, commission, board, institution, department, agent, or employee of the state, of a county, or of any other political subdivision may purchase or rent required equipment for any such photographic process and may enter into contracts with private concerns or other governmental agencies for the development of film and the making of reproductions of film as a part of any such photographic process. When so recorded, or copied or reproduced to reduce space required for storage or filing of such records, such photographs, microphotographs, microfilms, perforated tape, magnetic tape, other magnetic means, electronic data processing, machine readable means, graphic or video display, or combination of these processes, means, or displays, or films, or prints made therefrom, when properly identified by the officer by whom or

Ohio Attorney General Marc Dann • Auditor of State Mary Taylor, CPA Appendix A-1 Ohio Sunshine Laws 2008: An Open Government Resource Manual under whose supervision they were made, or who has their custody the original record, or record made by other legally authorized means, could have been so introduced and received. Certified or authenticated copies or prints of such photographs, microphotographs, films, microfilms, perforated tape, magnetic tape, other magnetic means, electronic data processing, machine readable means, graphic or video display, or combination of these processes, means, or displays, shall be admitted in evidence equally with the original.

Such photographs, microphotographs, microfilms, or films shall be placed and kept in conveniently accessible, fireproof, and insulated files, cabinets, or containers, and provisions shall be made for preserving, safekeeping, using, examining, exhibiting, projecting, and enlarging them whenever requested, during office hours.

All persons utilizing the methods described in this section for keeping records and information shall keep and make readily available to the public the machines and equipment necessary to reproduce the records and information in a readable form.

Effective Date: 07-01-1985; 09-26-2003

______§ 121.211. Retention and disposition of records.

Records in the custody of each agency shall be retained for time periods in accordance with law establishing specific retention periods, and in accordance with retention periods or disposition instructions established by the state records administration.

Effective Date: 07-01-1985

______§ 149.31. Archives administration.

(A) The Ohio historical society, in addition to its other functions, shall function as the state archives administration for the state and its political subdivisions.

It shall be the function of the state archives administration to preserve government archives, documents, and records of historical value that may come into its possession from public or private sources.

The archives administration shall evaluate, preserve, arrange, service repair, or make other disposition of, including transfer to public libraries, county historical societies, state universities, or other public or quasi-public institutions, agencies, or corporations, those public records of the state and its political subdivisions that may come into its possession under this section. Those public records shall be transferred by written agreement only, and only to public or quasi-public institutions, agencies, or corporations capable of meeting accepted archival standards for housing and use.

Appendix A-2 Ohio Attorney General Marc Dann • Auditor of State Mary Taylor, CPA Ohio Sunshine Laws 2008: An Open Government Resource Manual The archives administration shall be headed by a trained archivist designated by the Ohio historical society and shall make its services available to county, municipal, township, school district, library, and special taxing district records commissions upon request. The archivist shall be designated as the “state archivist.”

(B) The archives administration may purchase or procure for itself, or authorize the board of trustees of an archival institution to purchase or procure, from an insurance company licensed to do business in this state policies of insurance insuring the administration or the members of the board and their officers, employees, and agents against liability on account of damage or injury to persons and property resulting from any act or omission of the board members, officers, employees, and agents in their official capacity.

(C) Notwithstanding any other provision of the Revised Code to the contrary, the archives administration may establish a fee schedule, which may include the cost of labor, for researching, retrieving, copying, and mailing copies of public records in the state archives. Revisions to the fee schedule shall be subject to approval by the board of trustees of the Ohio historical society.

Effective Date: 09-26-2003; 2006 HB9 09-29-2007

______§ 149.33. State records program.

(A) The department of administrative services shall have responsibility for establishing and administering a state records program for all state agencies, except for state-supported institutions of higher education. The department shall apply efficient and economical management methods to the creation, utilization, maintenance, retention, preservation, and disposition of state records.

There is hereby established within the department of administrative services a state records program, which shall be under the control and supervision of the director of administrative services or the director’s appointed deputy.

(B) The boards of trustees of state-supported institutions of higher education shall have full responsibility for establishing and administering a records program for their respective institutions. The boards shall apply efficient and economical management methods to the creation, utilization, maintenance, retention, preservation, and disposition of the records of their respective institutions.

Effective Date: 09-26-2003

______§ 149.331. State record administration program.

The state records program of the department of administrative services shall do all of the following:

Ohio Attorney General Marc Dann • Auditor of State Mary Taylor, CPA Appendix A-3 Ohio Sunshine Laws 2008: An Open Government Resource Manual (A) Establish and promulgate in consultation with the state archivist standards, procedures, and techniques for the effective management of state records;

(B) Review applications for one-time records disposal and schedules of records retention and destruction submitted by state agencies in accordance with section 149.333 of the Revised Code;

(C) Establish “general schedules” proposing the disposal, after the lapse of specified periods of time, of records of specified form or character common to several or all agencies that either have accumulated or may accumulate in such agencies and that apparently will not, after the lapse of the periods specified, have sufficient administrative, legal, fiscal, or other value to warrant their further preservation by the state;

(D) Establish and maintain a records management training program, and provide a basic consulting service, for personnel involved in record-making and record-keeping functions of departments, offices, and institutions;

(E) Provide for the disposition of any remaining records of any state agency, board, or commission, whether in the executive, judicial, or legislative branch of government, that has terminated its operations. After the closing of the Ohio veterans’ children’s home, the resident records of the home and the resident records of the home when it was known as the soldiers’ and sailors’ orphans’ home required to be maintained by approved records retention schedules shall be administered by the state department of education pursuant to this chapter, the administrative records of the home required to be maintained by approved records retention schedules shall be administered by the department of administrative services pursuant to this chapter, and historical records of the home shall be transferred to an appropriate archival institution in this state prescribed by the state records program.

(F) Establish a centralized program coordinating micrographics standards, training, and services for the benefit of all state agencies;

(G) Establish and publish in accordance with the applicable law necessary procedures and rules for the retention and disposal of state records.

This section does not apply to the records of state-supported institutions of higher education, which shall keep their own records.

Effective Date: 09-26-2003

______§ 149.332. Records management programs in the legislative and judicial branches.

Upon request the director of administrative services and the state archivist shall assist and advise in the establishment of records management programs in the legislative and judicial branches of state government and shall, as required by them, provide program services similar to those available to the executive branch under section 149.33 of the Revised Code. Prior to the disposal

Appendix A-4 Ohio Attorney General Marc Dann • Auditor of State Mary Taylor, CPA Ohio Sunshine Laws 2008: An Open Government Resource Manual of any records, the state archivist shall be allowed sixty days to select for preservation in the state archives those records the state archivist determines to have continuing historical value.

Effective Date: 09-26-2003

______§ 149.333. Applications for records disposal or transfer; schedules of retention and destruction.

No state agency shall retain, destroy, or otherwise transfer its state records in violation of this section. This section does not apply to state-supported institutions of higher education.

Each state agency shall submit to the state records program under the director of administrative services all applications for records disposal or transfer and all schedules of records retention and destruction. The state records program shall review the applications and schedules and provide written approval, rejection, or modification of an application or schedule. The state records program shall then forward the application for records disposal or transfer or the schedule for retention or destruction, with the program’s recommendation attached, to the auditor of state for review and approval. The decision of the auditor of state to approve, reject, or modify the application or schedule shall be based upon the continuing administrative and fiscal value of the state records to the state or to its citizens. If the auditor of state disapproves the action by the state agency, the auditor of state shall so inform the state agency through the state records program within sixty days, and the records shall not be destroyed.

At the same time, the state records program shall forward the application for records disposal or transfer or the schedule for retention or destruction to the state archivist for review and approval. The state archivist shall have sixty days to select for custody the state records that the state archivist determines to be of continuing historical value. Records not selected shall be disposed of in accordance with this section.

Effective Date: 09-26-2003

______§ 149.34. Records management procedures for all state agencies.

The head of each state agency, office, institution, board, or commission shall do the following:

(A) Establish, maintain, and direct an active continuing program for the effective management of the records of the state agency;

(B) Submit to the state records program, in accordance with applicable standards and procedures, schedules proposing the length of time each record series warrants retention for administrative, legal, or fiscal purposes after it has been received or created by the agency. The head also shall submit to the state records program applications for disposal of records in the head’s custody that are not needed in the transaction of current business and are not otherwise scheduled for retention or destruction.

Ohio Attorney General Marc Dann • Auditor of State Mary Taylor, CPA Appendix A-5 Ohio Sunshine Laws 2008: An Open Government Resource Manual (C) Within one year after their date of creation or receipt, schedule all records for disposition or retention in the manner prescribed by applicable law and procedures.

This section does not apply to state-supported institutions of higher education.

Effective Date: 09-26-2003

______§ 149.38. County records commission.

(A) There is hereby created in each county a county records commission, composed of a member of the board of county commissioners as chairperson, the prosecuting attorney, the auditor, the recorder, and the clerk of the court of common pleas. The commission shall appoint a secretary, who may or may not be a member of the commission and who shall serve at the pleasure of the commission. The commission may employ an archivist or records manager to serve under its direction. The commission shall meet at least once every six months and upon call of the chairperson.

(B) The functions of the county records commission shall be to provide rules for retention and disposal of records of the county and to review applications for one-time disposal of obsolete records and schedules of records retention and disposition submitted by county offices. The commission may dispose of records pursuant to the procedure outlined in this section. The commission, at any time, may review any schedule it has previously approved and, for good cause shown, may revise that schedule, subject to division (D) of this section.

(C) When the county records commission has approved any county application for one-time disposal of obsolete records or any schedule of records retention and disposition, the commission shall send that application or schedule to the Ohio historical society for its review. The Ohio historical society shall review the application or schedule within a period of not more than sixty days after its receipt of it. Upon completion of its review, the Ohio historical society shall forward the application for one-time disposal of obsolete records or the schedule of records retention and disposition to the auditor of state for the auditor’s approval or disapproval. The auditor shall approve or disapprove the application or schedule within a period of not more than sixty days after receipt of it. Before public records are to be disposed of, the commission shall inform the Ohio historical society of the disposal through the submission of a certificate of records disposal and shall give the society the opportunity for a period of fifteen business days to select for its custody those records that it considers to be of continuing historical value. Upon the expiration of the fifteen-business-day period, the county records commission also shall notify the public libraries, county historical society, state universities, and other public or quasi- public institutions, agencies, or corporations in the county that have provided the commission with their name and address for these notification purposes, that the commission has informed the Ohio historical society of the records disposal and that the notified entities, upon written agreement with the Ohio historical society pursuant to section 149.31 of the Revised Code, may select records of continuing historical value, including records that may be distributed to any of the notified entities under section 149.31 of the Revised Code.

Appendix A-6 Ohio Attorney General Marc Dann • Auditor of State Mary Taylor, CPA Ohio Sunshine Laws 2008: An Open Government Resource Manual (D) The rules of the county records commission shall include a rule that requires any receipts, checks, vouchers, or other similar records pertaining to expenditures from the delinquent tax and assessment collection fund created in section 321.261 of the Revised Code, from the real estate assessment fund created in section 325.31 of the Revised Code, or from amounts allocated for the furtherance of justice to the county sheriff under section 325.071 of the Revised Code or to the prosecuting attorney under section 325.12 of the Revised Code to be retained for at least four years.

(E) No person shall knowingly violate the rule adopted under division (D) of this section. Whoever violates that rule is guilty of a misdemeanor of the first degree.

Effective Date: 08-19-1992; 11-05-2004; 2006 HB9 09-29-2007

______§ 149.39. Records commission – municipal corporation.

There is hereby created in each municipal corporation a records commission composed of the chief executive or the chief executive’s appointed representative, as chairperson, and the chief fiscal officer, the chief legal officer, and a citizen appointed by the chief executive. The commission shall appoint a secretary, who may or may not be a member of the commission and who shall serve at the pleasure of the commission. The commission may employ an archivist or records manager to serve under its direction. The commission shall meet at least once every six months and upon call of the chairperson.

The functions of the commission shall be to provide rules for retention and disposal of records of the municipal corporation and to review applications for one-time disposal of obsolete records and schedules of records retention and disposition submitted by municipal offices. The commission may dispose of records pursuant to the procedure outlined in this section. The commission at any time may review any schedule it has previously approved and for good cause shown may revise that schedule.

When the municipal records commission has approved any application for one-time disposal of obsolete records or any schedule of records retention and disposition, the commission shall send that application or schedule to the Ohio historical society for its review. The Ohio historical society shall review the application or schedule within a period of not more than sixty days after its receipt of it. Upon completion of its review, the Ohio historical society shall forward the application for one-time disposal of obsolete records or the schedule of records retention and disposition to the auditor of state for the auditor’s approval or disapproval. The auditor shall approve or disapprove the application or schedule within a period of not more than sixty days after receipt of it. Before public records are to be disposed of, the commission shall inform the Ohio historical society of the disposal through the submission of a certificate of records disposal and shall give the society the opportunity for a period of fifteen business days to select for its custody those public records that it considers to be of continuing historical value.

Effective Date: 12-23-1986; 2006 HB9 09-29-2007

Ohio Attorney General Marc Dann • Auditor of State Mary Taylor, CPA Appendix A-7 Ohio Sunshine Laws 2008: An Open Government Resource Manual ______§ 149.40. Only necessary records to be made.

The head of each public office shall cause to be made only such records as are necessary for the adequate and proper documentation of the organization, functions, policies, decisions, procedures, and essential transactions of the agency and for the protection of the legal and financial rights of the state and persons directly affected by the agency’s activities.

Effective Date: 07-01-1985

______§ 149.41. School district and educational service center records commission.

There is hereby created in each city, local, joint vocational, and exempted village school district a school district records commission and in each educational service center an educational service center records commission. Each records commission shall be composed of the president, the treasurer of the board of education or governing board of the educational service center, and the superintendent of schools in each such district or educational service center. The commission shall meet at least once every twelve months.

The function of the commission shall be to review applications for one-time disposal of obsolete records and schedules of records retention and disposition submitted by any employee of the school district or educational service center. The commission may dispose of records pursuant to the procedure outlined in this section. The commission at any time may review any schedule it has previously approved and for good cause shown may revise that schedule.

When the school district records commission or the educational service center records commission has approved any application for one-time disposal of obsolete records or any schedule of records retention and disposition, the appropriate commission shall send that application or schedule to the Ohio historical society for its review. The Ohio historical society shall review the application or schedule within a period of not more than sixty days after its receipt of it. Upon completion of its review, the Ohio historical society shall forward the application for one-time disposal of obsolete records or the schedule of records retention and disposition to the auditor of state for the auditor’s approval or disapproval. The auditor shall approve or disapprove the application or schedule within a period of not more than sixty days after receipt of it. Before public records are to be disposed of, the appropriate commission shall inform the Ohio historical society of the disposal through the submission of a certificate of records disposal and shall give the society the opportunity for a period of fifteen business days to select for its custody those public records that it considers to be of continuing historical value. The society may not review or select for its custody either of the following:

(A) Records containing personally identifiable information concerning any pupil attending a public school other than directory information, as defined in section 3319.321 of the Revised Code, without the written consent of the parent, guardian, or custodian of each such pupil who is less than eighteen years of age, or without the written consent of each such pupil who is eighteen years of age or older;

Appendix A-8 Ohio Attorney General Marc Dann • Auditor of State Mary Taylor, CPA Ohio Sunshine Laws 2008: An Open Government Resource Manual (B) Records the release of which would, according to the “Family Educational Rights and Privacy Act of 1974,” 88 Stat. 571, 20 U.S.C.A. 1232g, disqualify a school or other educational institution from receiving federal funds.

Effective Date: 09-29-1995; 2006 HB9 09-29-2007

______§149.411 Library records commission.

There is hereby created in each county free public library, municipal free public library, township free public library, county library district, and regional library district a library records commission composed of the members and the clerk of the board of library trustees of the appropriate public library or library district. The commission shall meet at least once every twelve months.

The functions of the commission shall be to review applications for one-time disposal of obsolete records and schedules of records retention and disposition submitted by any employee of the library. The commission may dispose of records pursuant to the procedure outlined in this section. The commission at any time may review any schedule it has previously approved and for good cause shown may revise that schedule.

When the appropriate library records commission has approved any library application for one- time disposal of obsolete records or any schedule of records retention and disposition, the commission shall send that application or schedule to the Ohio historical society for its review. The Ohio historical society shall review the application or schedule within a period of not more than sixty days after its receipt of it. Upon completion of its review, the Ohio historical society shall forward the application for one-time disposal of obsolete records or the schedule of records retention and disposition to the auditor of state for the auditor’s approval or disapproval. The auditor shall approve or disapprove the application or schedule within a period of not more than sixty days after receipt of it. Before public records are to be disposed of, the commission shall inform the Ohio historical society of the disposal through the submission of a certificate of records disposal and shall give the society the opportunity for a period of fifteen business days to select for its custody those public records that it considers to be of continuing historical value. The Ohio historical society may not review or select for its custody any records pursuant to section 149.432 of the Revised Code.

Effective Date: 2006 HB9 09-29-2007

______§149.412 Special taxing district records commission.

There is hereby created in each special taxing district that is a public office as defined in section 149.011 of the Revised Code and that is not specifically designated in section 149.38, 149.39, 149.41, 149.411, or 149.42 of the Revised Code a special taxing district records commission composed of, at a minimum, the chairperson, a fiscal representative, and a legal representative

Ohio Attorney General Marc Dann • Auditor of State Mary Taylor, CPA Appendix A-9 Ohio Sunshine Laws 2008: An Open Government Resource Manual of the governing board of the special taxing district. The commission shall meet at least once every twelve months and upon the call of the chairperson.

The functions of the commission shall be to review applications for one-time disposal of obsolete records and schedules of records retention and disposition submitted by any employee of the special taxing district. The commission may dispose of records pursuant to the procedure outlined in this section. The commission at any time may review any schedule it has previously approved and for good cause shown may revise that schedule.

When the special taxing district records commission has approved any special taxing district application for one-time disposal of obsolete records or any schedule of records retention and disposition, the commission shall send that application or schedule to the Ohio historical society for its review. The Ohio historical society shall review the application or schedule within a period of not more than sixty days after its receipt of it. Upon completion of its review, the Ohio historical society shall forward the application for one-time disposal of obsolete records or the schedule of records retention and disposition to the auditor of state for the auditor’s approval or disapproval. The auditor shall approve or disapprove the application or schedule within a period of not more than sixty days after receipt of it. Before public records are to be disposed of, the commission shall inform the Ohio historical society of the disposal through the submission of a certificate of records disposal and shall give the society the opportunity for a period of fifteen business days to select for its custody those public records that it considers to be of continuing historical value.

Effective Date: 2006 HB9 09-29-2007

______§ 149.42. Township records commission.

There is hereby created in each township a township records commission, composed of the chairperson of the board of township trustees and the fiscal officer of the township. The commission shall meet at least once every twelve months and upon call of the chairperson.

The function of the commission shall be to review applications for one-time disposal of obsolete records and schedules of records retention and disposition submitted by township offices. The commission may dispose of records pursuant to the procedure outlined in this section. The commission at any time may review any schedule it has previously approved and for good cause shown may revise that schedule.

When the township records commission has approved any township application for one-time disposal of obsolete records or any schedule of records retention and disposition, the commission shall send that application or schedule to the Ohio historical society for its review. The Ohio historical society shall review the application or schedule within a period of not more than sixty days after its receipt of it. Upon completion of its review, the Ohio historical society shall forward the application for one-time disposal of obsolete records or the schedule of records retention and disposition to the auditor of state for the auditor’s approval or disapproval. The auditor shall approve or disapprove the application or schedule within a period of not more than

Appendix A-10 Ohio Attorney General Marc Dann • Auditor of State Mary Taylor, CPA Ohio Sunshine Laws 2008: An Open Government Resource Manual sixty days after receipt of it. Before public records are to be disposed of, the commission shall inform the Ohio historical society of the disposal through the submission of a certificate of records disposal and shall give the society the opportunity for a period of fifteen business days to select for its custody those public records that it considers to be of continuing historical value.

Effective Date: 05-08-1996; 12-20-2005; 2006 HB9 09-29-2007

 Open Meetings Sections

§ 121.22. Meetings of public bodies to be public; exceptions.

(A) This section shall be liberally construed to require public officials to take official action and to conduct all deliberations upon official business only in open meetings unless the subject matter is specifically excepted by law.

(B) As used in this section:

(1) "Public body" means any of the following:

(a) Any board, commission, committee, council, or similar decision--making body of a state agency, institution, or authority, and any legislative authority or board, commission, committee, council, agency, authority, or similar decision-- making body of any county, township, municipal corporation, school district, or other political subdivision or local public institution;

(b) Any committee or subcommittee of a body described in division (B)(1)(a) of this section;

(c) A court of jurisdiction of a sanitary district organized wholly for the purpose of providing a water supply for domestic, municipal, and public use when meeting for the purpose of the appointment, removal, or reappointment of a member of the board of directors of such a district pursuant to section 6115.10 of the Revised Code, if applicable, or for any other matter related to such a district other than litigation involving the district. As used in division (B)(1)(c) of this section, "court of jurisdiction" has the same meaning as "court" in section 6115.01 of the Revised Code.

(2) "Meeting" means any prearranged discussion of the public business of the public body by a majority of its members.

(3) "Regulated individual" means either of the following:

(a) A student in a state or local public educational institution;

Ohio Attorney General Marc Dann • Auditor of State Mary Taylor, CPA Appendix A-11 Ohio Sunshine Laws 2008: An Open Government Resource Manual

(b) A person who is, voluntarily or involuntarily, an inmate, patient, or resident of a state or local institution because of criminal behavior, mental illness or retardation, disease, disability, age, or other condition requiring custodial care.

(4) "Public office" has the same meaning as in section 149.011 [149.01.1] of the Revised Code.

(C) All meetings of any public body are declared to be public meetings open to the public at all times. A member of a public body shall be present in person at a meeting open to the public to be considered present or to vote at the meeting and for purposes of determining whether a quorum is present at the meeting. The minutes of a regular or special meeting of any public body shall be promptly prepared, filed, and maintained and shall be open to public inspection. The minutes need only reflect the general subject matter of discussions in executive sessions authorized under division (G) or (J) of this section.

(D) This section does not apply to any of the following:

(1) A grand jury;

(2) An audit conference conducted by the auditor of state or independent certified public accountants with officials of the public office that is the subject of the audit;

(3) The adult parole authority when its hearings are conducted at a correctional institution for the sole purpose of interviewing inmates to determine parole or pardon;

(4) The organized crime investigations commission established under section 177.01 of the Revised Code;

(5) Meetings of a child fatality review board established under section 307.621 [307.62.1] of the Revised Code and meetings conducted pursuant to sections 5153.171[5153.17.1] to 5153.173 [5153.17.3] of the Revised Code;

(6) The state medical board when determining whether to suspend a certificate without a prior hearing pursuant to division (G) of either section 4730.25 or 4731.22 of the Revised Code;

(7) The board of nursing when determining whether to suspend a license or certificate without a prior hearing pursuant to division (B) of section 4723.281 [4723.28.1] of the Revised Code;

(8) The state board of pharmacy when determining whether to suspend a license without a prior hearing pursuant to division (D) of section 4729.16 of the Revised Code;

(9) The state chiropractic board when determining whether to suspend a license without a hearing pursuant to section 4734.37 of the Revised Code;

Appendix A-12 Ohio Attorney General Marc Dann • Auditor of State Mary Taylor, CPA Ohio Sunshine Laws 2008: An Open Government Resource Manual (10) The executive committee of the emergency response commission when determining whether to issue an enforcement order or request that a civil action, civil penalty action, or criminal action be brought to enforce Chapter 3750. of the Revised Code.

(E) The controlling board, the development financing advisory council, the industrial technology and enterprise advisory council, the tax credit authority, or the minority development financing advisory board, when meeting to consider granting assistance pursuant to Chapter 122. or 166. of the Revised Code, in order to protect the interest of the applicant or the possible investment of public funds, by unanimous vote of all board, council, or authority members present, may close the meeting during consideration of the following information confidentially received by the authority, council, or board from the applicant:

(1) Marketing plans;

(2) Specific business strategy;

(3) Production techniques and trade secrets;

(4) Financial projections;

(5) Personal financial statements of the applicant or members of the applicant's immediate family, including, but not limited to, tax records or other similar information not open to public inspection.

The vote by the authority, council, or board to accept or reject the application, as well as all proceedings of the authority, council, or board not subject to this division, shall be open to the public and governed by this section.

(F) Every public body, by rule, shall establish a reasonable method whereby any person may determine the time and place of all regularly scheduled meetings and the time, place, and purpose of all special meetings. A public body shall not hold a special meeting unless it gives at least twenty-four hours' advance notice to the news media that have requested notification, except in the event of an emergency requiring immediate official action. In the event of an emergency, the member or members calling the meeting shall notify the news media that have requested notification immediately of the time, place, and purpose of the meeting. The rule shall provide that any person, upon request and payment of a reasonable fee, may obtain reasonable advance notification of all meetings at which any specific type of public business is to be discussed. Provisions for advance notification may include, but are not limited to, mailing the agenda of meetings to all subscribers on a mailing list or mailing notices in self-addressed, stamped envelopes provided by the person.

(G) Except as provided in division (J) of this section, the members of a public body may hold an executive session only after a majority of a quorum of the public body determines, by a roll call vote, to hold an executive session and only at a regular or special meeting for the sole purpose of the consideration of any of the following matters:

Ohio Attorney General Marc Dann • Auditor of State Mary Taylor, CPA Appendix A-13 Ohio Sunshine Laws 2008: An Open Government Resource Manual

(1) To consider the appointment, employment, dismissal, discipline, promotion, demotion, or compensation of a public employee or official, or the investigation of charges or complaints against a public employee, official, licensee, or regulated individual, unless the public employee, official, licensee, or regulated individual requests a public hearing. Except as otherwise provided by law, no public body shall hold an executive session for the discipline of an elected official for conduct related to the performance of the elected official's official duties or for the elected official's removal from office. If a public body holds an executive session pursuant to division (G)(1) of this section, the motion and vote to hold that executive session shall state which one or more of the approved purposes listed in division (G)(1) of this section are the purposes for which the executive session is to be held, but need not include the name of any person to be considered at the meeting;

(2) To consider the purchase of property for public purposes, or for the sale of property at competitive bidding, if premature disclosure of information would give an unfair competitive or bargaining advantage to a person whose personal, private interest is adverse to the general public interest. No member of a public body shall use division (G)(2) of this section as a subterfuge for providing covert information to prospective buyers or sellers. A purchase or sale of public property is void if the seller or buyer of the public property has received covert information from a member of a public body that has not been disclosed to the general public in sufficient time for other prospective buyers and sellers to prepare and submit offers. If the minutes of the public body show that all meetings and deliberations of the public body have been conducted in compliance with this section, any instrument executed by the public body purporting to convey, lease, or otherwise dispose of any right, title, or interest in any public property shall be conclusively presumed to have been executed in compliance with this section insofar as title or other interest of any bona fide purchasers, lessees, or transferees of the property is concerned;

(3) Conferences with an attorney for the public body concerning disputes involving the public body that are the subject of pending or imminent court action;

(4) Preparing for, conducting, or reviewing negotiations or bargaining sessions with public employees concerning their compensation or other terms and conditions of their employment;

(5) Matters required to be kept confidential by federal law or regulations or state statutes;

(6) Details relative to the security arrangements and emergency response protocols for a public body or a public office, if disclosure of the matters discussed could reasonably be expected to jeopardize the security of the public body or public office;

(7) In the case of a county hospital operated pursuant to Chapter 339 of the Revised Code, to consider trade secrets, as defined in section 1333.61 of the Revised Code.

If a public body holds an executive session to consider any of the matters listed in divisions (G)(2) to (7) of this section, the motion and vote to hold that executive session shall state which

Appendix A-14 Ohio Attorney General Marc Dann • Auditor of State Mary Taylor, CPA Ohio Sunshine Laws 2008: An Open Government Resource Manual one or more of the approved matters listed in those divisions are to be considered at the executive session.

A public body specified in division (B)(1)(c) of this section shall not hold an executive session when meeting for the purposes specified in that division.

(H) A resolution, rule, or formal action of any kind is invalid unless adopted in an open meeting of the public body. A resolution, rule, or formal action adopted in an open meeting that results from deliberations in a meeting not open to the public is invalid unless the deliberations were for a purpose specifically authorized in division (G) or (J) of this section and conducted at an executive session held in compliance with this section. A resolution, rule, or formal action adopted in an open meeting is invalid if the public body that adopted the resolution, rule, or formal action violated division (F) of this section.

(I)(1) Any person may bring an action to enforce this section. An action under division (I)(1) of this section shall be brought within two years after the date of the alleged violation or threatened violation. Upon proof of a violation or threatened violation of this section in an action brought by any person, the court of common pleas shall issue an injunction to compel the members of the public body to comply with its provisions.

(2) (a) If the court of common pleas issues an injunction pursuant to division (I)(1) of this section, the court shall order the public body that it enjoins to pay a civil forfeiture of five hundred dollars to the party that sought the injunction and shall award to that party all court costs and, subject to reduction as described in division (I)(2) of this section, reasonable attorney's fees. The court, in its discretion, may reduce an award of attorney's fees to the party that sought the injunction or not award attorney's fees to that party if the court determines both of the following:

(i) That, based on the ordinary application of statutory law and case law as it existed at the time of violation or threatened violation that was the basis of the injunction, a well- informed public body reasonably would believe that the public body was not violating or threatening to violate this section;

(ii) That a well-informed public body reasonably would believe that the conduct or threatened conduct that was the basis of the injunction would serve the public policy that underlies the authority that is asserted as permitting that conduct or threatened conduct.

(b) If the court of common pleas does not issue an injunction pursuant to division (I)(1) of this section and the court determines at that time that the bringing of the action was frivolous conduct, as defined in division (A) of section 2323.51 of the Revised Code, the court shall award to the public body all court costs and reasonable attorney's fees, as determined by the court.

Ohio Attorney General Marc Dann • Auditor of State Mary Taylor, CPA Appendix A-15 Ohio Sunshine Laws 2008: An Open Government Resource Manual (3) Irreparable harm and prejudice to the party that sought the injunction shall be conclusively and irrebuttably presumed upon proof of a violation or threatened violation of this section.

(4) A member of a public body who knowingly violates an injunction issued pursuant to division (I)(1) of this section may be removed from office by an action brought in the court of common pleas for that purpose by the prosecuting attorney or the attorney general.

(J)(1) Pursuant to division (C) of section 5901.09 of the Revised Code, a veterans service commission shall hold an executive session for one or more of the following purposes unless an applicant requests a public hearing:

(a) Interviewing an applicant for financial assistance under sections 5901.01 to 5901.15 of the Revised Code;

(b) Discussing applications, statements, and other documents described in division (B) of section 5901.09 of the Revised Code;

(c) Reviewing matters relating to an applicant's request for financial assistance under sections 5901.01 to 5901.15 of the Revised Code.

(2) A veterans service commission shall not exclude an applicant for, recipient of, or former recipient of financial assistance under sections 5901.01 to 5901.15 of the Revised Code, and shall not exclude representatives selected by the applicant, recipient, or former recipient, from a meeting that the commission conducts as an executive session that pertains to the applicant's, recipient's, or former recipient's application for financial assistance.

(3) A veterans’ service commission shall vote on the grant or denial of financial assistance under sections 5901.01 to 5901.15 of the Revised Code only in an open meeting of the commission. The minutes of the meeting shall indicate the name, address, and occupation of the applicant, whether the assistance was granted or denied, the amount of the assistance if assistance is granted, and the votes for and against the granting of assistance.

Appendix A-16 Ohio Attorney General Marc Dann • Auditor of State Mary Taylor, CPA Ohio Sunshine Laws 2008: An Open Government Resource Manual

 Public Records Sections

§ 149.011. Definitions.

As used in this chapter, except as otherwise provided:

(A) “Public office” includes any state agency, public institution, political subdivision, or other organized body, office, agency, institution, or entity established by the laws of this state for the exercise of any function of government.

(B) “State agency” includes every department, bureau, board, commission, office, or other organized body established by the constitution and laws of this state for the exercise of any function of state government, including any state-supported institution of higher education, the general assembly, any legislative agency, any court or judicial agency, or any political subdivision or agency of a political subdivision.

(C) “Public money” includes all money received or collected by or due a public official, whether in accordance with or under authority of any law, ordinance, resolution, or order, under color of office, or otherwise. It also includes any money collected by any individual on behalf of a public office or as a purported representative or agent of the public office.

(D) “Public official” includes all officers, employees, or duly authorized representatives or agents of a public office.

(E) “Color of office” includes any act purported or alleged to be done under any law, ordinance, resolution, order, or other pretension to official right, power, or authority.

(F) “Archive” includes any public record that is transferred to the state archives or other designated archival institutions because of the historical information contained on it.

(G) “Records” includes any document, device, or item, regardless of physical form or characteristic, including an electronic record as defined in section 1306.01 of the Revised Code, created or received by or coming under the jurisdiction of any public office of the state or its political subdivisions, which serves to document the organization, functions, policies, decisions, procedures, operations, or other activities of the office.

Effective Date: 09-26-2003; 2006 HB9 09-29-2007

______§ 149.35. Laws prohibiting the destruction of records.

If any law prohibits the destruction of records, the director of administrative services, the director’s designee, or the boards of trustees of state-supported institutions of higher education shall not order their destruction or other disposition. If any law provides that records shall be kept for a specified period of time, the director of administrative services, the director’s

Ohio Attorney General Marc Dann • Auditor of State Mary Taylor, CPA Appendix A-17 Ohio Sunshine Laws 2008: An Open Government Resource Manual designee, or the boards shall not order their destruction or other disposition prior to the expiration of that period.

Effective Date: 09-26-2003

______§ 149.351. Prohibition against destruction or damage of records.

(A) All records are the property of the public office concerned and shall not be removed, destroyed, mutilated, transferred, or otherwise damaged or disposed of, in whole or in part, except as provided by law or under the rules adopted by the records commissions provided for under sections 149.38 to 149.42 of the Revised Code or under the records programs established by the boards of trustees of state-supported institutions of higher education under section 149.33 of the Revised Code. Such records shall be delivered by outgoing officials and employees to their successors and shall not be otherwise removed, transferred, or destroyed unlawfully.

(B) Any person who is aggrieved by the removal, destruction, mutilation, or transfer of, or by other damage to or disposition of a record in violation of division (A) of this section, or by threat of such removal, destruction, mutilation, transfer, or other damage to or disposition of such a record, may commence either or both of the following in the court of common pleas of the county in which division (A) of this section allegedly was violated or is threatened to be violated:

(1) A civil action for injunctive relief to compel compliance with division (A) of this section, and to obtain an award of the reasonable attorney’s fees incurred by the person in the civil action;

(2) A civil action to recover a forfeiture in the amount of one thousand dollars for each violation, and to obtain an award of the reasonable attorney’s fees incurred by the person in the civil action.

Effective Date: 07-01-1992

______§ 149.352. Replevin of public records unlawfully removed.

Upon request of the department of administrative services, the attorney general may replevin any public records which have been unlawfully transferred or removed in violation of sections 149.31 to 149.44 of the Revised Code or otherwise transferred or removed unlawfully. Such records shall be returned to the office of origin and safeguards shall be established to prevent further recurrence of unlawful transfer or removal.

Effective Date: 07-01-1985

Appendix A-18 Ohio Attorney General Marc Dann • Auditor of State Mary Taylor, CPA Ohio Sunshine Laws 2008: An Open Government Resource Manual ______§ 149.36. Authority not restricted.

The provisions of sections 149.31 to 149.42, inclusive, of the Revised Code shall not impair or restrict the authority given by other statutes over the creation of records, systems, forms, procedures, or the control over purchases of equipment by public offices.

Effective Date: 10-19-1959

______§ 149.43. Availability of public records.

(A) As used in this section:

(1) “Public record” means records kept by any public office, including, but not limited to, state, county, city, village, township, and school district units, and records pertaining to the delivery of educational services by an alternative school in Ohio kept by a nonprofit or for profit entity operating such alternative school pursuant to section 3313.533 of the Revised Code. “Public record” does not mean any of the following:

(a) Medical records;

(b) Records pertaining to probation and parole proceedings or to proceedings related to the imposition of community control sanctions and post-release control sanctions;

(c) Records pertaining to actions under section 2151.85 and division (C) of section 2919.121 of the Revised Code and to appeals of actions arising under those sections;

(d) Records pertaining to adoption proceedings, including the contents of an adoption file maintained by the department of health under section 3705.12 of the Revised Code;

(e) Information in a record contained in the putative father registry established by section 3107.062 of the Revised Code, regardless of whether the information is held by the department of job and family services or, pursuant to section 3111.69 of the Revised Code, the office of child support in the department or a child support enforcement agency;

(f) Records listed in division (A) of section 3107.42 of the Revised Code or specified in division (A) of section 3107.52 of the Revised Code;

(g) Trial preparation records;

(h) Confidential law enforcement investigatory records;

(i) Records containing information that is confidential under section 2710.03 or 4112.05 of the Revised Code;

Ohio Attorney General Marc Dann • Auditor of State Mary Taylor, CPA Appendix A-19 Ohio Sunshine Laws 2008: An Open Government Resource Manual (j) DNA records stored in the DNA database pursuant to section 109.573 of the Revised Code;

(k) Inmate records released by the department of rehabilitation and correction to the department of youth services or a court of record pursuant to division (E) of section 5120.21 of the Revised Code;

(l) Records maintained by the department of youth services pertaining to children in its custody released by the department of youth services to the department of rehabilitation and correction pursuant to section 5139.05 of the Revised Code;

(m) Intellectual property records;

(n) Donor profile records;

(o) Records maintained by the department of job and family services pursuant to section 3121.894 of the Revised Code;

(p) Peace officer, parole officer, prosecuting attorney, assistant prosecuting attorney, correctional employee, youth services employee, firefighter, or EMT residential and familial information;

(q) In the case of a county hospital operated pursuant to Chapter 339. of the Revised Code or a municipal hospital operated pursuant to Chapter 749. of the Revised Code, information that constitutes a trade secret, as defined in section 1333.61 of the Revised Code;

(r) Information pertaining to the recreational activities of a person under the age of eighteen;

(s) Records provided to, statements made by review board members during meetings of, and all work products of a child fatality review board acting under sections 307.621 to 307.629 of the Revised Code, other than the report prepared pursuant to section 307.626 of the Revised Code;

(t) Records provided to and statements made by the executive director of a public children services agency or a prosecuting attorney acting pursuant to section 5153.171 of the Revised Code other than the information released under that section;

(u) Test materials, examinations, or evaluation tools used in an examination for licensure as a nursing home administrator that the board of examiners of nursing home administrators administers under section 4751.04 of the Revised Code or contracts under that section with a private or government entity to administer;

(v) Records the release of which is prohibited by state or federal law;

(w) Proprietary information of or relating to any person that is submitted to or compiled by the Ohio venture capital authority created under section 150.01 of the Revised Code;

Appendix A-20 Ohio Attorney General Marc Dann • Auditor of State Mary Taylor, CPA Ohio Sunshine Laws 2008: An Open Government Resource Manual (x) Information reported and evaluations conducted pursuant to section 3701.072 of the Revised Code;

(y) Financial statements and data any person submits for any purpose to the Ohio housing finance agency or the controlling board in connection with applying for, receiving, or accounting for financial assistance from the agency, and information that identifies any individual who benefits directly or indirectly from financial assistance from the agency.

(2) “Confidential law enforcement investigatory record” means any record that pertains to a law enforcement matter of a criminal, quasi-criminal, civil, or administrative nature, but only to the extent that the release of the record would create a high probability of disclosure of any of the following:

(a) The identity of a suspect who has not been charged with the offense to which the record pertains, or of an information source or witness to whom confidentiality has been reasonably promised;

(b) Information provided by an information source or witness to whom confidentiality has been reasonably promised, which information would reasonably tend to disclose the source’s or witness’s identity;

(c) Specific confidential investigatory techniques or procedures or specific investigatory work product;

(d) Information that would endanger the life or physical safety of law enforcement personnel, a crime victim, a witness, or a confidential information source.

(3) “Medical record” means any document or combination of documents, except births, deaths, and the fact of admission to or discharge from a hospital, that pertains to the medical history, diagnosis, prognosis, or medical condition of a patient and that is generated and maintained in the process of medical treatment.

(4) “Trial preparation record” means any record that contains information that is specifically compiled in reasonable anticipation of, or in defense of, a civil or criminal action or proceeding, including the independent thought processes and personal trial preparation of an attorney.

(5) “Intellectual property record” means a record, other than a financial or administrative record, that is produced or collected by or for faculty or staff of a state institution of higher learning in the conduct of or as a result of study or research on an educational, commercial, scientific, artistic, technical, or scholarly issue, regardless of whether the study or research was sponsored by the institution alone or in conjunction with a governmental body or private concern, and that has not been publicly released, published, or patented.

(6) “Donor profile record” means all records about donors or potential donors to a public institution of higher education except the names and reported addresses of the actual donors and the date, amount, and conditions of the actual donation.

Ohio Attorney General Marc Dann • Auditor of State Mary Taylor, CPA Appendix A-21 Ohio Sunshine Laws 2008: An Open Government Resource Manual (7) “Peace officer, parole officer, prosecuting attorney, assistant prosecuting attorney, correctional employee, youth services employee, firefighter, or EMT residential and familial information” means any information that discloses any of the following about a peace officer, parole officer, prosecuting attorney, assistant prosecuting attorney, correctional employee, youth services employee, firefighter, or EMT:

(a) The address of the actual personal residence of a peace officer, parole officer, assistant prosecuting attorney, correctional employee, youth services employee, firefighter, or EMT, except for the state or political subdivision in which the peace officer, parole officer, assistant prosecuting attorney, correctional employee, youth services employee, firefighter, or EMT resides;

(b) Information compiled from referral to or participation in an employee assistance program;

(c) The social security number, the residential telephone number, any bank account, debit card, charge card, or credit card number, or the emergency telephone number of, or any medical information pertaining to, a peace officer, parole officer, prosecuting attorney, assistant prosecuting attorney, correctional employee, youth services employee, firefighter, or EMT;

(d) The name of any beneficiary of employment benefits, including, but not limited to, life insurance benefits, provided to a peace officer, parole officer, prosecuting attorney, assistant prosecuting attorney, correctional employee, youth services employee, firefighter, or EMT by the peace officer’s, parole officer’s, prosecuting attorney’s, assistant prosecuting attorney’s, correctional employee’s, youth services employee’s, firefighter’s, or EMT’s employer;

(e) The identity and amount of any charitable or employment benefit deduction made by the peace officer’s, parole officer’s, prosecuting attorney’s, assistant prosecuting attorney’s, correctional employee’s, youth services employee’s, firefighter’s, or EMT’s employer from the peace officer’s, parole officer’s, prosecuting attorney’s, assistant prosecuting attorney’s, correctional employee’s, youth services employee’s, firefighter’s, or EMT’s compensation unless the amount of the deduction is required by state or federal law;

(f) The name, the residential address, the name of the employer, the address of the employer, the social security number, the residential telephone number, any bank account, debit card, charge card, or credit card number, or the emergency telephone number of the spouse, a former spouse, or any child of a peace officer, parole officer, prosecuting attorney, assistant prosecuting attorney, correctional employee, youth services employee, firefighter, or EMT;

(g) A photograph of a peace officer who holds a position or has an assignment that may include undercover or plain clothes positions or assignments as determined by the peace officer’s appointing authority.

As used in divisions (A)(7) and (B)(9) of this section, “peace officer” has the same meaning as in section 109.71 of the Revised Code and also includes the superintendent and troopers of the state highway patrol; it does not include the sheriff of a county or a supervisory employee who,

Appendix A-22 Ohio Attorney General Marc Dann • Auditor of State Mary Taylor, CPA Ohio Sunshine Laws 2008: An Open Government Resource Manual in the absence of the sheriff, is authorized to stand in for, exercise the authority of, and perform the duties of the sheriff.

As used in divisions (A)(7) and (B)(5) of this section, “correctional employee” means any employee of the department of rehabilitation and correction who in the course of performing the employee’s job duties has or has had contact with inmates and persons under supervision.

As used in divisions (A)(7) and (B)(5) of this section, “youth services employee” means any employee of the department of youth services who in the course of performing the employee’s job duties has or has had contact with children committed to the custody of the department of youth services.

As used in divisions (A)(7) and (B)(9) of this section, “firefighter” means any regular, paid or volunteer, member of a lawfully constituted fire department of a municipal corporation, township, fire district, or village.

As used in divisions (A)(7) and (B)(9) of this section, “EMT” means EMTs-basic, EMTs-I, and paramedics that provide emergency medical services for a public emergency medical service organization. “Emergency medical service organization,” “EMT-basic,” “EMT-I,” and “paramedic” have the same meanings as in section 4765.01 of the Revised Code.

(8) “Information pertaining to the recreational activities of a person under the age of eighteen” means information that is kept in the ordinary course of business by a public office, that pertains to the recreational activities of a person under the age of eighteen years, and that discloses any of the following:

(a) The address or telephone number of a person under the age of eighteen or the address or telephone number of that person’s parent, guardian, custodian, or emergency contact person;

(b) The social security number, birth date, or photographic image of a person under the age of eighteen;

(c) Any medical record, history, or information pertaining to a person under the age of eighteen;

(d) Any additional information sought or required about a person under the age of eighteen for the purpose of allowing that person to participate in any recreational activity conducted or sponsored by a public office or to use or obtain admission privileges to any recreational facility owned or operated by a public office.

(9) “Community control sanction” has the same meaning as in section 2929.01 of the Revised Code.

(10) “Post-release control sanction” has the same meaning as in section 2967.01 of the Revised Code.

Ohio Attorney General Marc Dann • Auditor of State Mary Taylor, CPA Appendix A-23 Ohio Sunshine Laws 2008: An Open Government Resource Manual (11) “Redaction” means obscuring or deleting any information that is exempt from the duty to permit public inspection or copying from an item that otherwise meets the definition of a “record” in section 149.011 of the Revised Code.

(12) “Designee” and “elected official” have the same meanings as in section 109.43 of the Revised Code.

(B)(1) Upon request and subject to division (B)(8) of this section, all public records responsive to the request shall be promptly prepared and made available for inspection to any person at all reasonable times during regular business hours. Subject to division (B)(8) of this section, upon request, a public office or person responsible for public records shall make copies of the requested public record available at cost and within a reasonable period of time. If a public record contains information that is exempt from the duty to permit public inspection or to copy the public record, the public office or the person responsible for the public record shall make available all of the information within the public record that is not exempt. When making that public record available for public inspection or copying that public record, the public office or the person responsible for the public record shall notify the requester of any redaction or make the redaction plainly visible. A redaction shall be deemed a denial of a request to inspect or copy the redacted information, except if federal or state law authorizes or requires a public office to make the redaction.

(2) To facilitate broader access to public records, a public office or the person responsible for public records shall organize and maintain public records in a manner that they can be made available for inspection or copying in accordance with division (B) of this section. A public office also shall have available a copy of its current records retention schedule at a location readily available to the public. If a requester makes an ambiguous or overly broad request or has difficulty in making a request for copies or inspection of public records under this section such that the public office or the person responsible for the requested public record cannot reasonably identify what public records are being requested, the public office or the person responsible for the requested public record may deny the request but shall provide the requester with an opportunity to revise the request by informing the requester of the manner in which records are maintained by the public office and accessed in the ordinary course of the public office’s or person’s duties.

(3) If a request is ultimately denied, in part or in whole, the public office or the person responsible for the requested public record shall provide the requester with an explanation, including legal authority, setting forth why the request was denied. If the initial request was provided in writing, the explanation also shall be provided to the requester in writing. The explanation shall not preclude the public office or the person responsible for the requested public record from relying upon additional reasons or legal authority in defending an action commenced under division (C) of this section.

(4) Unless specifically required or authorized by state or federal law or in accordance with division (B) of this section, no public office or person responsible for public records may limit or condition the availability of public records by requiring disclosure of the requester’s identity or the intended use of the requested public record. Any requirement that the requester disclose

Appendix A-24 Ohio Attorney General Marc Dann • Auditor of State Mary Taylor, CPA Ohio Sunshine Laws 2008: An Open Government Resource Manual the requestor’s identity or the intended use of the requested public record constitutes a denial of the request.

(5) A public office or person responsible for public records may ask a requester to make the request in writing, may ask for the requester’s identity, and may inquire about the intended use of the information requested, but may do so only after disclosing to the requester that a written request is not mandatory and that the requester may decline to reveal the requester’s identity or the intended use and when a written request or disclosure of the identity or intended use would benefit the requester by enhancing the ability of the public office or person responsible for public records to identify, locate, or deliver the public records sought by the requester.

(6) If any person chooses to obtain a copy of a public record in accordance with division (B) of this section, the public office or person responsible for the public record may require that person to pay in advance the cost involved in providing the copy of the public record in accordance with the choice made by the person seeking the copy under this division. The public office or the person responsible for the public record shall permit that person to choose to have the public record duplicated upon paper, upon the same medium upon which the public office or person responsible for the public record keeps it, or upon any other medium upon which the public office or person responsible for the public record determines that it reasonably can be duplicated as an integral part of the normal operations of the public office or person responsible for the public record. When the person seeking the copy makes a choice under this division, the public office or person responsible for the public record shall provide a copy of it in accordance with the choice made by the person seeking the copy. Nothing in this section requires a public office or person responsible for the public record to allow the person seeking a copy of the public record to make the copies of the public record.

(7) Upon a request made in accordance with division (B) of this section and subject to division (B)(6) of this section, a public office or person responsible for public records shall transmit a copy of a public record to any person by United States mail or by any other means of delivery or transmission within a reasonable period of time after receiving the request for the copy. The public office or person responsible for the public record may require the person making the request to pay in advance the cost of postage if the copy is transmitted by United States mail or the cost of delivery if the copy is transmitted other than by United States mail, and to pay in advance the costs incurred for other supplies used in the mailing, delivery, or transmission.

Any public office may adopt a policy and procedures that it will follow in transmitting, within a reasonable period of time after receiving a request, copies of public records by United States mail or by any other means of delivery or transmission pursuant to this division. A public office that adopts a policy and procedures under this division shall comply with them in performing its duties under this division.

In any policy and procedures adopted under this division, a public office may limit the number of records requested by a person that the office will transmit by United States mail to ten per month, unless the person certifies to the office in writing that the person does not intend to use or forward the requested records, or the information contained in them, for commercial purposes. For purposes of this division, “commercial” shall be narrowly construed and does not

Ohio Attorney General Marc Dann • Auditor of State Mary Taylor, CPA Appendix A-25 Ohio Sunshine Laws 2008: An Open Government Resource Manual include reporting or gathering news, reporting or gathering information to assist citizen oversight or understanding of the operation or activities of government, or nonprofit educational research.

(8) A public office or person responsible for public records is not required to permit a person who is incarcerated pursuant to a criminal conviction or a juvenile adjudication to inspect or to obtain a copy of any public record concerning a criminal investigation or prosecution or concerning what would be a criminal investigation or prosecution if the subject of the investigation or prosecution were an adult, unless the request to inspect or to obtain a copy of the record is for the purpose of acquiring information that is subject to release as a public record under this section and the judge who imposed the sentence or made the adjudication with respect to the person, or the judge’s successor in office, finds that the information sought in the public record is necessary to support what appears to be a justiciable claim of the person.

(9) Upon written request made and signed by a journalist on or after December 16, 1999, a public office, or person responsible for public records, having custody of the records of the agency employing a specified peace officer, parole officer, prosecuting attorney, assistant prosecuting attorney, correctional employee, youth services employee, firefighter, or EMT shall disclose to the journalist the address of the actual personal residence of the peace officer, parole officer, prosecuting attorney, assistant prosecuting attorney, correctional employee, youth services employee, firefighter, or EMT and, if the peace officer’s, parole officer’s, prosecuting attorney’s, assistant prosecuting attorney’s, correctional employee’s, youth services employee’s, firefighter’s, or EMT’s spouse, former spouse, or child is employed by a public office, the name and address of the employer of the peace officer’s, parole officer’s, prosecuting attorney’s, assistant prosecuting attorney’s, correctional employee’s, youth services employee’s, firefighter’s, or EMT’s spouse, former spouse, or child. The request shall include the journalist’s name and title and the name and address of the journalist’s employer and shall state that disclosure of the information sought would be in the public interest.

As used in this division, “journalist” means a person engaged in, connected with, or employed by any news medium, including a newspaper, magazine, press association, news agency, or wire service, a radio or television station, or a similar medium, for the purpose of gathering, processing, transmitting, compiling, editing, or disseminating information for the general public.

(C)(1) If a person allegedly is aggrieved by the failure of a public office or the person responsible for public records to promptly prepare a public record and to make it available to the person for inspection in accordance with division (B) of this section or by any other failure of a public office or the person responsible for public records to comply with an obligation in accordance with division (B) of this section, the person allegedly aggrieved may commence a mandamus action to obtain a judgment that orders the public office or the person responsible for the public record to comply with division (B) of this section , that awards court costs and reasonable attorney’s fees to the person that instituted the mandamus action, and, if applicable, that includes an order fixing statutory damages under division (C)(1) of this section. The mandamus action may be commenced in the court of common pleas of the county in which division (B) of this section allegedly was not complied with, in the supreme court pursuant to its original jurisdiction under Section 2 of Article IV, Ohio Constitution, or in the court of appeals

Appendix A-26 Ohio Attorney General Marc Dann • Auditor of State Mary Taylor, CPA Ohio Sunshine Laws 2008: An Open Government Resource Manual for the appellate district in which division (B) of this section allegedly was not complied with pursuant to its original jurisdiction under Section 3 of Article IV, Ohio Constitution.

If a requestor transmits a written request by hand delivery or certified mail to inspect or receive copies of any public record in a manner that fairly describes the public record or class of public records to the public office or person responsible for the requested public records, except as otherwise provided in this section, the requestor shall be entitled to recover the amount of statutory damages set forth in this division if a court determines that the public office or the person responsible for public records failed to comply with an obligation in accordance with division (B) of this section.

The amount of statutory damages shall be fixed at one hundred dollars for each business day during which the public office or person responsible for the requested public records failed to comply with an obligation in accordance with division (B) of this section, beginning with the day on which the requester files a mandamus action to recover statutory damages, up to a maximum of one thousand dollars. The award of statutory damages shall not be construed as a penalty, but as compensation for injury arising from lost use of the requested information. The existence of this injury shall be conclusively presumed. The award of statutory damages shall be in addition to all other remedies authorized by this section.

The court may reduce an award of statutory damages or not award statutory damages if the court determines both of the following:

(a) That, based on the ordinary application of statutory law and case law as it existed at the time of the conduct or threatened conduct of the public office or person responsible for the requested public records that allegedly constitutes a failure to comply with an obligation in accordance with division (B) of this section and that was the basis of the mandamus action, a well-informed public office or person responsible for the requested public records reasonably would believe that the conduct or threatened conduct of the public office or person responsible for the requested public records did not constitute a failure to comply with an obligation in accordance with division (B) of this section;

(b) That a well-informed public office or person responsible for the requested public records reasonably would believe that the conduct or threatened conduct of the public office or person responsible for the requested public records would serve the public policy that underlies the authority that is asserted as permitting that conduct or threatened conduct.

(2)(a) If the court issues a writ of mandamus that orders the public office or the person responsible for the public record to comply with division (B) of this section and determines that the circumstances described in division (C)(1) of this section exist, the court shall determine and award to the relator all court costs.

(b) If the court renders a judgment that orders the public office or the person responsible for the public record to comply with division (B) of this section, the court may award reasonable attorney’s fees subject to reduction as described in division (C)(2)(c) of this section. The court

Ohio Attorney General Marc Dann • Auditor of State Mary Taylor, CPA Appendix A-27 Ohio Sunshine Laws 2008: An Open Government Resource Manual shall award reasonable attorney’s fees, subject to reduction as described in division (C)(2)(c) of this section when either of the following applies:

(i) The public office or the person responsible for the public records failed to respond affirmatively or negatively to the public records request in accordance with the time allowed under division (B) of this section.

(ii) The public office or the person responsible for the public records promised to permit the relator to inspect or receive copies of the public records requested within a specified period of time but failed to fulfill that promise within that specified period of time.

(c) Court costs and reasonable attorney’s fees awarded under this section shall be construed as remedial and not punitive. Reasonable attorney’s fees shall include reasonable fees incurred to produce proof of the reasonableness and amount of the fees and to otherwise litigate entitlement to the fees. The court may reduce an award of attorney’s fees to the relator or not award attorney’s fees to the relator if the court determines both of the following:

(i) That, based on the ordinary application of statutory law and case law as it existed at the time of the conduct or threatened conduct of the public office or person responsible for the requested public records that allegedly constitutes a failure to comply with an obligation in accordance with division (B) of this section and that was the basis of the mandamus action, a well-informed public office or person responsible for the requested public records reasonably would believe that the conduct or threatened conduct of the public office or person responsible for the requested public records did not constitute a failure to comply with an obligation in accordance with division (B) of this section;

(ii) That a well-informed public office or person responsible for the requested public records reasonably would believe that the conduct or threatened conduct of the public office or person responsible for the requested public records as described in division (C)(2)(c)(i) of this section would serve the public policy that underlies the authority that is asserted as permitting that conduct or threatened conduct.

(D) Chapter 1347 of the Revised Code does not limit the provisions of this section.

(E)(1) To ensure that all employees of public offices are appropriately educated about a public office’s obligations under division (B) of this section, all elected officials or their appropriate designees shall attend training approved by the attorney general as provided in section 109.43 of the Revised Code. In addition, all public offices shall adopt a public records policy in compliance with this section for responding to public records requests. In adopting a public records policy under this division, a public office may obtain guidance from the model public records policy developed and provided to the public office by the attorney general under section 109.43 of the Revised Code. Except as otherwise provided in this section, the policy may not limit the number of public records that the public office will make available to a single person, may not limit the number of public records that it will make available during a fixed period of time, and may not establish a fixed period of time before it will respond to a request for inspection or copying of public records, unless that period is less than eight hours.

Appendix A-28 Ohio Attorney General Marc Dann • Auditor of State Mary Taylor, CPA Ohio Sunshine Laws 2008: An Open Government Resource Manual (2) The public office shall distribute the public records policy adopted by the public office under division (E)(1) of this section to the employee of the public office who is the records custodian or records manager or otherwise has custody of the records of that office. The public office shall require that employee to acknowledge receipt of the copy of the public records policy. The public office shall create a poster that describes its public records policy and shall post the poster in a conspicuous place in the public office and in all locations where the public office has branch offices. The public office may post its public records policy on the internet web site of the public office if the public office maintains an internet web site. A public office that has established a manual or handbook of its general policies and procedures for all employees of the public office shall include the public records policy of the public office in the manual or handbook.

(F)(1) The bureau of motor vehicles may adopt rules pursuant to Chapter 119. of the Revised Code to reasonably limit the number of bulk commercial special extraction requests made by a person for the same records or for updated records during a calendar year. The rules may include provisions for charges to be made for bulk commercial special extraction requests for the actual cost of the bureau, plus special extraction costs, plus ten per cent. The bureau may charge for expenses for redacting information, the release of which is prohibited by law.

(2) As used in division (F)(1) of this section:

(a) “Actual cost” means the cost of depleted supplies, records storage media costs, actual mailing and alternative delivery costs, or other transmitting costs, and any direct equipment operating and maintenance costs, including actual costs paid to private contractors for copying services.

(b) “Bulk commercial special extraction request” means a request for copies of a record for information in a format other than the format already available, or information that cannot be extracted without examination of all items in a records series, class of records, or data base by a person who intends to use or forward the copies for surveys, marketing, solicitation, or resale for commercial purposes. “Bulk commercial special extraction request” does not include a request by a person who gives assurance to the bureau that the person making the request does not intend to use or forward the requested copies for surveys, marketing, solicitation, or resale for commercial purposes.

(c) “Commercial” means profit-seeking production, buying, or selling of any good, service, or other product.

(d) “Special extraction costs” means the cost of the time spent by the lowest paid employee competent to perform the task, the actual amount paid to outside private contractors employed by the bureau, or the actual cost incurred to create computer programs to make the special extraction. “Special extraction costs” include any charges paid to a public agency for computer or records services.

Ohio Attorney General Marc Dann • Auditor of State Mary Taylor, CPA Appendix A-29 Ohio Sunshine Laws 2008: An Open Government Resource Manual (3) For purposes of divisions (F)(1) and (2) of this section, ” surveys, marketing, solicitation, or resale for commercial purposes” shall be narrowly construed and does not include reporting or gathering news, reporting or gathering information to assist citizen oversight or understanding of the operation or activities of government, or nonprofit educational research.

Effective Date: 02-12-2004; 04-27-2005; 07-01-2005; 10-29-2005; 03-30-2007; 2006 HB9 09-29-2007

______§ 149.431. Records of governmental or nonprofit organizations receiving governmental funds.

(A) Any governmental entity or agency and any nonprofit corporation or association, except a corporation organized pursuant to Chapter 1719. of the Revised Code prior to January 1, 1980 or organized pursuant to Chapter 3941. of the Revised Code, that enters into a contract or other agreement with the federal government, a unit of state government, or a political subdivision or taxing unit of this state for the provision of services shall keep accurate and complete financial records of any moneys expended in relation to the performance of the services pursuant to such contract or agreement according to generally accepted accounting principles. Such contract or agreement and such financial records shall be deemed to be public records as defined in division (A)(1) of section 149.43 of the Revised Code and are subject to the requirements of division (B) of that section, except that:

(1) Any information directly or indirectly identifying a present or former individual patient or client or his diagnosis, prognosis, or medical treatment, treatment for a mental or emotional disorder, treatment for mental retardation or a developmental disability, treatment for drug abuse or alcoholism, or counseling for personal or social problems is not a public record;

(2) If disclosure of the contract or agreement or financial records is requested at a time when confidential professional services are being provided to a patient or client whose confidentiality might be violated if disclosure were made at that time, disclosure may be deferred if reasonable times are established when the contract or agreement or financial records will be disclosed.

(3) Any nonprofit corporation or association that receives both public and private funds in fulfillment of any such contract or other agreement is not required to keep as public records the financial records of any private funds expended in relation to the performance of services pursuant to the contract or agreement.

(B) Any nonprofit corporation or association that receives more than fifty per cent of its gross receipts excluding moneys received pursuant to Title XVIII of the “Social Security Act,” 49 Stat. 620 (1935), 42 U.S.C. 301, as amended, in a calendar year in fulfillment of a contract or other agreement for services with a governmental entity shall maintain information setting forth the compensation of any individual serving the nonprofit corporation or association in an

Appendix A-30 Ohio Attorney General Marc Dann • Auditor of State Mary Taylor, CPA Ohio Sunshine Laws 2008: An Open Government Resource Manual executive or administrative capacity. Such information shall be deemed to be public records as defined in division (A)(1) of section 149.43 of the Revised Code and is subject to the requirements of division (B) of that section.

Nothing in this section shall be construed to otherwise limit the provisions of section 149.43 of the Revised Code.

Effective Date: 07-01-1991

______

§ 149.432. Releasing library record or patron information.

(A) As used in this section:

(1) “Library” means a library that is open to the public, including any of the following:

(a) A library that is maintained and regulated under section 715.13 of the Revised Code;

(b) A library that is created, maintained, and regulated under Chapter 3375. of the Revised Code;

(c) A library that is created and maintained by a public or private school, college, university, or other educational institution;

(d) A library that is created and maintained by a historical or charitable organization, institution, association, or society.

“Library” includes the members of the governing body and the employees of a library.

(2) “Library record” means a record in any form that is maintained by a library and that contains any of the following types of information:

(a) Information that the library requires an individual to provide in order to be eligible to use library services or borrow materials;

(b) Information that identifies an individual as having requested or obtained specific materials or materials on a particular subject;

(c) Information that is provided by an individual to assist a library staff member to answer a specific question or provide information on a particular subject.

“Library record” does not include information that does not identify any individual and that is retained for the purpose of studying or evaluating the use of a library and its materials and services.

Ohio Attorney General Marc Dann • Auditor of State Mary Taylor, CPA Appendix A-31 Ohio Sunshine Laws 2008: An Open Government Resource Manual (3) Subject to division (B)(5) of this section, “patron information” means personally identifiable information about an individual who has used any library service or borrowed any library materials.

(B) A library shall not release any library record or disclose any patron information except in the following situations:

(1) If a library record or patron information pertaining to a minor child is requested from a library by the minor child’s parent, guardian, or custodian, the library shall make that record or information available to the parent, guardian, or custodian in accordance with division (B) of section 149.43 of the Revised Code.

(2) Library records or patron information shall be released in the following situations:

(a) In accordance with a subpoena, search warrant, or other court order;

(b) To a law enforcement officer who is acting in the scope of the officer’s law enforcement duties and who is investigating a matter involving public safety in exigent circumstances.

(3) A library record or patron information shall be released upon the request or with the consent of the individual who is the subject of the record or information.

(4) Library records may be released for administrative library purposes, including establishment or maintenance of a system to manage the library records or to assist in the transfer of library records from one records management system to another, compilation of statistical data on library use, and collection of fines and penalties.

(5) A library may release under division (B) of section 149.43 of the Revised Code records that document improper use of the internet at the library so long as any patron information is removed from those records. As used in division (B)(5) of this section, “patron information” does not include information about the age or gender of an individual.

Effective Date: 10-05-2000; 11-05-2004

______§ 149.433. Exemption of security and infrastructure records.

(A) As used in this section:

(1) “Act of terrorism” has the same meaning as in section 2909.21 of the Revised Code.

(2) “Infrastructure record” means any record that discloses the configuration of a public office’s or chartered nonpublic school’s critical systems including, but not limited to, communication, computer, electrical, mechanical, ventilation, water, and plumbing systems, security codes, or the infrastructure or structural configuration of the building in which a public office or chartered nonpublic school is located. “Infrastructure record” does not mean a simple floor plan that

Appendix A-32 Ohio Attorney General Marc Dann • Auditor of State Mary Taylor, CPA Ohio Sunshine Laws 2008: An Open Government Resource Manual discloses only the spatial relationship of components of a public office or chartered nonpublic school or the building in which a public office or chartered nonpublic school is located.

(3) “Security record” means any of the following:

(a) Any record that contains information directly used for protecting or maintaining the security of a public office against attack, interference, or sabotage;

(b) Any record assembled, prepared, or maintained by a public office or public body to prevent, mitigate, or respond to acts of terrorism, including any of the following:

(i) Those portions of records containing specific and unique vulnerability assessments or specific and unique response plans either of which is intended to prevent or mitigate acts of terrorism, and communication codes or deployment plans of law enforcement or emergency response personnel;

(ii) Specific intelligence information and specific investigative records shared by federal and international law enforcement agencies with state and local law enforcement and public safety agencies;

(iii) National security records classified under federal executive order and not subject to public disclosure under federal law that are shared by federal agencies, and other records related to national security briefings to assist state and local government with domestic preparedness for acts of terrorism.

(c) A school safety plan adopted pursuant to section 3313.536 of the Revised Code.

(B) A record kept by a public office that is a security record or an infrastructure record is not a public record under section 149.43 of the Revised Code and is not subject to mandatory release or disclosure under that section.

(C) Notwithstanding any other section of the Revised Code, disclosure by a public office, public employee, chartered nonpublic school, or chartered nonpublic school employee of a security record or infrastructure record that is necessary for construction, renovation, or remodeling work on any public building or project or chartered nonpublic school does not constitute public disclosure for purposes of waiving division (B) of this section and does not result in that record becoming a public record for purposes of section 149.43 of the Revised Code.

Effective Date: 05-15-2002; 09-28-2006

______§ 149.44. Availability of records in centers and archival Institutions.

Any state records center or archival institution established pursuant to sections 149.31 and 149.331 of the Revised Code is an extension of the departments, offices, and institutions of the state and all state and local records transferred to records centers and archival institutions shall

Ohio Attorney General Marc Dann • Auditor of State Mary Taylor, CPA Appendix A-33 Ohio Sunshine Laws 2008: An Open Government Resource Manual be available for use under section 149.43 of the Revised Code. The state records administration, assisted by the state archivist, shall establish rules and procedures for the operation of state records centers and archival institutions holding public records, respectively.

Effective Date: 07-01-1985

 Personal Information Systems Act (The Ohio “Privacy Act”)

§1347.01 Personal information systems definitions.

As used in this chapter, except as otherwise provided:

(A) “State agency” means the office of any elected state officer and any agency, board, commission, department, division, or educational institution of the state.

(B) “Local agency” means any municipal corporation, school district, special purpose district, or township of the state or any elected officer or board, bureau, commission, department, division, institution, or instrumentality of a county.

(C) “Special purpose district” means any geographic or political jurisdiction that is created by statute to perform a limited and specific function, and includes, but is not limited to, library districts, conservancy districts, metropolitan housing authorities, park districts, port authorities, regional airport authorities, regional transit authorities, regional water and sewer districts, sanitary districts, soil and water conservation districts, and regional planning agencies.

(D) “Maintains” means state or local agency ownership of, control over, responsibility for, or accountability for systems and includes, but is not limited to, state or local agency depositing of information with a data processing center for storage, processing, or dissemination. An agency “maintains” all systems of records that are required by law to be kept by the agency.

(E) “Personal information” means any information that describes anything about a person, or that indicates actions done by or to a person, or that indicates that a person possesses certain personal characteristics, and that contains, and can be retrieved from a system by, a name, identifying number, symbol, or other identifier assigned to a person.

(F) “System” means any collection or group of related records that are kept in an organized manner and that are maintained by a state or local agency, and from which personal information is retrieved by the name of the person or by some identifying number, symbol, or other identifier assigned to the person. “System” includes both records that are manually stored and records that are stored using electronic data processing equipment. “System” does not include collected archival records in the custody of or administered under the authority of the Ohio historical society, published directories, reference materials or newsletters, or routine information that is

Appendix A-34 Ohio Attorney General Marc Dann • Auditor of State Mary Taylor, CPA Ohio Sunshine Laws 2008: An Open Government Resource Manual maintained for the purpose of internal office administration, the use of which would not adversely affect a person.

(G) “Interconnection of systems” means a linking of systems that belong to more than one agency, or to an agency and other organizations, which linking of systems results in a system that permits each agency or organization involved in the linking to have unrestricted access to the systems of the other agencies and organizations.

(H) “Combination of systems” means a unification of systems that belong to more than one agency, or to an agency and another organization, into a single system in which the records that belong to each agency or organization may or may not be obtainable by the others.

Effective Date: 01-23-1981; 02-17-2006

______§1347.04 Exemptions from chapter.

(A)(1) Except as provided in division (A)(2) of this section or division (C)(2) of section 1347.08 of the Revised Code, the following are exempt from the provisions of this chapter:

(a) Any state or local agency, or part of a state or local agency, that performs as its principal function any activity relating to the enforcement of the criminal laws, including police efforts to prevent, control, or reduce crime or to apprehend criminals;

(b) The criminal courts;

(c) Prosecutors;

(d) Any state or local agency or part of any state or local agency that is a correction, probation, pardon, or parole authority;

(e) Personal information systems that are comprised of investigatory material compiled for law enforcement purposes by agencies that are not described in divisions (A)(1)(a) and (d) of this section.

(2) A part of a state or local agency that does not perform, as its principal function, an activity relating to the enforcement of the criminal laws is not exempt under this section.

(B) The provisions of this chapter shall not be construed to prohibit the release of public records, or the disclosure of personal information in public records, as defined in section 149.43 of the Revised Code, or to authorize a public body to hold an executive session for the discussion of personal information if the executive session is not authorized under division (G) of section 121.22 of the Revised Code.

Ohio Attorney General Marc Dann • Auditor of State Mary Taylor, CPA Appendix A-35 Ohio Sunshine Laws 2008: An Open Government Resource Manual The disclosure to members of the general public of personal information contained in a public record, as defined in section 149.43 of the Revised Code, is not an improper use of personal information under this chapter.

(C) The provisions of this chapter shall not be construed to prohibit, and do not prohibit, compliance with any order issued pursuant to division (D)(1) of section 2151.14 of the Revised Code, any request for records that is properly made pursuant to division (D)(3)(a) of section 2151.14 or division (A) of section 2151.141 of the Revised Code, or any determination that is made by a court pursuant to division (D)(3)(b) of section 2151.14 or division (B)(1) of section 2151.141 of the Revised Code.

Effective Date: 10-25-1995

______§1347.05 Duties of state and local agencies maintaining personal information systems.

Every state or local agency that maintains a personal information system shall:

(A) Appoint one individual to be directly responsible for the system;

(B) Adopt and implement rules that provide for the operation of the system in accordance with the provisions of this chapter that, in the case of state agencies, apply to state agencies or, in the case of local agencies, apply to local agencies;

(C) Inform each of its employees who has any responsibility for the operation or maintenance of the system, or for the use of personal information maintained in the system, of the applicable provisions of this chapter and of all rules adopted in accordance with this section;

(D) Specify disciplinary measures to be applied to any employee who initiates or otherwise contributes to any disciplinary or other punitive action against any individual who brings to the attention of appropriate authorities, the press, or any member of the public, evidence of unauthorized use of information contained in the system;

(E) Inform a person who is asked to supply personal information for a system whether the person is legally required to, or may refuse to, supply the information;

(F) Develop procedures for purposes of monitoring the accuracy, relevance, timeliness, and completeness of the personal information in this system, and, in accordance with the procedures, maintain the personal information in the system with the accuracy, relevance, timeliness, and completeness that is necessary to assure fairness in any determination made with respect to a person on the basis of the information;

(G) Take reasonable precautions to protect personal information in the system from unauthorized modification, destruction, use, or disclosure;

Appendix A-36 Ohio Attorney General Marc Dann • Auditor of State Mary Taylor, CPA Ohio Sunshine Laws 2008: An Open Government Resource Manual (H) Collect, maintain, and use only personal information that is necessary and relevant to the functions that the agency is required or authorized to perform by statute, ordinance, code, or rule, and eliminate personal information from the system when it is no longer necessary and relevant to those functions.

Effective Date: 01-23-1981

______§1347.06 Administrative rules.

The director of administrative services shall adopt, amend, and rescind rules pursuant to Chapter 119. of the Revised Code for the purposes of administering and enforcing the provisions of this chapter that pertain to state agencies.

A state or local agency that, or an officer or employee of a state or local agency who, complies in good faith with a rule applicable to the agency is not subject to criminal prosecution or civil liability under this chapter.

Effective Date: 01-23-1981

______§1347.07 Using personal information.

A state or local agency shall only use the personal information in a personal information system in a manner that is consistent with the purposes of the system.

Effective Date: 01-23-1981

______§1347.071 Placing or using information in interconnected or combined systems.

(A) No state or local agency shall place personal information in an interconnected or combined system, or use personal information that is placed in an interconnected or combined system by another state or local agency or another organization, unless the interconnected or combined system will contribute to the efficiency of the involved agencies in implementing programs that are authorized by law.

(B) No state or local agency shall use personal information that is placed in an interconnected or combined system by another state or local agency or another organization, unless the personal information is necessary and relevant to the performance of a lawful function of the agency.

(C) When a state or local agency requests a person to supply personal information that will be placed in an interconnected or combined system, the agency shall provide the person with information relevant to the system, including the identity of the other agencies or organizations that have access to the information in the system.

Ohio Attorney General Marc Dann • Auditor of State Mary Taylor, CPA Appendix A-37 Ohio Sunshine Laws 2008: An Open Government Resource Manual Effective Date: 01-23-1981

______§1347.08 Rights of person who are subject of personal information.

(A) Every state or local agency that maintains a personal information system, upon the request and the proper identification of any person who is the subject of personal information in the system, shall:

(1) Inform the person of the existence of any personal information in the system of which the person is the subject;

(2) Except as provided in divisions (C) and (E)(2) of this section, permit the person, the person’s legal guardian, or an attorney who presents a signed written authorization made by the person, to inspect all personal information in the system of which the person is the subject;

(3) Inform the person about the types of uses made of the personal information, including the identity of any users usually granted access to the system.

(B) Any person who wishes to exercise a right provided by this section may be accompanied by another individual of the person’s choice.

(C)(1) A state or local agency, upon request, shall disclose medical, psychiatric, or psychological information to a person who is the subject of the information or to the person’s legal guardian, unless a physician, psychiatrist, or psychologist determines for the agency that the disclosure of the information is likely to have an adverse effect on the person, in which case the information shall be released to a physician, psychiatrist, or psychologist who is designated by the person or by the person’s legal guardian.

(2) Upon the signed written request of either a licensed attorney at law or a licensed physician designated by the inmate, together with the signed written request of an inmate of a correctional institution under the administration of the department of rehabilitation and correction, the department shall disclose medical information to the designated attorney or physician as provided in division (C) of section 5120.21 of the Revised Code.

(D) If an individual who is authorized to inspect personal information that is maintained in a personal information system requests the state or local agency that maintains the system to provide a copy of any personal information that the individual is authorized to inspect, the agency shall provide a copy of the personal information to the individual. Each state and local agency may establish reasonable fees for the service of copying, upon request, personal information that is maintained by the agency.

(E)(1) This section regulates access to personal information that is maintained in a personal information system by persons who are the subject of the information, but does not limit the authority of any person, including a person who is the subject of personal information

Appendix A-38 Ohio Attorney General Marc Dann • Auditor of State Mary Taylor, CPA Ohio Sunshine Laws 2008: An Open Government Resource Manual maintained in a personal information system, to inspect or have copied, pursuant to section 149.43 of the Revised Code, a public record as defined in that section.

(2) This section does not provide a person who is the subject of personal information maintained in a personal information system, the person’s legal guardian, or an attorney authorized by the person, with a right to inspect or have copied, or require an agency that maintains a personal information system to permit the inspection of or to copy, a confidential law enforcement investigatory record or trial preparation record, as defined in divisions (A)(2) and (4) of section 149.43 of the Revised Code.

(F) This section does not apply to any of the following:

(1) The contents of an adoption file maintained by the department of health under section 3705.12 of the Revised Code;

(2) Information contained in the putative father registry established by section 3107.062 of the Revised Code, regardless of whether the information is held by the department of job and family services or, pursuant to section 3111.69 of the Revised Code, the office of child support in the department or a child support enforcement agency;

(3) Papers, records, and books that pertain to an adoption and that are subject to inspection in accordance with section 3107.17 of the Revised Code;

(4) Records listed in division (A) of section 3107.42 of the Revised Code or specified in division (A) of section 3107.52 of the Revised Code;

(5) Records that identify an individual described in division (A)(1) of section 3721.031 of the Revised Code, or that would tend to identify such an individual;

(6) Files and records that have been expunged under division (D)(1) of section 3721.23 of the Revised Code;

(7) Records that identify an individual described in division (A)(1) of section 3721.25 of the Revised Code, or that would tend to identify such an individual;

(8) Records that identify an individual described in division (A)(1) of section 5111.61 of the Revised Code, or that would tend to identify such an individual;

(9) Test materials, examinations, or evaluation tools used in an examination for licensure as a nursing home administrator that the board of examiners of nursing home administrators administers under section 4751.04 of the Revised Code or contracts under that section with a private or government entity to administer;

(10) Information contained in a database established and maintained pursuant to section 5101.13 of the Revised Code.

Ohio Attorney General Marc Dann • Auditor of State Mary Taylor, CPA Appendix A-39 Ohio Sunshine Laws 2008: An Open Government Resource Manual Effective Date: 03-22-2001; 09-21-2006

______§1347.09 Disputing information.

(A)(1) If any person disputes the accuracy, relevance, timeliness, or completeness of personal information that pertains to him and that is maintained by any state or local agency in a personal information system, he may request the agency to investigate the current status of the information. The agency shall, within a reasonable time after, but not later than ninety days after, receiving the request from the disputant, make a reasonable investigation to determine whether the disputed information is accurate, relevant, timely, and complete, and shall notify the disputant of the results of the investigation and of the action that the agency plans to take with respect to the disputed information. The agency shall delete any information that it cannot verify or that it finds to be inaccurate.

(2) If after an agency’s determination, the disputant is not satisfied, the agency shall do either of the following:

(a) Permit the disputant to include within the system a brief statement of his position on the disputed information. The agency may limit the statement to not more than one hundred words if the agency assists the disputant to write a clear summary of the dispute.

(b) Permit the disputant to include within the system a notation that the disputant protests that the information is inaccurate, irrelevant, outdated, or incomplete. The agency shall maintain a copy of the disputant’s statement of the dispute. The agency may limit the statement to not more than one hundred words if the agency assists the disputant to write a clear summary of the dispute.

(3) The agency shall include the statement or notation in any subsequent transfer, report, or dissemination of the disputed information and may include with the statement or notation of the disputant a statement by the agency that it has reasonable grounds to believe that the dispute is frivolous or irrelevant, and of the reasons for its belief.

(B) The presence of contradictory information in the disputant’s file does not alone constitute reasonable grounds to believe that the dispute is frivolous or irrelevant.

(C) Following any deletion of information that is found to be inaccurate or the accuracy of which can no longer be verified, or if a statement of dispute was filed by the disputant, the agency shall, at the written request of the disputant, furnish notification that the information has been deleted, or furnish a copy of the disputant’s statement of the dispute, to any person specifically designated by the person. The agency shall clearly and conspicuously disclose to the disputant that he has the right to make such a request to the agency.

Effective Date: 01-23-1981

Appendix A-40 Ohio Attorney General Marc Dann • Auditor of State Mary Taylor, CPA Ohio Sunshine Laws 2008: An Open Government Resource Manual ______§1347.10 Wrongful disclosure.

(A) A person who is harmed by the use of personal information that relates to him and that is maintained in a personal information system may recover damages in civil action from any person who directly and proximately caused the harm by doing any of the following:

(1) Intentionally maintaining personal information that he knows, or has reason to know, is inaccurate, irrelevant, no longer timely, or incomplete and may result in such harm;

(2) Intentionally using or disclosing the personal information in a manner prohibited by law;

(3) Intentionally supplying personal information for storage in, or using or disclosing personal information maintained in, a personal information system, that he knows, or has reason to know, is false;

(4) Intentionally denying to the person the right to inspect and dispute the personal information at a time when inspection or correction might have prevented the harm.

An action under this division shall be brought within two years after the cause of action accrued or within six months after the wrongdoing is discovered, whichever is later; provided that no action shall be brought later than six years after the cause of action accrued. The cause of action accrues at the time that the wrongdoing occurs.

(B) Any person who, or any state or local agency that, violates or proposes to violate any provision of this chapter may be enjoined by any court of competent jurisdiction. The court may issue an order or enter a judgment that is necessary to ensure compliance with the applicable provisions of this chapter or to prevent the use of any practice that violates this chapter. An action for an injunction may be prosecuted by the person who is the subject of the violation, by the attorney general, or by any prosecuting attorney.

Effective Date: 01-23-1981

______§1347.12 Agency disclosure of security breach of computerized personal information data.

(A) As used in this section:

(1) “Agency of a political subdivision” means each organized body, office, or agency established by a political subdivision for the exercise of any function of the political subdivision, except that “agency of a political subdivision” does not include an agency that is a covered entity as defined in 45 C.F.R. 160.103, as amended.

(2)(a) “Breach of the security of the system” means unauthorized access to and acquisition of computerized data that compromises the security or confidentiality of personal information owned or licensed by a state agency or an agency of a political subdivision and that causes,

Ohio Attorney General Marc Dann • Auditor of State Mary Taylor, CPA Appendix A-41 Ohio Sunshine Laws 2008: An Open Government Resource Manual reasonably is believed to have caused, or reasonably is believed will cause a material risk of identity theft or other fraud to the person or property of a resident of this state.

(b) For purposes of division (A)(2)(a) of this section:

(i) Good faith acquisition of personal information by an employee or agent of the state agency or agency of the political subdivision for the purposes of the agency is not a breach of the security of the system, provided that the personal information is not used for an unlawful purpose or subject to further unauthorized disclosure.

(ii) Acquisition of personal information pursuant to a search warrant, subpoena, or other court order, or pursuant to a subpoena, order, or duty of a regulatory state agency, is not a breach of the security of the system.

(3) “Consumer reporting agency that compiles and maintains files on consumers on a nationwide basis” means a consumer reporting agency that regularly engages in the practice of assembling or evaluating, and maintaining, for the purpose of furnishing consumer reports to third parties bearing on a consumer’s creditworthiness, credit standing, or credit capacity, each of the following regarding consumers residing nationwide:

(a) Public record information;

(b) Credit account information from persons who furnish that information regularly and in the ordinary course of business.

(4) “Encryption” means the use of an algorithmic process to transform data into a form in which there is a low probability of assigning meaning without use of a confidential process or key.

(5) “Individual” means a natural person.

(6)(a) “Personal information” means, notwithstanding section 1347.01 of the Revised Code, an individual’s name, consisting of the individual’s first name or first initial and last name, in combination with and linked to any one or more of the following data elements, when the data elements are not encrypted, redacted, or altered by any method or technology in such a manner that the data elements are unreadable:

(i) Social security number;

(ii) Driver’s license number or state identification card number;

(iii) Account number or credit or debit card number, in combination with and linked to any required security code, access code, or password that would permit access to an individual’s financial account.

Appendix A-42 Ohio Attorney General Marc Dann • Auditor of State Mary Taylor, CPA Ohio Sunshine Laws 2008: An Open Government Resource Manual (b) “Personal information” does not include publicly available information that is lawfully made available to the general public from federal, state, or local government records or any of the following media that are widely distributed:

(i) Any news, editorial, or advertising statement published in any bona fide newspaper, journal, or magazine, or broadcast over radio or television;

(ii) Any gathering or furnishing of information or news by any bona fide reporter, correspondent, or news bureau to news media described in division (A)(6)(b)(i) of this section;

(iii) Any publication designed for and distributed to members of any bona fide association or charitable or fraternal nonprofit corporation;

(iv) Any type of media similar in nature to any item, entity, or activity identified in division (A)(6)(b)(i), (ii), or (iii) of this section.

(7) “Political subdivision” has the same meaning as in section 2744.01 of the Revised Code.

(8) “Record” means any information that is stored in an electronic medium and is retrievable in perceivable form. “Record” does not include any publicly available directory containing information an individual voluntarily has consented to have publicly disseminated or listed, such as name, address, or telephone number.

(9) “Redacted” means altered or truncated so that no more than the last four digits of a social security number, driver’s license number, state identification card number, account number, or credit or debit card number is accessible as part of the data.

(10) “State agency” has the same meaning as in section 1.60 of the Revised Code, except that “state agency” does not include an agency that is a covered entity as defined in 45 C.F.R. 160.103, as amended.

(11) “System” means, notwithstanding section 1347.01 of the Revised Code, any collection or group of related records that are kept in an organized manner, that are maintained by a state agency or an agency of a political subdivision, and from which personal information is retrieved by the name of the individual or by some identifying number, symbol, or other identifier assigned to the individual. “System” does not include any collected archival records in the custody of or administered under the authority of the Ohio historical society, any published directory, any reference material or newsletter, or any routine information that is maintained for the purpose of internal office administration of the agency, if the use of the directory, material, newsletter, or information would not adversely affect an individual and if there has been no unauthorized external breach of the directory, material, newsletter, or information.

(B)(1) Any state agency or agency of a political subdivision that owns or licenses computerized data that includes personal information shall disclose any breach of the security of the system, following its discovery or notification of the breach of the security of the system, to any resident of this state whose personal information was, or reasonably is believed to have been, accessed

Ohio Attorney General Marc Dann • Auditor of State Mary Taylor, CPA Appendix A-43 Ohio Sunshine Laws 2008: An Open Government Resource Manual and acquired by an unauthorized person if the access and acquisition by the unauthorized person causes or reasonably is believed will cause a material risk of identity theft or other fraud to the resident. The disclosure described in this division may be made pursuant to any provision of a contract entered into by the state agency or agency of a political subdivision with any person or another state agency or agency of a political subdivision prior to the date the breach of the security of the system occurred if that contract does not conflict with any provision of this section. For purposes of this section, a resident of this state is an individual whose principal mailing address as reflected in the records of the state agency or agency of a political subdivision is in this state.

(2) The state agency or agency of a political subdivision shall make the disclosure described in division (B)(1) of this section in the most expedient time possible but not later than forty-five days following its discovery or notification of the breach in the security of the system, subject to the legitimate needs of law enforcement activities described in division (D) of this section and consistent with any measures necessary to determine the scope of the breach, including which residents’ personal information was accessed and acquired, and to restore the reasonable integrity of the data system.

(C) Any state agency or agency of a political subdivision that, on behalf of or at the direction of another state agency or agency of a political subdivision, is the custodian of or stores computerized data that includes personal information shall notify that other state agency or agency of a political subdivision of any breach of the security of the system in an expeditious manner, if the personal information was, or reasonably is believed to have been, accessed and acquired by an unauthorized person and if the access and acquisition by the unauthorized person causes or reasonably is believed will cause a material risk of identity theft or other fraud to a resident of this state.

(D) The state agency or agency of a political subdivision may delay the disclosure or notification required by division (B), (C), or (F) of this section if a law enforcement agency determines that the disclosure or notification will impede a criminal investigation or jeopardize homeland or national security, in which case, the state agency or agency of a political subdivision shall make the disclosure or notification after the law enforcement agency determines that disclosure or notification will not compromise the investigation or jeopardize homeland or national security.

(E) For purposes of this section, a state agency or agency of a political subdivision may disclose or make a notification by any of the following methods:

(1) Written notice;

(2) Electronic notice, if the state agency’s or agency of a political subdivision’s primary method of communication with the resident to whom the disclosure must be made is by electronic means;

(3) Telephone notice;

Appendix A-44 Ohio Attorney General Marc Dann • Auditor of State Mary Taylor, CPA Ohio Sunshine Laws 2008: An Open Government Resource Manual (4) Substitute notice in accordance with this division, if the state agency or agency of a political subdivision required to disclose demonstrates that the agency does not have sufficient contact information to provide notice in a manner described in division (E)(1), (2), or (3) of this section, or that the cost of providing disclosure or notice to residents to whom disclosure or notification is required would exceed two hundred fifty thousand dollars, or that the affected class of subject residents to whom disclosure or notification is required exceeds five hundred thousand persons. Substitute notice under this division shall consist of all of the following:

(a) Electronic mail notice if the state agency or agency of a political subdivision has an electronic mail address for the resident to whom the disclosure must be made;

(b) Conspicuous posting of the disclosure or notice on the state agency’s or agency of a political subdivision’s web site, if the agency maintains one;

(c) Notification to major media outlets, to the extent that the cumulative total of the readership, viewing audience, or listening audience of all of the outlets so notified equals or exceeds seventy-five per cent of the population of this state.

(5) Substitute notice in accordance with this division, if the state agency or agency of a political subdivision required to disclose demonstrates that the agency has ten employees or fewer and that the cost of providing the disclosures or notices to residents to whom disclosure or notification is required will exceed ten thousand dollars. Substitute notice under this division shall consist of all of the following:

(a) Notification by a paid advertisement in a local newspaper that is distributed in the geographic area in which the state agency or agency of a political subdivision is located, which advertisement shall be of sufficient size that it covers at least one-quarter of a page in the newspaper and shall be published in the newspaper at least once a week for three consecutive weeks;

(b) Conspicuous posting of the disclosure or notice on the state agency’s or agency of a political subdivision’s web site, if the agency maintains one;

(c) Notification to major media outlets in the geographic area in which the state agency or agency of a political subdivision is located.

(F) If a state agency or agency of a political subdivision discovers circumstances that require disclosure under this section to more than one thousand residents of this state involved in a single occurrence of a breach of the security of the system, the state agency or agency of a political subdivision shall notify, without unreasonable delay, all consumer reporting agencies that compile and maintain files on consumers on a nationwide basis of the timing, distribution, and content of the disclosure given by the state agency or agency of a political subdivision to the residents of this state. In no case shall a state agency or agency of a political subdivision that is required to make a notification required by this division delay any disclosure or notification required by division (B) or (C) of this section in order to make the notification required by this division.

Ohio Attorney General Marc Dann • Auditor of State Mary Taylor, CPA Appendix A-45 Ohio Sunshine Laws 2008: An Open Government Resource Manual (G) The attorney general, pursuant to sections 1349.191 and 1349.192 of the Revised Code, may conduct an investigation and bring a civil action upon an alleged failure by a state agency or agency of a political subdivision to comply with the requirements of this section.

Effective date: 02-17-2006; 03-30-2007

______§1347.99 Penalty.

No public official, public employee, or other person who maintains, or is employed by a person who maintains, a personal information system for a state or local agency shall purposely refuse to comply with division (E), (F), (G), or (H) of section 1347.05, section 1347.071 , division (A), (B), or (C) of section 1347.08, or division (A) or (C) of section 1347.09 of the Revised Code. Whoever violates this section is guilty of a minor misdemeanor.

Effective Date: 01-23-1981

Appendix A-46 Ohio Attorney General Marc Dann • Auditor of State Mary Taylor, CPA Ohio Sunshine Laws 2008: An Open Government Resource Manual

Appendix B: “Catchall” Exceptions

Below is a compilation of Ohio statutory and administrative provisions that affect whether certain records may be released pursuant to a public records request. Although we believe the list to be exhaustive, we are aware that there maybe additional statutory provisions that do not appear on the list. If you are aware of such a provision, please contact either the Attorney General or Auditor of State so that we may update our lists.

911 database RC 4931.49(E), (F) & 4931.99(E)

Abortion – records, related to performing or inducing upon a minor RC 2919.121

Abortion – minor child’s application for judicial approval and appeal of same RC 2151.85(F) & RC 2505.073

Accountancy Board – records of investigative proceedings RC 4701.29

Acupuncturists, investigations RC 4762.14

Adoption – criminal records check of prospective adoptive parents OAC 5101:2-48-10

Adoption – form filed by biological parent to release information RC 3107.42

Adoption proceedings under records pertaining to RC 3107.45, RC 3107.52

Adoption records, identity of biological relatives can only be released to adult adopted child or biological parent or RC 3107.17(B)(1) & D, .40, .41 sibling

Adult care facilities - records not released unless resident consents OAC 3701-20-15(A)

Adult Protective Services – suspected abuse of adults report RC 5101.61(F)

Adult Protective Services -case records OAC 5101:2-20-04

Agriculture - handler's license applications RC 926.06(D)

Air Quality Development Authority, trade secrets obtained by RC 3706.20

Air Pollution Control, trade secrets and information obtained by RC 3704.08(A) & (B)

Alcohol and drug addiction program RC3793.12(C), RC3793.13 (A), RC3793.14 & RC379315(D) Alcohol and drug addiction programs, client records OAC 3793:2-1-06

Antitrust investigations - materials obtained through RC 1331.16(L) investigation

Ohio Attorney General Marc Dann • Auditor of State Mary Taylor, CPA Appendix B-1 Ohio Sunshine Laws 2008: An Open Government Resource Manual

Attorney trust accounts statements and reports RC 4705.10(B)

Attorney-client & physician-patient privileges RC 2317.02(A) & (B)

Auditor of State audit reports RC 117.14, 117.15 & 117.26

Banks - information obtained in examination of banks RC 1125.14(A)

Banks - upon request, superintendent of banks may grant confidentiality to certain records RC 1121.25(E)

BCI, information and materials furnished by RC109.57(D)

Birth records RC 3705.09(G), 3705.11, 3705.12(D) & 3705.15(D)(1)

Board of education, investigations by RC 3319.311(A)

Boards of education, rewards paid to informants RC 3313.173

Bureau of Motor Vehicles - only names of driver’s license applicants may be released RC 4501.34

Bureau of Motor Vehicles - license application to Registrar RC 4517.43

Bureau of Workers' Compensation - annual report information, coordinate confidentiality (recipients of RC 4123.27, RC 5101.181(A) public assistance)

Bureau of Workers' Compensation - claim files RC 4123.88

Bureau of Workers’ Compensation - applications for OAC 4123-6-information submitted to BWC in 4123-6 certification 03.2(H)

Bureau of Workers’ Compensation – managed care organization RC 4121.44(D)

Cancer registry – information furnished to, concerning malignant disease OAC 3701-4-03

Cemetery Dispute Resolution Commission- records of hearings or proceedings RC 4767.06(A)(7), OAC 1301:13-3-02(F)

Charitable trust, investigations of RC 109.28

Child placing agency - records maintained by private agency OAC 5101:2-5-13(A)(17) & (18)

Child support, financial institution account information OAC 5101:1-30-14

Children services agencies, child abuse and neglect investigations RC 2151.421(H), RC 5153.17, OAC 5101:2-34-38(A)

Children services agencies, employee residential addresses RC 2151.142

Citizen's reward program (Crime Stoppers) RC 9.92(D)

Appendix B-2 Ohio Attorney General Marc Dann • Auditor of State Mary Taylor, CPA Ohio Sunshine Laws 2008: An Open Government Resource Manual

Claims files, limitations on inspection, Industrial Commission OAC 4121-3-22

College savings program, identity of purchasers and beneficiaries RC 3334.11(J)

Community alternative homes, records of residents OAC 3701-16-14(A)(4)

Community Improvement Corporations, records submitted in connection with the relocation, location, expansion, ORC 1724.11(A)(1) & (2) improvement, or preservation of a business

Community Improvement Corporations, permissible closure of meeting to discuss confidential information ORC 1724.11(B)(1) (see, ORC 1724.11 (A)(1) and (2))

Competitive sealed proposal, purchases by RC 125.071

Consumer finance - report of small loans RC 1321.09

Consumer Sales Practices Act – Attorney General Investigations RC 1345.05(A)(7)

Coroner – medical and psychiatric records of a deceased person RC 313.091

Corporation franchise tax credit information RC 5733.42

Corrections - certain records maintained by the department of rehabilitation and corrections OAC 5120-9-49(B)

Corrections - certain information pertaining to correctional institutions RC 5120.21(D)

RC 1733.327(A) Credit unions and credit union guaranty corporations

Crime Stoppers RC 9.92(D)

RC 173.394, 3301.32(D), 3301.541(D), 3319.39(D), Criminal record checks, applicants for positions 3301.88, 3701.881(E), 3712.09, 3721.121, 5104.012(D), responsible for children and other vulnerable populations 5119.072, 5123.081, 5126.28 & 5153.111 (D)

Dangerous drugs, records limited to federal, state, county, and municipal officers RC 3719.13

Data that identifies individual pupils, State Board of Education, statewide education management information RC 3301.0714(I) system

Day-care centers –records check of owner, and administrator of licensee, and administrator of RC 5104.013(F)

Day-care centers - investigations of OAC 5101:2-12-20(G) & 5101:2-13-20(G)

Day-care centers - school child enrollment, health & attendance records RC 5104.011(C)(2), 5101:2-14-26(D)

Ohio Attorney General Marc Dann • Auditor of State Mary Taylor, CPA Appendix B-3 Ohio Sunshine Laws 2008: An Open Government Resource Manual

Day-care centers - complainant, identifying information RC 5101.29(B)

Day-care centers - children identifying information RC 5101.29(A)

Deferred compensation participants' account history; medical reports RC 145.27(A)(2)(a), (b) & (c), & (B)

DOD - loans, financial statements and financial data RC 122.17(G) &.171(G)

Division of Reclamation-Strip Mining, information provided to OAC 1501:13-1-10(C), 4-02(I)(2) & 16(J)(2)

Division of Oil and Gas - applicants may assert information submitted is confidential OAC 1501:9-7-07(G)(2)

Division of Securities - investigations RC 1707.12(B)

Drug and alcohol treatment participants records RC 4723.35(E)

Education records, public school students RC 3319.321

Emergency medical services recipient identifying information RC 4765.06 & 4765.10(C)

Emergency Medical Services, State Board of OAC 4765-2-06

Emergency medical technicians OAC 4765-9-01

Employee Assistance Program, Medical records of participants RC 3701.041(B)

Environmental Protection Agency - Information submitted to the EPA OAC 3745-3-07, 34-03, 50-30 & 77-03

Ethics Commission - documents related to complaint, inquiry or investigation RC 102.06

Ethics Commission - Financial disclosure statements RC 102.02(B)

Ethics Commission – investigations OAC 102-7-04(B)

Ethics Commission - judgment procedures OAC 102-7-03

Ethics Committee - joint legislative adjudication proceedings OAC 101-7-03

Ethics Committee - joint legislative investigations OAC 101-7-04(B)

Expunged or sealed records, release or dissemination is a RC 2953.35(A) fourth degree misdemeanor

Family and Children First Cabinet Council, case records OAC 3793:1-1-03(M)

Financial institutions statements and reports RC 3953.231(E)

Foster child records, disclosed only to parties directly OAC 5101:2-7-04(C) involved in child's care

Appendix B-4 Ohio Attorney General Marc Dann • Auditor of State Mary Taylor, CPA Ohio Sunshine Laws 2008: An Open Government Resource Manual

Foster home, inspections of homes & families, public children services agencies RC 5153.17

Geological surveys and mining analysis RC 1505.03, 1513.07(D) 1514.02(A)(8)

Grand jury proceedings Crim. R. 6(E)

Ohio Coal Development Office - trade secrets and other proprietary information RC 1551.11(B)

Health care facilities – Patient identifying information OAC 3701-83-06(D)

HIV testing or diagnosis, partner notification system & health care provider RC.3701-83-06(D) & 243(A) & (E)

Hospital board and peer review committees; information, data, reports or records utilized by a quality assurance RC 2305.24, 2305.25 & 2305.251 committee shall be kept confidential

HPRS - medical history, benefits, account history of system participants RC 5505.04

Identity Fraud Passport – application and supporting documentations RC 109.94(C)(1)

Industrial Technology Enterprise Advisory Board; materials and data RC 122.36

Information obtained by investigation of occupational therapists, physical therapists and athletic trainers board RC 4755.61(A)(7)

Inmates - Records of inmates in custody accessible only to department RC 5120.21(A), (B) & (C); RC 2317.02(B)

Interdepartmental cluster for children, RC 121.37(B)(3)

Investigatory records regarding monopolies RC 1331.16(M)

Juvenile court probation records RC 2151.14(B)

Juvenile court records on abused or delinquent children RC 2151.141(B)(2)(b) & 2151.313(C)(2)(c)

Juvenile records, expungement RC 2151.358

Lead, individual health records from lead inspectors and RC 3742.03(E)(3) analytical laboratories LEADS - access limited to operators with assigned passwords OAC 4501:2-10-06

Legislative Service Commission— legislative documents RC 101.30

License revocation proceedings for nurses and doctors RC 4723.28(E) &4731.22(C)(1)

Licensing records - certain information contained in reading instruction program licensing records OAC 3301-32-13(G)

Loans, financial statements and other data RC 166.05(E)

Ohio Attorney General Marc Dann • Auditor of State Mary Taylor, CPA Appendix B-5 Ohio Sunshine Laws 2008: An Open Government Resource Manual

Lottery Commission meeting records; available on good cause showing with prior notification to director RC 3770.02

Managed Care Plans - medical records of enrollees OAC 5101:3-26-071(E)(1)(b) & 5101:3-26-083(A)(2)

Maternal and Child Health Block Grant programs RC 3701.028(A)

MCO (managed care organizations) records OAC 4123-6-15

Medical board – investigations RC 4731.22(F)(5)

Medical records of employee assistance RC 3701.041(B)

Licensing records - certain information contained in reading instruction program OAC 3301-32-13(G) licensing records

Loans, financial statements and other data RC 166.05(E)

Lottery Commission meeting records; available on good cause showing with prior notification to director RC 3770.02

OAC 5101:3-26-071(E)(1)(b) & 5101:3-26-083(A)(2) Managed Care Plans - medical records of enrollees

Maternal and Child Health Block Grant programs RC 3701.028(A)

MCO (managed care organizations) records OAC 4123-6-15

Medical board – investigations RC 4731.22(F)(5)

Medical records of employee assistance program RC 3701.041(B)

Medical records of handicapped applicants for employment OAC 4112-5-08(B)(3)

Mental health board - information which identifies an individual subject of research by mental health board or OAC 5122-28-05(A) agency

Mentally ill, hospitalization records of Mental retardation - criminal records or background check of applicant ORC 5122.31, RC 5126.28(H)(1), OAC 5122-7-21(I)

Mental retardation or developmental disabilities – client records OAC 5123-15-01(H)(5)

Mental retardation - Records of Adult Services OAC 5123:2-1-06(I)

Mental retardation - records of patients accessible only to department RC 5123.31, RC 2317.02(B)

Monopolies investigations - materials obtained through investigation RC 1331.16(M)

Motor vehicle salvage dealers - confidentiality of applications for licenses RC 4738.14

Municipal income tax returns; investigations RC 718.13

Appendix B-6 Ohio Attorney General Marc Dann • Auditor of State Mary Taylor, CPA Ohio Sunshine Laws 2008: An Open Government Resource Manual

Non-spousal donor of artificial insemination RC 3111.94

Nonprofit organizations receiving governmental funds; confidentiality of patient and client records; financial RC 149.431 records (see, Appendix B)

RC 3721.031(A) & (B); 3721.13(A)(10); 3721.25(A), (B) Nursing homes and community alternative homes &(C); 3721.31(F); 3722.12(B)(19) & 3724.07(B)(5)

Nursing home administrators – test materials and examinations used for licensure RC 1347.08(F)(9)

ODJFS - Results of investigations of in-home aide by CDHS or children services OAC 5101:2-14-03(C) & (D)

ODJFS - Investigation reports prepared by OAC 5101:2-14-57(E) & (F)

ODJFS – investigation related to child abuse and neglect, OAC 5101:2-14-62(A) identity of confidential source or witness

ODJFS - complaints of abuse and neglect at day-care homes and centers OAC 5101:2-12-08(G), 5101:2-13-08(G)

Ohio Department of Job and Family Services (ODJFS), information furnished to administrator RC 4141.162(E), .21 & .22(A)

ODJFS, wage and claim information OAC 4141-16-03

Ohio Department of Transportation(ODOT) - cost estimates of project to be confidential until all bids RC 5525.15 received

ODOT - information relative to bidder qualification to be confidential RC 5525.04

ODOT - sealed bids for construction projects RC 5525.01

Ohio Coal Development Office – trade secrets and other proprietary information RC 1551.11(B)

Ohio Commercial Insurance Joint Underwriting Association RC 3930.10

Ohio Power Sitting Board - information discussed at certificate pre-application conferences OAC 4906-5-01(C)(1)

Ohio State Racing Commission - veterinarian’s reports OAC 3769-8-01(E)(3) & 3769-18-01(E)(3)

Ombudsman investigative files for long- term care programs RC 173.22(A)

Optometrist’s patient records OAC 4725-5-11

Organized crime task force referral information RC 177.03(D)(5)

PFDPF - information concerning account RC 742.41(B) & (C)

Ohio Attorney General Marc Dann • Auditor of State Mary Taylor, CPA Appendix B-7 Ohio Sunshine Laws 2008: An Open Government Resource Manual

Peace officers’ home addresses during criminal trial criminal RC 2921.24(A)

Physician-patient testimonial privilege RC 2317.02(B)(1)

Physicians assistants, investigation information of RC 4730.26(A)

Poison control - Information about individuals receiving treatment OAC 3701-41-03(G)

Pre-sentence investigation report, content RC 2951.03(D)(1) & 2953.08(F)(1)

Crim. R. 32.2; RC 2953.08(F)(1) Pre-sentence investigation reports are confidential except

in the case of aggravated murder

Psychologist-client privilege; only waived OAC 4732-17-01(G)(1) by client

Psychologist-patient privilege; communication privilege waived RC 4732.19 only by patient

Psychologists - Investigation information regarding research of psychologists OAC 4732-17-02(J)

Public accountant audit reports RC 4701.19(B)

Public accountant client information OAC 4701-11-02(A)

Public Assistance, recipients of RC 5101.27(A), OAC 5101:1-1-03(B)

Public children services agency or private agency – the residential address of an officer or employee and persons RC 2151.142 related by consanguinity or affinity

Public Defender - information obtained for determining indigent status; all attorney- RC 120.38 client communications

Public officials or employees, restrictions on use of RC 102.03(B) confidential materials obtained through official position

Public securities records RC 9.96

PUCO - Certain information submitted for registration RC 4905.82(B) & (C)

PUCO - information acquired in respect to transaction, RC 4901.16 property, or business of any public utility

Purchases by competitive sealed proposal RC 125.071

Radon measurements RC 3723.09(H)

Railroad crossings - Data compiled for purposes of identifying and evaluating high RC 4907.471(A); 23 U.S.C. 409 accident locations at-grade RR crossings

Appendix B-8 Ohio Attorney General Marc Dann • Auditor of State Mary Taylor, CPA Ohio Sunshine Laws 2008: An Open Government Resource Manual

Rail development commission – confidential data supplied to commission RC 4981.03(D)

Real Estate Commission – information obtained by investigators RC 4735.05(D)

Rehabilitation services, client records RC 3304.21

Rehabilitation Services Commission - information on OAC 3304-2-63 clients unless client consents

Rehabilitation Services Commission - information a retail sales dealer obtains OAC 3304-6-03(G) about a consumer

Savings & loans - Confidentiality and use of information; RC 1155.16(A) examinations

School Employees Health Care Board RC 9.901(E)

Sealed criminal records, inspection of allowed only by certain parties RC 2953.32(D) & 2953.53(D)

Sealed or expunged records, release or dissemination is a RC 2953.35(A) fourth degree misdemeanor

Search warrant proceedings – transcripts not released until warrant executed RC 2933.231(E)

Second mortgage lenders; second mortgage loan reports RC 1321.55(B)(2)

Securities - records regarding ownership and transfer RC 9.96(C)(5)

Security and infrastructure records RC 149.433

SERB - upon request, information obtained by SERB through investigation of unfair labor practices OAC 4117-7-02(F)

Social Security numbers on registered death certificates is public record RC 3705.16

Social Services, Division of - reports and investigations of child abuse and neglect; information submitted and OAC 5101:2-34-38(A) contained in the central registry

State Emergency Response Committee -information submitted which claimant submits as confidential or trades OAC 3750-60-25(A) & 27 secrets

State Highway Patrol accident reports may be withheld until all criminal prosecution has ended RC 5502.12

State Teachers and Public School Employees Retirement Board; members’ account history, personal history, medical information & benefits paid RC 3307.21 & 3309.22

Ohio Attorney General Marc Dann • Auditor of State Mary Taylor, CPA Appendix B-9 Ohio Sunshine Laws 2008: An Open Government Resource Manual

Student identities – Prevents disclosure. This statute has come up in two contexts: disgruntled student who want to know grades/status, etc. of fellow classmates; student/visitor who has been criminally assaulted and 20 U.S.C. 1232(g) wants the identities of other students who may have suffered a similar fate

Students - Names of students in surveys by State Board of Proprietary School Registration OAC 3332-1-14(D)

Students - limited release of personally identifiable information of students attending public schools RC 3319.321(A) &(B)

Superintendent of insurance records RC 3901.44(B), 3901.48, 3903.11 & 3999.36(C)

Tax returns - prohibition against divulging tax return information RC 5703.21(A)

Tax exempt corporations - certain records of tax exempt corporations running public recreational facilities RC 5709.081(D)

Tax returns - State of Ohio personal income tax returns OAC 5703-7-07

Tax information RC 5711.10, 5711.101, 5715.49 & 5715.50

Taxation - information acquired as result of tax returns, investigations, hearings or verifications required by this RC 5747.18(C) chapter is confidential

Taxation records, estates RC 5731.90(A)(1)

Telephone account wagering system, information related to telephone wagers OAC 3769-3-32(I) & 13-32(I)

Trade secrets, definition RC 1333.61(D)

Trade secrets, materials submitted to Department of Development, industrial technology and enterprise RC 122.36 advisory council

Trade secrets or proprietary or confidential business information upon request OAC 123:5-1-08(E)

Trade secrets and confidential business information; applicants for emergency response committee RC 3750.02(B)(2)(c)(i) & (vii)

Trade secret or financial information protected RC 921.04(B)

Trade secrets, test data and other proprietary information upon request OAC 123:5-1-10(L)

Trade secrets, unauthorized disclosure first-degree misdemeanor RC 1331.99(B)

Unclaimed funds RC 169.03(F)

Uniform Electronic Transactions Act RC 1306.23

Appendix B-10 Ohio Attorney General Marc Dann • Auditor of State Mary Taylor, CPA Ohio Sunshine Laws 2008: An Open Government Resource Manual

Veterans’ services - Certain information pertaining to applications for veterans' services assistance RC 5901.09(A) &(B); 5902.04(C)

Veterinarian’s treatment records OAC 4741-1-22(A)

Victim impact statements RC 2947.051(C) & RC 2151.355(A)&(B)

Victim's pre-sentencing written statement RC 2930.14(A)

Victim's request for notice of offender's change of information RC 2950.10(A)(4)

Water pollution (trade secrets) RC 6111.05 & 6123.20

Welfare, recipients of see, “Public Assistance”

Youth Services - Records of youths in custody accessible only to department, unless department consents to release RC 5139.05(D) or court so orders

Ohio Attorney General Marc Dann • Auditor of State Mary Taylor, CPA Appendix B-11 Ohio Sunshine Laws 2008: An Open Government Resource Manual

Appendix B-12 Ohio Attorney General Marc Dann • Auditor of State Mary Taylor, CPA Ohio Sunshine Laws 2008: An Open Government Resource Manual

Appendix C: Ohio Attorney General Opinions Interpreting Ohio’s Open Meetings Act

The following are summaries of the Opinions of the Ohio Attorney General that have addressed or interpreted the Open Meetings Act. Be aware that the validity of any one opinion may have been affected by a subsequent court opinion or statutory change.

07-019 Authority of a board of township trustees to maintain order at, approve the minutes of, and provide and distribute a written agenda for its regular meetings.

00-035 Public hearings conducted by a township board of zoning appeals to consider the matters described in R.C. 519.14(A)-(C) are not “meetings” for purposes of R.C. 121.22, but, rather, are quasi-judicial proceedings. (1985 Op. Atty. Gen. No. 85- 044 (syllabus, paragraph two), overruled.); followed by Groeff-Knight v. Brd. of Appeals of Liberty Twnshp, (June 14, 2004) Fifth Dist. No. 03CAH08042.

96-010 Absent adoption of a rule by a county board of mental retardation and developmental disabilities specifying the day on which its annual organizational meeting is to be held, the board’s annual organizational meeting is not one of the regularly scheduled meetings for purposes of the removal provision of R.C. 5126.04.

95-030 A district advisory council, established pursuant to R.C. 3709.03 has inherent authority to call special meetings of the council by acting through the concurrence of a majority of its members with respect to a particular meeting or by promulgating a procedural rule authorizing specified officers or members of the council to call special meetings; the board of health of a general health district and the state director of health, as expressly provided in R.C. 3709.03, are the only other public authorities with power to call a special meeting of the district advisory council.

95-001 A PASSPORT administrative agency that is operated by a private not-for-profit agency pursuant to 14 Ohio Admin. Code 51101:3-31-03(A)(1) is a public office as defined at R.C. 149.011(A) for purposes of the public records law and a public body as defined at R.C. 121.22 for purposes of the open meetings law.

94-096 A committee of private citizens and various public officers or employees that is established by the board of health of a general health district for the purpose of advising the board on matters pertaining to the administration of a state or federal grant program is a public body; where the establishment of the committee is not required or authorized by the terms of the grant or any action of the general health district board, such committee is not a public body.

Ohio Attorney General Marc Dann • Auditor of State Mary Taylor, CPA Appendix C-1 Ohio Sunshine Laws 2008: An Open Government Resource Manual

94-014 The panel created by the Erie County Court of Common Pleas in local rule 17.08(F) is not subject to the open meeting requirements.

93-012 The Industrial Commission is a public body as defined in R.C. 121.22(B)(1) and is therefore subject to the open meeting requirements of R.C. 121.22; R.C. 4121.36 provides that orders, rules, memoranda, and decisions of the Industrial Commission with respect to hearings conducted under R.C. 4121.36 may be adopted either in a meeting of the commission or by circulation to individual commissioners and thereby establishes an exception to the requirement of R.C. 121.22 that the Industrial Commission adopt all resolutions, rules, or formal actions in an open meeting.

92-078 The board of directors of a county agricultural society is a public body subject to the open meeting requirements of R.C. 121.22.

92-077 An advisory committee legislatively created by a board of county commissioners to make recommendations to the board on matters relating to a proposed county jail is a public body subject to the provisions of R.C. 121.22.

92-065 A housing advisory board created by a county under R.C. 176.01 is a public body for purposes of R.C.121.22.

92-032 A board of township trustees must conduct its open meetings in a public meeting place, as determined in its fair and impartial discretion; board of township trustees may not conduct an executive session from which the public is excluded in order to deliberate about a proposed zoning change, even if the board ultimately votes on that matter in an open meeting, unless the deliberations were solely for the purpose of discussing one or more of the six subject areas listed in R.C. 121.22(G).

92-028 Unless a statutory or constitutional provision expressly grants a specific officer of a public body the power to make the decision to call a meeting of such body, the power to make the decision is vested in the body itself and not in an individual officer; the decision that a meeting is necessary requires a concurrence of a majority of the body; pursuant to R.C. 5715.09, the secretary of the board of revision has the power to call a meeting of the board as necessary.

88-087 A board of township trustees has authority to adopt reasonable rules for the conduct of its meetings; such rules may not prohibit audio and video recording of township proceedings, but may regulate such recording to promote the orderly transaction of business without unreasonably interfering with the rights of those present.

Appendix C-2 Ohio Attorney General Marc Dann • Auditor of State Mary Taylor, CPA Ohio Sunshine Laws 2008: An Open Government Resource Manual

88-029 The Public Utilities Commission Nominating Council is a public body as defined in R.C. 121.22.

88-003 The word “property” as used in R.C. 121.22(G)(2) means real and personal property, which includes both tangible and intangible property; the PERS may discuss in executive session the purchase or sale of tangible or intangible property authorized under R.C. 145.11, including but not limited to such items as bonds, notes, stocks, shares, securities commercial paper, and debt or equity interests.

86-091 The Ohio Legal Rights Service Commission is a public body for purposes of R.C. 121.22.

85-048 The open meeting requirements of R.C. 121.22 and R.C. 305.09 are satisfied where a board of county commissioners convenes a public meeting at which only two of the three members are present and the third member of the board, who is not physically present, participates in such board proceedings by means of communications equipment (prior to enactment of R.C. 121.22(C)).

85-046 In its development of amendments to the state health plan, the Statewide Health Coordinating Council (SHCC), must, pursuant to R.C. 3702.56(C), following the procedures set forth in R.C. 119.03(A), (B), (C), and (H), with the exception of requirements imposed pursuant to R.C. 119.03(D), (E), (F), (G), and (I); in particular, the SHCC must follow the public notice and hearing procedures of R.C. 119.03(A) and (C) and must file proposals with the Secretary of State, the Director of the Legislative Service Commission, and the Joint Committee on Agency Rule Review under R.C. 119.03(B) and (H); but proposed amendments to the state health plan are not subject to invalidation by the General Assembly pursuant to R.C. 119.03(I).

85-044 A township board of zoning appeals is a public body for purposes of R.C. 121.22; a township board of zoning appeals may not conduct, in an executive session, deliberations concerning zoning appeal heard pursuant to R.C. 519.14(A) or (B). (Syllabus, paragraph two, overruled by 2000 Op. Atty. Gen. No. 00-035.)

82-081 A soldiers’ relief commission established pursuant to R.C. 5901.02 is a public body for the purposes of R.C. 121.22.

81-005 Because the superintendents’ offices are, pursuant to R.C. 3319.19, to be used by the county board of education when it is in session, and because the board’s meetings are required by R.C. 121.22 to be open to the public, the duty of the board of county commissioners to provide and equip offices includes the duty to provide some type of conference facility.

Ohio Attorney General Marc Dann • Auditor of State Mary Taylor, CPA Appendix C-3 Ohio Sunshine Laws 2008: An Open Government Resource Manual

80-08 A county central committee of a political party is a public body and its members are public officials for purposes of R.C. 121.22; convening the committee pursuant to R.C. 305.02 is a meeting as defined by R.C. 121.22(B)(2), even when the number of members present is fewer than the majority of the total membership; the committee may discuss appointment of a person pursuant to its duties under R.C. 305.02 in executive session under R.C. 121.22(G), however, final voting on such appointment must be held in a public meeting; convening the committee for conducting purely internal party affairs unrelated to the committee’s duties of making appointments to vacant public offices is not a meeting as defined by R.C. 121.22(B)(2).

79-110 The Safety Codes Committee, created by resolution of the Industrial Commission for the purpose of reviewing safety code requirements and drafting revisions for consideration by the Industrial Commission, is not a public body for the purposes of R.C. 121.22.

79-061 The governing board of a community improvement corporation, organized in the manner provided in R.C. 1702.04 and R.C. 1724.01 to R.C. 1724.09, inclusive, does not constitute a public body for the purposes of R.C. 121.22 unless designated an agency of a county, municipal corporation, or any combination thereof pursuant to R.C. 1724.10.

78-059 The Internal Security Committee, established by the Industrial Commission and the Bureau of Workers’ Compensation pursuant to R.C. 4121.22(D), is a public body for purposes of R.C. 121.22.

77-075 Pursuant to R.C. 4112.05(B), the Ohio Civil Rights Commission may not reveal the final terms of conciliation, written or unwritten, to members of the general public who are not parties to the matters conciliated.

Appendix C-4 Ohio Attorney General Marc Dann • Auditor of State Mary Taylor, CPA Ohio Sunshine Laws 2008: An Open Government Resource Manual

Appendix D Ohio Attorney General Opinions Interpreting Ohio’s Public Records Act

The following are summaries of the Opinions of the Ohio Attorney General that have addressed or interpreted the Public Records Act. Be aware that the validity of any one opinion may have been affected by a subsequent court opinion or statutory change.

07-39 In the context of R.C. 2923.129, which concerns the powers and duties of a county sheriff with respect to information kept pertaining to licenses to carry concealed handguns, a journalist is prohibited from making a reproduction by any means, other than through his own mental processes, of the information the journalist is permitted to view under that statute. A sheriff may exercise his discretion in determining a reasonable manner by which a journalist may view, but not copy, that information so long as the confidentiality of other information relative to licenses to carry concealed handguns in maintained. Subject to the journalist exception, revealing, disclosing, or otherwise or otherwise making known any of the information made confidential by the statute is prohibited except as required by a court order, or unless a statute specifically authorizes or requires other uses of such information. R.C. 2923.129(B)(1) does not prohibit a newspaper from publishing information that a journalist has viewed in accordance with the statute.

07-34 A piece of physical evidence collected by law enforcement in connection with a criminal investigation and held by a county prosecuting attorney following conclusion of the trial, appeals, and post conviction proceedings to which the evidence pertains is not a public record for purposes of R.C. 149.43.

07-26 Article II, Section 34a of the Ohio Constitution and Am. Sub HB690, 126th Gen. A. (2006) (eff. April 4, 2007) do not render confidential information about a public employee’s rate of pay, the number of hours worked by the employee, or the amount of compensation paid to the employee, nor do they otherwise exempt this information from inspection and copying under R.C.149.43. Therefore, any person, including any co-worker of the public employee, has the right under R.C. 149.43 to inspect and copy information about a public employee’s pay rate, hours worked and amounts paid.

07-25 The “good cause” standard described in 1991 Op. Att’y Gen. No. 91-003, under which the executive director of a public children services agency (PCSA) determines whether to grant access to child abuse or neglect investigation records included as confidential records under R.C. 5153.17, is applicable to all PCSA records described in R.C. 5153.17, including records pertaining to matters

Ohio Attorney General Marc Dann • Auditor of State Mary Taylor, CPA Appendix D-1 Ohio Sunshine Laws 2008: An Open Government Resource Manual

other than child abuse or neglect investigations. (1991 Op. Att’y Gen. No. 91- 003, approved and clarified.)

A PCSA is responsible for keeping records described in R.C. 5153.17 confidential and may disclose them only as authorized by statute, in accordance with the “good cause” standard described in 1991 Op. Att’y Gen. No. 91-003. If, in conjunction with a criminal proceeding or investigation or a civil proceeding, a PSCA received a subpoena requesting the disclosure of information that is confidential under R.C. 5153.17, the PCSA, in order to preserve the confidentiality prescribed by statute, may file a motion to quash the subpoena, thereby seeking from the court an in camera review of the PCSA’s records and a determination as to whether and to what extent the information may be disclosed.

06-38 In the absence of a statute to the contrary, foreign individuals and entities domiciled in a foreign country are “persons” who are entitled to inspect and copy public records pursuant to R.C. 149.43.

06-37 Except as provided in R.C. 149.43(A)(1)(a)-(y) and R.C. 1724.11, information kept in the records of a community improvement corporation designated as an agency of a county under R.C. 1724.10 is a public record for purposes of R.C. 149.43.

05-47 Because individuals possess a constitutionally protected privacy right in their social security numbers, such numbers when contained in a court’s civil case files are not public records for purposes of R.C. 149.43.

Prior to releasing information from a court’s civil case files, the clerk of court has a duty to redact social security numbers included in those files. An individual’s personal financial information contained in a court’s civil case files is a public record for purposes of R.C 149.43 unless the information is not a “record” of the court or the information falls within one of the exceptions to the definition of the term “public record” set forth in R.C. 149.43(A)(1).

04-50 Under Ohio law, a board of elections has a duty to preserve ballots in sealed containers until any possible recount or election contest is completed. Ballots are therefore not “public records” for purposes of R.C. 149.43 while they remain under seal or where they are subject to a court order prohibiting their release. In addition, they are not subject to inspection under R.C. 3501.13 during such time.

However, once the time within which a possible recount or election contest may occur has passed, pursuant to R.C. 3501.13, such ballots are subject to public inspection “under such reasonable regulations as shall be established by the

Appendix D-2 Ohio Attorney General Marc Dann • Auditor of State Mary Taylor, CPA Ohio Sunshine Laws 2008: An Open Government Resource Manual

board.” Nonetheless, the board of elections remains under a duty to “carefully preserve” ballots used in an election for the remainder of the preservation period prescribed by R.C. 3505.31.

In addition, following the completion of the canvass of election returns under R.C. 3505.32, poll books used in an election are public records of a board of elections and are subject to public inspection in accordance with any reasonable regulations the custodian board of elections has established under R.C. 3501.1.

04-45 Information within a criminal case file is subject both to Ohio’s public records law and a constitutional right of access. Therefore, whether information within a criminal case file may be withheld depends on whether the information meets or is exempt from the definition of a “public record” under the Public Records Act, R.C. 149.43(A)(1), and whether the qualified constitutional right has been overridden.

04-33 A county recorder who makes available in her office a photocopying machine for use by the public may not charge the two-dollar per page fee set forth in R.C. 317.32(I) where the public without the assistance of the recorder or her staff operates the photocopier. The recorder is, instead, subject to R.C. 149.43(B), which requires a public office to provide copies of public records “at cost.”

04-11 A county recorder may not impose a fee upon a requester to inspect records or make copies using their own equipment. However, the county recorder may impose reasonable rules governing the use and operation of such equipment.

03-30 R.C. 2303.26 requires the clerk of courts to carry out her duties “under the direction of [her] court.” Once the judges of a court of common pleas have delegated to the judges of a division of that court authority to determine whether to make that division’s records available to the public through the Internet, and the judges of that division have ordered that its records are not to be accessible to the public through the Internet, the clerk of courts must obey that order, unless a court of competent jurisdiction reverses that order or prohibits its enforcement.

03-25 Information within investigatory work product of a law enforcement office that pertains to case the records of which have been ordered sealed or expunged pursuant to R.C. 2953.31-.61 or R.C. 2151.358 may not be publicly disclosed pursuant to Ohio’s Public Records Act. However, the information may be discoverable under Ohio R. Crim. P. 16.

02-40 Except as provided in R.C. 149.43(A)(1) and R.C. 2950.081(B), sex offender registration information submitted to a county sheriff by a sex offender who is required to register with the sheriff under R.C. Chapter 2950 may be made

Ohio Attorney General Marc Dann • Auditor of State Mary Taylor, CPA Appendix D-3 Ohio Sunshine Laws 2008: An Open Government Resource Manual

available to the general public on the Internet through the sheriff’s web site, provided such access to the public records does not endanger the safety and Integrity of the records or interfere with the discharge of the sheriff’s duties.

A county sheriff that provides sex offender registration information to the general public on the Internet through a web site must provide a written notice containing the information set forth in R.C. 2950.11(B) to all the persons listed in R.C. 2950.11(A).

Except for the persons listed in R.C. 2950.11(A)(1) and 2 Ohio Admin. Code 109:5-2-03(A)(1)(c), a county sheriff may use e-mail to electronically transmit the written notice required by R.C. 2950.11(A). The persons listed in R.C. 2950.11(A)(1) and rule 109:5-2-03(A)(1)(c) must receive the written notice required by R.C. 2950.11(A) by regular mail or by personal delivery to their residences.

02-30 In the absence of facts indicating that the names and addresses of a county sewer district’s customers fall within one of the exceptions to the definition of “[p]ublic record” contained in R.C. 149.43(A)(1), such names and addresses are public records that are subject to disclosure by the sewer district in accordance with R.C. 149.43.

02-14 Transcripts prepared pursuant to R.C. 2301.23 by a court reporter of the court of common pleas are public records under R.C. 149.43, unless the transcripts include or comprise a record that is excepted from the definition of “public record” in R.C. 149.43(A)(1). (1989 Op. Att’y Gen. No. 89-073, syllabus, paragraph two, approved and followed.) A party in a trial of a civil or criminal action in the court of common pleas that requests a photocopy of a transcript previously prepared pursuant to R.C. 2301.23 in the action is required to pay the compensation fixed by the judges of the court of common pleas under R.C. 2301.24 in order to obtain the photocopy of the transcript from the court.

Each party in a trial of a civil or criminal action in the court of common pleas that requests a transcript pursuant to R.C. 2301.23 is required to pay the court reporter of the court of common pleas who prepares the transcript the compensation fixed by the judges of the court of common pleas in accordance with R.C.2301.24.

Each time that a party in a trial of a civil or criminal action in the court of common pleas requests a transcript pursuant to R.C. 2301.23, the court reporter of the court of common pleas who prepares the transcript is entitled to the entire compensation fixed by the judges of the court of common pleas in accordance with R.C. 2301.24, unless the party requests at the same time more than one

Appendix D-4 Ohio Attorney General Marc Dann • Auditor of State Mary Taylor, CPA Ohio Sunshine Laws 2008: An Open Government Resource Manual

transcript of the same testimony or proceeding. In such a situation, pursuant to R.C. 2301.25, the court reporter is entitled to the entire compensation fixed by the judges of the court of common pleas in accordance with R.C. 2301.24 for the first copy and to one-half the compensation allowed for the first copy for each additional copy.

A prosecuting attorney in a trial of a civil or criminal action in the court of common pleas or the court of appeals may not obtain a photocopy of a transcript previously prepared in the action from the court’s file without paying the court reporter of the court of common pleas or the court of appeals, respectively, the compensation fixed by the judges of the court of common pleas in accordance with R.C. 2301.24 or the judges of the court of appeals in accordance with R.C.2501.17, R.C. 9.92(E) and 2933.41(G) respectively.

01-41 Information on a run sheet created and maintained by a county emergency medical services (EMS) organization that documents medication or other treatment administered to a patient by an EMS unit, diagnostic procedures performed by an EMS unit, or the vital signs and other indicia of the patient’s condition or diagnosis satisfies the “medical records” exception of R.C. 149.43(A)(1)(a), and thus is not a “public record” that must be released to the public pursuant to R.C. 149.43(B). (1999 Op. Att’y Gen. No. 99-006, approved and followed.)

Information on a run sheet created and maintained by a county emergency medical services organization that documents medication or other treatment administered to a patient by an EMS unit, diagnostic procedures performed by an EMS unit, or the vital signs and other indicia of the patient’s condition or diagnosis, and is relied upon by a physician for diagnostic or treatment purposes, is a communication covered by the physician-patient testimonial privilege of R.C. 2317.02(B), and thus is confidential information, the release of which is prohibited by law for purposes of R.C. 149.43(A)(1)(v). (1996 Op. Att’y Gen. No. 96-005 and 1999 Op. Att’y Gen. No. 99-006, approved and followed.) If a physician authorizes an emergency medical technician (EMT) to administer a drug or perform other emergency medical services, documentation of the physician’s authorization and administration of the treatment or procedure by the EMS unit may also fall within the physician-patient testimonial privilege.

A written protocol, developed pursuant to R.C. 4765.41, without reference to a particular patient, for use by emergency squad personnel in cases where communication with a physician is not possible and the patient’s life is in danger, does not establish, for purposes of R.C. 149.43(A)(1)(v), a physician- patient testimonial privilege between the physician who prepared the protocol and a patient who is treated by an EMS unit pursuant to that protocol, where

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there is no further communication by the EMS unit with the physician about the condition or treatment of the patient.

If an EMS unit administers a controlled substance to a patient, the patient’s name and address documented on the run sheet will, pursuant to 11 Ohio Admin. Code 4729-9-14(A)(3) (Supp. 2000-2001), be deemed to meet a portion of the record keeping requirements of R.C. 3719.07, and thus will be confidential under the terms of R.C. 3719.13, if the run sheet becomes a permanent part of the patient’s medical record. However, information on the run sheet that pertains to the administration of a drug that is not a controlled substance is not required by R.C.3719.07 or other provision of R.C. Chapter 3719, and thus does not fall within the confidentiality requirements of R.C. 3719.13

01-12 Data, photographs, maps, and other information created, collected, prepared, maintained, and published pursuant to R.C. 1504.02(A)(6) by the Department of Natural Resources’ Division of Real Estate and Land Management are public records for purposes of R.C. 149.43.

If the Department of Natural Resources stores, produces, organizes, or compiles public records in such a manner that enhances the value of data or information included therein, it may charge for copies an amount that includes the additional costs of copying the information in such enhanced or “value-added” format.

R.C. 1501.01, which authorizes the director of the Department of Natural Resources to “publish and sell” data, reports, and information, does not authorize the director to charge an amount in excess of its actual cost for providing copies of the records created and maintained pursuant to R.C. 1504.02(A)(6).

00-46 A county recorder may make indexed public records available through the Internet, provided this does not endanger the records or interfere with the recorder’s duties; a fee cannot be charged or collected to inspect or copy records from the Internet when a person does not use equipment maintained by the recorder; Internet access cannot be limited to real estate title companies.

00-36 Governor’s Office of Veterans Affairs is prohibited by 32 C.F.R. § 45.3(e)(4) from releasing a copy of a Certificate of Release or Discharge from Active Duty (DD Form 214) without the written consent of the service member who is the subject of the DD Form 214.

00-21 R.C. 149.43, as amended by Am. Sub. S.B. 78, 123rd Gen. A. (1999) (eff. Dec. 16, 1999), imposes no duty upon any particular individual or office to notify public offices of a peace officer’s residential and familial information or to update the database.

Appendix D-6 Ohio Attorney General Marc Dann • Auditor of State Mary Taylor, CPA Ohio Sunshine Laws 2008: An Open Government Resource Manual

For purposes of R.C. 149.43, a child of a peace officer includes a natural or adopted child, a stepchild, and a minor or adult child.

Under the definition in R.C. 149.43(A)(7), peace officer residential and familial information encompasses only records that both contain the information listed in the statute and disclose the relationship of the information to a peace officer or a spouse, former spouse, or child of the peace officer, and those are the only records that come within the statutory exception to mandatory disclosure provided by R.C. 149.43(A)(1)(p). The exception for peace officer residential and familial information applies only to information contained in a record that presents a reasonable expectation of privacy, and does not extend to records kept by a county recorder or other public official for general public access. The general provisions of R.C. 149.43 excluding peace officer residential and familial information from mandatory disclosure do not operate to impose requirements or limitations on systems of public records that have been designed and established for general public access, where there is no reasonable basis for asserting a privacy interest and no expectation that the information will be identifiable as peace officer residential and familial information.

R.C.149.43 provides no liability for disclosing information that comes within an exception to the definition of “public record.” Liability may result, however, from disclosing a record that is made confidential by a provision of law other than R.C.149.43.

99-12 When county office chooses to create customized document from existing public record it may only charge its actual cost, which does not include employee time or computer programming fees.

99-06 Information on a county EMS run sheet that does not satisfy either the medical records exception or the “catch-all” exception is a public record and must be disclosed pursuant to R.C. 149.43(B). HIV testing information contained in run sheets must not be disclosed.

97-38 Information submitted to county sheriff pursuant to R.C. Chapter 2950 by an individual who has been convicted of or pleaded guilty to a sexually oriented offense is a public record that must be made available for inspection to any person, except to the extent that such information comprises “records the release of which is prohibited by state or federal law.”

97-01 Information in workers’ compensation claim file that indicates that an individual has been diagnosed as having AIDS or an AIDS-related condition is not a public record that the Bureau of Workers’ Compensation must disclose to the public.

Ohio Attorney General Marc Dann • Auditor of State Mary Taylor, CPA Appendix D-7 Ohio Sunshine Laws 2008: An Open Government Resource Manual

96-34 County recorder not required removing or obliterating Social Security account numbers from documents before recording those instruments.

96-05 Records collected for trauma system registry or emergency medical services incidence reporting system that constitute medical records or physician/patient privilege do not constitute public records; State Board of Emergency Medical Services not required to disclose such records; Board is required to maintain confidentiality of any patient-identifying information contained therein.

95-001 PASSPORT administrative agency operated by a private non-profit agency is a public office for purposes of Public Records Act and public body for purposes of Open Meetings Act.

94-89 Clerk of court cannot remove from a court file a pleading that is stricken from the record or an original pleading when a substitute pleading is filed in place of the original unless permitted by law or appropriate records commission.

94-84 A county human services department may release the address of a current recipient of aid to dependent children, general assistance, or disability assistance to a law enforcement agency that has authority to apprehend an individual under an outstanding felony warrant.

94-58 A township clerk is authorized to have access to estate tax returns or other records or information made confidential by R.C. 5731.90 in connection with the duties and responsibilities of the clerk; county treasurer who reports collection of estate tax to a township clerk is permitted to reveal the identity of taxpayer to the township clerk in the course of making the report.

94-46 All information pertaining to LEADS is not public record subject to disclosure.

94-06 If a person requesting copies of public records stored by the county recorder on microfiche or film presents a legitimate reason why paper copies are insufficient or impracticable and assumes the expense of making the copies in that medium, the county recorder is required to make available in the same medium a copy of the portions of the microfiche or film containing the public records.

93-38 When a court orders official records of a case sealed and such order does not require sealing of the pertinent official records of an administrative licensing agency, the agency is not required to seal its records; agency may seal its records containing information prohibited from disclosure pursuant to R.C. 2953.35(A).

Appendix D-8 Ohio Attorney General Marc Dann • Auditor of State Mary Taylor, CPA Ohio Sunshine Laws 2008: An Open Government Resource Manual

93-10 Blueprints submitted to a county building inspection department for approval under 3791.04 are public records while in possession of the department.

92-76 Estate tax returns and other tax returns filed pursuant to R.C. 5731 are confidential and may be inspected or copied only as provided in R.C. 5731.90; township clerk has no authority to inspect or copy estate tax materials that are made confidential by R.C. 5731.90 except pursuant to court order for good cause shown.

92-71 A county board of mental retardation and developmental disabilities may not disclose to a parent organization the names of the board’s clients or the names, addresses and phone numbers if the parents of the board’s clients unless proper consent is obtained.

92-46 Reports and investigations pursuant to R.C. 2151.421 are confidential and dissemination of such information to an agency or organization is permitted only if the agency or organization has rules or policies governing the dissemination of confidential information consistent with O.A.C. 5101:2-34-38; O.A.C. 5101:2- 34-38(F) permits disclosure of child abuse and neglect investigation information when the dissemination of information is believed to be in the best interest of an alleged child victim, his family, or caretaker, a child residing or participating in an activity at an out-of-home care setting where alleged abuse or neglect has been reported, or a child who is an alleged perpetrator.

92-05 A copy of a federal income tax Form W-2 prepared and maintained by a township as an employer is subject to inspection as a public record.

91-53 Federal tax return information filed by an individual pursuant to R.C. 3113.215(B)(5) and a local rule of court is a public record; confidentiality of federal income tax returns is inapplicable to income tax returns submitted to a court of common pleas by a litigant in connection with a child support determination or modification proceeding in that court.

91-03 County prosecuting attorney may release children services agency’s child abuse or neglect investigation file only with written permission of agency executive secretary; executive secretary may only grant permission for good cause; child abuse or neglect investigation records are not public records.

90-103 Absent statutory authority, county recorder is without authority to delete documents from the records of the county recorder.

Ohio Attorney General Marc Dann • Auditor of State Mary Taylor, CPA Appendix D-9 Ohio Sunshine Laws 2008: An Open Government Resource Manual

90-102 Public Records Act does not make confidential all records filed with Ohio taxation authorities; specific revised code sections make particular information confidential.

90-101 Records of juvenile offenders are not public records to the extent they are law enforcement investigator records; sealed or expunged juvenile records are not public records.

90-099 Public school officials may not release information concerning illegal drug or alcohol use by students to law enforcement agencies where such information is personally identifiable information other than directory information concerning any student attending a public school.

90-057 Subject to the provisions of R.C. 149.351(A), a county official may, pursuant to a valid contract, temporarily transfer physical custody of the records of his office to a private contractor to microfilm such records at the facilities of the contractor; contract must incorporate sufficient safeguards to prevent loss, damage, mutilation, or destruction of the records.

90-50 Names, addresses, and telephone numbers of employees of a public school district are public records open to inspection by any person; motive is irrelevant even if for commercial purposes.

90-07 Unless state or federal law prohibits disclosure to person who is subject of information kept by Ohio public office, R.C. Chapter 1347 permits person to inspect and copy such information. Chapter 1347 is not a provision of state law prohibiting the release of information under R.C. 149.43.

89-84 Records that do not constitute personal information systems as used in R.C. chapter 1347 are not subject to disclosure provision of chapter 1347; child abuse and neglect investigatory records maintained by public children services agency constitute investigatory material compiled for law enforcement purposes within the meaning of R.C. 1347(A)(1)(e).

89-73 Shorthand notes taken pursuant to R.C. 2301.20 and transcripts prepared pursuant to 2301.23 are public records unless they include or comprise a record excepted from the definition of public record.

89-55 A judicial determination that a particular entity is a public office under R.C. 149.011(A) is not determinative of the question whether that entity is a public office under R.C. 117.01(D) for purposes of audit and regulation by the Auditor of State.

Appendix D-10 Ohio Attorney General Marc Dann • Auditor of State Mary Taylor, CPA Ohio Sunshine Laws 2008: An Open Government Resource Manual

89-42 Providing that properly approved record retention schedules under R.C. 149.333 permit disposal of paper or other original documents after recording by optical disk process, original documents may be destroyed and the recorded information stored on optical disks becomes the original of the public record.

88-103 Application to the county veterans service commission for assistance under R.C. chapter 5901 is a public record (now exempt, R.C. 121.22 and 149.43).

87-24 A community improvement corporation organized pursuant to R.C. chapter 724 is not a political subdivision as that term is defined in R.C. 2744.01(F).

87-10 A public school may not forward personal information regarding the first-time use of drugs or alcohol by a student on school property to local law enforcement agencies without the consent of the student’s parent or guardian, or the student, where appropriate.

86-96 Disclosure of the number of persons employed by an applicant at the time of application for a loan is prohibited where such information is submitted to the Director of Development, the Controlling Board, or the Minority Development Financing Commission in connection with a loan application.

86-89 A personnel file maintained by an exempted village school district is a public record except to the extent such file may include records that are excepted from the definition of the term public record.

86-69 A letter requesting an advisory opinion from the Ohio Ethics Commission under R.C. 102.08 and the documents held by the Commission concerning such advisory opinion are public records.

86-33 The Unemployment Compensation Board of Review may, in accordance with the specific terms of the schedule of retention pertaining thereto and approved by the State Records Commission, destroy or dispose of its hearing records six months after a decision by the Board of Review becomes final; the hearing records shall be destroyed or disposed of within 60 days after the expiration of the six-month retention period, unless, in the opinion of the Board of Review, they pertain to any pending case, claim or action.

85-87 Appraisal cards that are kept by the office of the county auditor and that contain information used in the evaluation and assessment of real property for purposes of taxation are subject to public inspection and disclosure of such documents does not violate either R.C. 5715.49 or R.C. 5715.50.

Ohio Attorney General Marc Dann • Auditor of State Mary Taylor, CPA Appendix D-11 Ohio Sunshine Laws 2008: An Open Government Resource Manual

84-84 Client records held by the Rehabilitation Services Commission in connection with the state vocational rehabilitation services program are not public records and cannot be disclosed without the consent of the person to whom the records relate.

84-79 Grand jury subpoenas while in possession of the clerk of courts prior to I issuance in accordance with R.C.2939.12 are not public records.

84-77 Under R.C. 1347.08, a juvenile court must permit a juvenile or a duly-authorized attorney who represents the juvenile to inspect court records pertaining to the juvenile unless the records are exempted under R.C. 1347.04(A)(1)(e), .08(C) or (E)(2). Under Juv. R. 37(B), the records may not be put to any public use except in the course of an appeal or as authorized by order of the court.

84-15 The director of the Ohio Department of Mental Retardation and Developmental Disabilities may make available to persons approved by the director the medical, psychological, social, and educational records of persons who have been nominated for protective services pursuant to R.C. 5123.58.

83-100 The Ohio State Board of Psychology does not have the authority to expunge or actually destroy its official records except as provided by law; not required to seal any of its official records unless an order sealing the same specifically directs to do so by the court; may seal information or data contained in its official records which are not public records within meaning of 149.43(A)(1).

83-99 Since the examinations administered by the State Board of Examiners of Architects are records under R.C. 149.40, and there is no law prohibiting the destruction of such examinations or requiring the retention of such examinations for a specified period of time, such examinations may be disposed of in accordance with a schedule of records retention or an application for records disposal approved by the State Records Commission pursuant to R.C. 149.32.

83-71 A county department of welfare is prohibited from disclosing to law enforcement personnel personal information about applicants for or recipients of Aid to Families with Dependent Children or poor relief unless such law enforcement personnel are prosecuting fraud or seeking child support and are directly connected with the enforcement of the Food Stamp Act or regulations, other federal assistance programs or general relief programs or the applicant or recipient has consented in writing.

83-03 Materials of all varieties (including but not limited to, correspondence, memorandums, notes, reports, audio and video recordings, motion picture films, and photographs) which are received by public officials and employees, or

Appendix D-12 Ohio Attorney General Marc Dann • Auditor of State Mary Taylor, CPA Ohio Sunshine Laws 2008: An Open Government Resource Manual

created and maintained by them at public expense, are considered records if they serve to document the organization, functions, policies, decisions, procedures, operations, or other activities of the public office.

82-104 Birth and death records kept by a probate court pursuant to R.C. 2101.12 are public records which must be made available to any member of the general public as required by R.C. 149.43, regardless of the motive which such member of the public has for inspecting such records.

81-51 Neither federal law nor R.C. 149.43 exempts from disclosure records concerning amounts paid to individual providers by the state of Ohio in connection with the Medicaid program.

81-43 A news-hook maintained by a city police department is not a public record under the terms of R.C. 149.43, and need not, therefore, be disclosed to all members of the public for any reason whatsoever.

81-38 With the exception of confidential law enforcement investigatory records, trial preparation records, and adoption records, the Ohio Civil Rights Commission must disclose to an employee personnel information that is subject to the provisions of R.C. chapter 1347, including medical records and records the release of which is prohibited by state or federal law, unless state or federal law expressly prohibits disclosure of such information even to the person who is the subject of the information unless it is determined that the disclosure of medical records to the employee may have an adverse effect upon the employee, the Commission must disclose the medical records to a physician, psychiatrist, or psychologist designated by the employee, rather than to the employee himself.

81-19 The faculty inventory and the report on faculty services maintained by the Ohio Board of Regents on computer tapes are not public records as 20 U.S.C. 1 232(b)(1) restricts the public release of such.

81-14 Complaints filed with the Division of Real Estate concerning violations of R.C. chapter 4735 except those that qualify as confidential law enforcement investigatory records are public records.

81-06 Employee address and payroll records maintained by a board of township trustees are public records.

80-103 Trial preparation records include only those records specifically compiled by a governmental unit after the unit’s attention has focused upon a particular person or claim, in reasonable anticipation of a civil or criminal proceeding and does

Ohio Attorney General Marc Dann • Auditor of State Mary Taylor, CPA Appendix D-13 Ohio Sunshine Laws 2008: An Open Government Resource Manual

not include those records routinely compiled by a governmental unit as a matter of common practice.

80-96 Unless made confidential by law, all records maintained by a governmental agency that are necessary to the agency’s execution of its duties and responsibilities are public records; public records must be disclosed upon request to any member of the public for any reason; records made confidential by law and subject to Ohio’s Privacy Act may not be disclosed to the public at large, but must be disclosed to the person who is the subject of the records; records pertaining to confidential law enforcement investigations, trial preparations, and adoptions may not be disclosed to either the public at large nor to the person who is the subject of the records, except adoption records may be disclosed with consent of the court.

79-23 As used in R.C. 149.99, ”each offense” means each transaction that results in the removal, destruction, mutilation, transfer or other disposal of records or other damage to records in violation of R.C. 149.351.

77-75 Pursuant to R.C. 4112.05(B), the Ohio Civil Rights Commission may not reveal the final terms of conciliation, written or unwritten, to members of the general public who are not parties to the matters conciliated.

77-43 It is not a violation of R.C. 5122.31 to permit unrestricted access to the general and separate indices of mental illness matters filed in the probate court by the public, as they are public records.

Appendix D-14 Ohio Attorney General Marc Dann • Auditor of State Mary Taylor, CPA Ohio Sunshine Laws 2008: An Open Government Resource Manual

Appendix E Records Management and Archival Procedures For Ohio’s State and Local Government

For additional information on records management and archival procedures for Ohio’s state and local government, contact the following:

Records Retention Scheduling for State Agencies:

Department of Administrative Services General Services Division 4200 Surface Road Columbus, OH 43228 http://das.ohio.gov/

Mike Hardenbrook, State Records Analyst (614) 466-1105 [email protected]

State Archives Records Transfer Policies and Procedures:

Ohio Historical Society State Archives 1982 Velma Avenue Columbus, OH 43211-2497 www.ohiohistory.org

Jelain Chubb, State Archivist (614) 297-2589 [email protected]

Pari Swift, Assistant State Archivist (614) 297-2557 [email protected]

Records Retention, Disposition and Archival Assistance for Local Governments:

Ohio Historical Society State Archives 1982 Velma Avenue Columbus, OH 43211-2497 www.ohiohistory.org/lgr

Katy Klettlinger, Local Government Records Archivist (614) 297-2553 [email protected]

Ohio Attorney General Marc Dann • Auditor of State Mary Taylor, CPA Appendix E-1 Ohio Sunshine Laws 2008: An Open Government Resource Manual

Appendix E-2 Ohio Attorney General Marc Dann • Auditor of State Mary Taylor, CPA Ohio Sunshine Laws 2008: An Open Government Resource Manual Appendix F: The Ohio Electronic Records Committee

The Ohio Electronic Records Committee (OERC) is a coalition of archivists, information technology personnel, librarians, policymakers, and records managers representing state and local agencies, universities, libraries, and historical societies of Ohio. The OERC is dedicated to drafting guidelines and best practices for the creation, maintenance, preservation, and access to electronic records created by Ohio government entities. Electronic records present unique challenges for archivist and records managers. As society shifts from traditional methods of recordkeeping to electronic recordkeeping, the issues surrounding the management of electronic records become more significant. Although the nature of electronic records is constantly evolving, these records are being produced at an ever-increasing rate. As these records multiply, the need for leadership and policy becomes more urgent.

Given this need, the State Archives, in conjunction with the Department of Administrative Services, Office of Policy and Planning, formed the OERC. The goal of the OERC is to draft policy for the creation, maintenance, long-term preservation of, and access to electronic records created by Ohio’s state government. One of the primary concerns of the OERC is to ensure that its work results in practical, easy to implement policies for electronic records in Ohio. To that end, subcommittees are formed to develop guidelines on specific electronic records-keeping issues.

The following guidelines can be found at http://www.ohiohistory.org/ohiojunction/erc.

The Databases as Public Records Guidelines were written to assist state and local government entities in responding to public records requests for information contained in an electronic database.

The Digital Document Imaging Guidelines were written to assist in the design of responsible digital imaging systems. These guidelines identify critical issues for public officials to consider in designing, selecting, implementing and operating digital imaging technologies.

The Trustworthy Information Systems Handbook provides a set of criteria for establishing accurate government records. Whether electronic or paper-based, it is imperative that government records are maintained and reproduced in a manner that ensures their accuracy and authenticity.

Ohio Attorney General Marc Dann • Auditor of State Mary Taylor, CPA Appendix F-1 Ohio Sunshine Laws 2008: An Open Government Resource Manual The Guidelines for Managing Electronic Mail explain the requirements, guidelines, and best practices for electronic mail messages that meet the criteria for records as defined by the Ohio Revised Code. The guidelines are intended to assist state and local government employees in complying with the Public Records Laws concerning their use of e-mail. They also promote best practices and suggestions that facilitate the effective capture, management, and retention of electronic messages as public records.

The Managing Web Content Guidelines are designed to raise awareness about and provide guidance for managing and preserving web resources that meet the criteria for records as defined by the Ohio Revised Code.

For additional information: Website: www.ohiohistory.org/ohiojunction/erc Email: [email protected]

Appendix F-2 Ohio Attorney General Marc Dann • Auditor of State Mary Taylor, CPA Ohio Sunshine Laws 2008: An Open Government Resource Manual TOPICAL INDEX

disks · 85, 41 emails · 16, 17, 19, 44 9 microfiche/microfilm · 85 software · 44 Conference call · 17 911 database · 70 Constitutional Righs · 24, 55, 56, 83, 90, 91 911 tapes · 70-85 Contracts · 37, 43, 64 Copies of public records · 8, 38, 40, 41, 49 cost of · 8, 33, 38 A court transcripts · 52 destruction of · 80, 86-87 Abortion, parental notification bypass records · 75 inspection of · 37 Addresses · 8, 63, 66-67, 77, 83-84, 92 making copies · 40 Administrative appeal · 78 medium of copies · 41 Adoption records · 76 method of requeste · 41 Agencies paying for copies · 40 Child Support Enforcement Agency · 76 reasonable period of time, defined · 38 Children's Services · 66, 89, 77, 84 request for · 37 Federal Agency · 54, 55, 85 W-2 forms · 86 Housing Finance Agency · 54 Copyright · 60 Law Enforcement Agency · 81, 88-90 "fair use" standard · 61 Local Agency · 10, 85 definitions · 60 State Agency · 12, 42, 55, 83 protections granted · 60 Testing Agency · 61 Correctional employees · 49, 66, 84 Attorney's fees · 33, 79 Court action · 27 Attorney-client privilege · 54, 65 executive session discussions · 8, 25 Audio Recordings · 24, 39, 60, 85 injunction · 31 Audits invalidity · 34 Audit Conferences · 14 mandamus · 78 Auidit Work Papers · 43 quo warranto · 32 Court costs · 33, 79 Court records · 54-55, 84, 90-93 B Constitutional right of access · 90 protective order · 92 sealed records · 54, 89, 92 Birth records · 62 social security numbers · 7, 84, 92-93 Board of nursing · 14 statutory right of access · 91 Business hours of a public office · 38 Creating records · 45

C D Catch-all exception · 54-55, 57, 60, 61, 62, 75, 83, 89-90 Death records · 62 attorney-client privilege · 54 Declaratory judgment · 6, 51 Constitutional right to privacy · 55, 83 Deliberations · 11, 17, 18, 19, 25, 26, 30, 34 copyright · 60-61 Department of Job and Family Services records · 76, 77 court records · 54, 55, 84, 90-93 Destruction of records · 67, 80, 86-87 FOIA · 10, 55 retention schedules · 10, 36 HIPAA · 9, 57-58, 62-63 Discovery · 6, 42, 91 Medical Records · 62-63 civil proceedings · 88 Charters · 6, 10 criminal proceedings · 64, 65, 70, 72, 87-88 Child Fatality Review Board · 14, 77 Discussions of public body · 16, 17, 18, 19, 23,25, 27, 32 Chiropractic, State Board of · 14 DNA database records · 76 Civil Rights Commission records · 76 Documents · 6, 10, 27, 38, 42, 47, 53, 54, 63, 65, 80, 82, 85, 91 Confidential Law Enforcement Invesitation Records (CLEIRs) Donor profile records · 42, 76, 77 911 tapes · 70, 85 Drafts · 46, 54 incident reports · 70 Duties · 46, 54 routine offense · 64, 70 of public bodies · 22-26 test · 68, 70 of public offices · 40, 41, 43-44, 45, 51, 52 work product · 72, 73, 77 of public officials · 23, 27, 36-37 Community Improvement Corporations (CICs) · 14 of requester · 47, 48 Compensation of public official · 26 Computers · 41, 44, 46, 48, 74, 85 in camera · 6, 52, 53, 86 E redacting · 7, 8, 9, 38, 51, 52, 57, 63, 65, 70, 71, 72, 75, 82, 84, 85, 86, 89, 93 Education records · 61, 90 waiver · 53 Educational Requirements · 37 Good Sense Rule · 83 Electronic records · 19, 85, 86, 87 Email · 16, 17, 19, 44, 45, 85, Emergency medical services · 43, 63 Emergency medical technicians · 49, 50 H Emergency meeting · 20, 21, 22 Emergency response commission · 14 HIPAA · 9, 57-58, 62, 63 Employees · 9, 17, 26, 29, 36, 39, 46, 48, 49, 57, 66, 67, 80, 83, covered entities · 57 84, 90 directory information · 9, 58, 59, 90 EMS run sheets · 58, 63 dispatch calls · 58 Exceptions to disclosure health plan · 57 attorney-client privilege · 27, 53, 54, 65 healthcare clearinghouse · 57 catch-all exception · 51, 54-77, 82, 83, 89, 90 healthcare provider · 57 child abuse or neglect · 68, 69, 82, 89 jurors · 92 collective bargaining · 8, 27, 46, 86 law enforcement investigations · 58, 68-73 confidential matters · 8, 27, 30, 38, 53, 54, 60, 65 personnel files · 57, 84 Constitutional right to privacy · 23, 55, 57, 58, 66, 82, 83, 84, Privacy Rule · 57, 58 91, 92 Protected Health Information (PHI) · 57, 58 copyrighted material · 60-61 Home addresses · 9 court action · 8, 27, 31, 78 journalist exception · 66-67 court records · 44, 54-55, 82, 84, 90-91, 92, 93 peace officers · 83 federal FOIA · 10, 55 private citizens · 82-83, 92 HIPAA · 9, 57-59, 62, 63 public employees · 67 hospital trade secrets · 8, 27-28, 77 state employees · 83 infrastructure and security records · 74 Hospitals, juvenile arrest · 8, 88-90 records · 62 law enforcement investigations · 53, 58, 68-73, 81, 89 trade secrets · 8, 27, 77 medical records · 62-63 House Bill 9 personnel records · 8, 26, 29, 57, 68, 71, 84 training for elected officials · 36-37 property · 8, 26, 42, 76 compliance for audit purposes · 37 protective orders · 92 residential and familial information · 49, 66-67, 84 security matters · 8, 27 I trial preparation records · 64-65, 88 Waiver · 53 Improper destruction of records · 80, 87 Executive session · 8, 11, 25-30, 34 In camera · 6, 52, 53 general principals · 25 Incident reports · 64, 70, 81, 82, 87 minutes · 23 Inextricably intertwined · 70-71 permissible reasons · 8, 26-28 Informal conversation of public body · 19 proper procedure · 29 Information-gathering by public body · 17, 18 restrictions · 30 Infrastructure record · 74 roll call vote · 24 Injunction special meetings · 21 defined · 7 for improper destruction of records · 80 for violation of Open Meetings Act · 31-32, 33 F Inspecting public records · 14, 23, 40, 44, 48, 50, 51, 79, 85, 88 business hours of public office · 38 Fact-finding by public body · 17, 18 copyrighted works · 60 Family Education Rights and Privacy Act (FERPA) · 90 cost of · 38 Fines for improper destruction of records · 80 duties regarding inspection · 20, 36-37 Firefighters · 66 in camera review · 53 residential and familial info. · 83-84 prompt standard defined · 37-38, 41 Freedom of Information Act (FOIA) · 10, 55 Intellectual Property records · 42, 76

G J

General principles, public records Journalist exception · 50, 66-67 burden of proof · 25, 32 residential and familial info · 49-50 declaratory judgment · 6, 51 written request required · 49 expressio unius est exclusio alterius · 52 Juvenile records · 88-90 Organized Crime Investigations Commission · 14 L Overbroad records request · 48

Law enforcement records · 53, 72, 81, 88 911 tapes · 70, 85 Confidential Law Enforcement Investigatory Records · 68-73 P enforcement matters · 69-70 investigations · 58, 68-73 Parole juvenile records · 89-90 adult parole authority · 14, 75 personal information of officers · 67, 71 hearings · 15 Protected Health Information (PHI) · 58 parole board · 75 sudent drug or alcohol use records · 89, 90 parole officer · 49, 66, 83-84 Litigation parolees · 75 defined · 6 probation records · 75, 89 discussion during executive session · 27, 31, 73, 79, 88 advance payments for copies of records · 40 formal proceedings · 73 attorney's fees · 33, 79 investigatory records · 53, 68-73 copies of records · 8, 40 prospective litigation · 27 court costs · 33, 79 pyschological reports · 62 court transcripts · 52 wrongful denial of records · 78 fines for violation of Open Meetings Act · 33 inability to pay for copies of records · 40 mailing costs · 41 refusal to pay for copies of records · 40 M Payroll records · 83 Peace Officers Mailing residential and familial information · 49, 66-67, 83, 84 copies of records · 40, 41 photographs · 44, 89 notice of meetings · 22 Personnel · 26 Mandamus · 32-33, 47, 51, 78, 79, 92 exception to Open Meetings Act · 26, 29 defined · 6 files · 57, 84 Medical records · 56, 58, 62-63, 66 law enforcment personnel · 68, 71 Meetings Pharmacy, State Board of · 14 charters, effect on · 10 Police offense reports · 81-82, 70 closing mettings to the public · 14 Policies · 36-37, 41, 44-45, 67, 69 defined · 16-19 Privacy ·23, 55-58, 67, 82-85, 90-92 executive session · 25-30 Privacy Act · 67, 90 Ohio General Assembly · 12 Private bodies · 13 individuals · 13 Private entities · 43 notice of · 8, 16, 19-22, 33-34 Pro se · 7, 79-80 openness discussed · 22-23, 25-30 Probation records ·75, 89 private bodies · 13 Prosecutors · 64, 87 Minutes · 16, 19, 20, 23-24, 29, 32-33, 87 Public body Multiple public bodies · 18 action to enforce Open Meetings Act · 6 "decision making" requirement · 8 defined ·12-13 N delegation of authority ·13 duties · 20-23 Notes · 46 executive authority · 13 board members notes · 46 exempt bodies · 13 handwritten notes · 46 factors to consider · 112 investigatory notes · 72-73 individuals · 13 judge's notes · 46 multiple public bodies · 18 legal research · 64 private body as · 13 personal notes · 46 quasi-judicial bodies · 19 pyschotherapy notes · 58 Public office · 8 trial notes · 64 business hours of · 37 Notice of open meeting · 8, 16, 19-22, 33-34 defined · 42-43 Nursing home administrator · 77 duties of · 36-39 Nursing, Board of · 14 Public records copies · 8-9, 38-41, 49 creating records · 45-46 defined · 42 O destruction of records · 80, 86-87 electronic records · 85-87 Open Meetings Act · 5-35 policies · 37, 41, 44-45, 67 Openness discussed · 22 "record" defined · 42-46 requests for public records · 41, 47-56, 62, 78-80, 88-90 Trial preparation records · 66, 88 retention · 10, 36, 80, 86-87 attorney-client privilege · 65 specific types of records, discussed · 51-77, 81-94 discovery · 6, 72, 80, 87-88, 91 Public Records Act · 5, 10, 27, 32, 35-36, 39 law enforcement investigations · 88 Public's rights ·24, 91 legal research · 64 Putative father registry ·76 notes taken by attorney · 64 prosecutor's files · 64-65 settlement agreements · 64 Q

Quasi-judicial bodies · 19 U Quo warranto · 32 Uncharged suspect · 53, 68, 70-71, 82 Updating public records policies · 37 R

Record creation of · 45-46, V defined ·44-46 electronic records · 85-86 Vedio Records· 17, 24, 44, 85 Records retention schedule · 10, 36, 86 Videoconference · 17 Recreational activities of minors · 77, 83 Videotaping meetings · 24, 85 Redacting ·7, 9, 51-56, 70 Regular meeting ·8, 20 Rehabilitation and Correction/Youth Services records ·76 Relator · 78-79 W Remedies for a violation of the Open Meetings Act · 31-34 Waiver · 53 for a violation of the Public Records Act ·78-80 Work sessions · 19 Request for records · 41, 47-50, 51-56, 62, 78-80, 88-90 Written request · 49, 67, 75, 80 commercial requests · 41, 50 limitations on · 39, 41, 87 written requests · 49, 67, 75, 80 Y Residential and familial information · 49, 66-67, 84 Respondent ·78 Youth services · 49, 66, 67, 76, 84, 89 Resumes · 81 Retention of records · 10, 36, 80, 86-87 Rules of statutory construction · 52 Rules requirement for open meetings · 21-22

S

Salaries of public officials · 8 Sealed records ·54, 89, 91 Security records · 74 Settlement agreements · 64-65, 86 Social Security Numbers · 7, 9, 66, 84, 86, 92-93 Special meeting · 20-21 State Board of Pharmacy · 14 State Chiropractic Board · 14 State Medical Board · 14 Statute of limitations ·80 Statutory access · 92 Student disciplinary records · 90

T

Tax records · 14, 86 Teleconference · 17 Telephone numbers · 66 Terrorism · 74 Training for elected officials · 36-37