Winter/Spring 2019 • Published by the Ohio News Media Foundation

Ohio Coalition for Open Government OPEN GOVERNMENT REPORT

Winter/Spring 2019 • Published by The Ohio News Media Foundation

Supreme Court House Bill 139 opens Ohio’s issues several historical records to the public major decisions Before leaving office Gov. John Kasich signed into law protecting public’s House Bill 139, which opened a number of historical records right to know to the public. By Jack Greiner The bill, which was introduced by Rep. Rick Just before 2018 ended, the Ohio Supreme Perales, R-Beavercreek, Court handed down three decisions that will was backed by archivists, immediately enhance the public’s right to know historians and genealogists what its state government is up to. In all three across Ohio who had been cases, Justice Sharon Kennedy wrote the working for several years to majority opinion. Considering these opinions, open public records that had it seems Justice Kennedy has decided to take been kept secret in perpetuity. Robin Heise, manager of the Greene County Archives in a leading role in the area of transparency. Under the bill, the public Xenia, joins Rep. Rick Perales, right, in presenting Ohio News Media Association Executive Director Dennis Hetzel In State ex rel Rogers v. Department now can view county home with a proclamation thanking the association for support of of Rehabilitation and Correction, Justice registers, children’s home House Bill 139. The ONMA joined with historical groups to Kennedy noted: registers, dockets, veterans’ help push for the bill’s passage. “The availability of attorney fees is a check relief records, certain on a public office’s ability to inappropriately adoption records, lunacy records, and many other categories of permanently deny a public-records request and choose retained records after 75 years. Exceptions include records protected by attorney- instead protracted litigation.” client privilege and critical infrastructure records. The Rogers case also demonstrates that Gov. John Kasich signed the bill into law after it passed both the House and questionable exemptions won’t fly. Rogers Senate unanimously on the last day of the legislative session. (see Ohio Supreme Court, page 4)

OGOC joins brief arguing for disclosure of Inside This Issue opioid data in public health lawsuit Dennis Hetzel on open government and the 132nd General Assembly ...... 2 Editor’s note: The Ohio Coalition for Open — the deadliest drug crisis in U.S. history. Government has joined this amicus brief This case could result in billions of dollars Nieporte named new OCOG president arguing that the opioid data should be in payouts and could impact the lives of ...... 4 disclosed. millions of Americans. As part of the case, the Drug Enforcement Administration Kent State’s presidential search From the RCFP produced information in discovery about the needs to be open number of opiate doses sold in each county ...... 4 The Reporters Committee for Freedom by pharmaceutical companies from 2006- How to file a public records complaint of the Press and a coalition of 36 media 2014. HD Media and The Washington Post through the Ohio Court of Claims organizations are supporting HD Media and have sought release of this data, which was ...... 8 The Washington Post’s fight for the release provided to the state and local government of key data related to the ongoing opioid plaintiffs in the case, under state public Sunshine in Ohio could be brighter crisis. records laws. However, a district court order ...... 9 Approximately 1,300 mostly governmental has barred its release, citing a protective Ohio Roundup, pages 10-14 bodies have sued pharmaceutical companies order in the litigation. for their involvement in the opioid epidemic (see amicus brief page 3) National News, page 15 OCOG Open Government Report Winter/Spring 2019 Issue

Open government fared pretty well in Ohio Coalition for Open Government 132nd General Assembly

By Dennis Hetzel, OCOG President 1335 Dublin Rd., Suite 216-B Columbus, Ohio 43215 The end of the 132nd Ohio General Phone: (614) 486-6677 Assembly brought mainly good news for open government advocates in the OCOG TRUSTEES Buckeye State. Some good bills passed, some bills of concern were made better George Rodrigue (Chair) through amendments and nothing really The Plain Dealer bad happened to diminish access and Cleveland transparency. Bills that didn’t become law will have to start over in 2019. The Ohio Lou Colombo Hetzel Baker Hostetler House is off to a good start with the Cleveland announcement by newly elected speaker Larry Householder that he wants House bill wisely treated this as an unfair trade Christopher Cullis committee hearings to be televised, practice instead of a restriction on public The Bryan Times just as full sessions of the Ohio House records, journalists and, for that matter, Bryan and the House Finance Committee are everyday citizens still have access to streamed online now. these important records. Michael Curtin former state representative, Bills that became law School-bus accidents: House Bill media executive 8 blocks the release of identifying Columbus Body cameras: Probably no bill will information of children in school-bus impact citizens concerned about accidents. When the bill got to the Jamie Justice government accountability and Ohio Senate, the ONMA negotiated an ABC 6/FOX 28 transparency more than House Bill 425. exception that allows journalists to view Columbus We identified the likelihood of legislation this information. affecting public records and police-worn Bill Southern body cameras more than two years ago. Loophole closed: The Ohio Supreme The Blade Other states had passed laws with severe Court had blocked winners in public Toledo restrictions, including release only at the records cases from seeking fees discretion of the local sheriff or chief. because of an outmoded provision that Bruce Winges Fortunately, the new Ohio law retains said fees only could be sought if the Beacon Journal the presumption of openness that must request for records was made in person Akron attach to public records. New restrictions or by certified mail. Digital requests now deal with obvious privacy issues such apply. This is a nice win for any citizen PRESIDENT as dead bodies, acts of severe violence involved in open records litigation. Dennis Hetzel and interiors of private residences. Other Ohio News Media Association portions of such video can be released. Records can’t be secret forever: It Columbus Video that captures uses of force by police looked like HB 139 was going to be officers will be open. There’s also an caught in the end-of-December logjam. COUNSEL appeals process for the first time in Ohio I’m proud that ONMA was able to help David Marburger that allows a petition to court that public a coalition of historians, archivists, Cleveland interest outweighs privacy concerns, librarians, adoptees and others end which could be important in exceptional the practice of some records being OCOG EDITOR circumstances. The low-cost, expedited kept secret in perpetuity – for example, Jason Sanford appeals process for record denials in the county hospital records. Other than a Ohio News Media Association Ohio Court of Claim also applies. Dash few, logical exceptions, no records will Columbus cameras were included in the provisions be secret in Ohio for more than 75 years of the bill. now. Legislators also removed a bad Follow OCOG news online at provision that would have added a new www.ohioopengov.com. Mug-shot profiteering: Under HB 6, loophole to the public records law. you can’t charge people for removal of This newsletter is published twice a criminal record. This bill was aimed at Graphic photos: The ONMA strongly yearly for the Ohio Coalition for Open websites that profiteer by charging people opposed HB 451, which exempts Government. OCOG is a 501(c)3 non- who have been arrested for removal of graphic depictions of crime victims from profit organization affiliated with the their booking photographs. Because the the public records law, saying that the Ohio News Media Foundation. (continued above, page 3)

2 OCOG Open Government Report Winter/Spring 2019 Issue continued from page 2 Court of Claims appeals process. Make Campaign finance: Now that he’s “information-gathering” and “fact-finding” bill was unneeded and existing court secretary of state, hopefully former sessions open to the public. Require rulings and privacy laws covered the Sen. Frank LaRose will keep pushing some type of record, video or written, of issue. A clarifying amendment ensured his efforts to make government more executive session deliberations. this new exemption didn’t apply to text transparent. His Senate Bill 44 would The definition of “public record” also descriptions. have allowed local campaign committees is outmoded. Note that something can’t to file finance statements online. be an open record if it isn’t a public The state budget: Massive budget bills record. Court decisions have narrowed always contain efforts to close records, Sealing and expunging: Legislatures the definition further, so ideas for whether those records involve spending or around the country, including Ohio, improvement need discussion. not. (That’s just the way it is.) The 2018-19 are considering many well-intentioned I’m sure the next two years will have state budget was no exception. Fortunately, “second-chance” bills to help those surprises. Please stay alert. Talk to your a number of measures that would have accused or convicted of crimes to get legislators. Let us know how we can created new exemptions didn’t make it into on with their lives. The problem is that help, and contact us anytime you hear the final budget. For example, the Ohio this often involves sealing or, worse, something we might need to know Lottery Commission sought to delay or block expungement of records. Expungement . access to preliminary audit documents. means all evidence is destroyed, and we’ve argued – generally with Dennis Hetzel is executive director of What didn’t pass success -- that this should be extremely the Ohio News Media Association and that mattered most to us rare. Otherwise, government also is president of OCOG. Hetzel is retiring destroying the evidence of what it did from both organizations effective April Ohio Checkbook: HB 40 would and, sometimes, how it screwed up. 2019, with Monica Nieporte taking over have required future state treasurers Expect more of these bills in the future. the positions. For more about Nieporte, to continue the online website to There were many other bills with see the story on page 4. track government spending, www. open government implications that were Hetzel and his wife will move to their ohiocheckbook.com, started by outgoing considered that we don’t have room home in North Carolina, where he plans treasurer Josh Mandel. Keith Faber, the to list. As always, we welcome your to stay active in the media industry new treasurer, plans to continue the site. feedback and questions. and government relations work. Hetzel joined the ONMA in 2010 from Enquirer Data Ohio: For years, Rep. Mike Duffey, Some suggestions for the Media in Cincinnati following a career who is term-limited out of the Legislature 133rd General Assembly as a reporter, editor, general manager now, tried to bring Ohio government into and publisher at newspapers in several the 21st Century with a comprehensive We think there should be states. Hetzel also has taught journalism effort to reform how the state handles improvements in both Ohio’s open at Temple and Penn State universities and presents data. Many aspects of this records and open meetings laws. and published two political thriller novels. bill would’ve helped citizen groups and The ONMA is proposing three reforms journalists covering Ohio government do to the open meetings law: Make open their jobs faster and better. meetings legal disputes part of the

OGOC joins brief arguing for disclosure of opioid data continue from page 1 The information also could shed protective orders are issued, especially light on the government’s failure to in matters involving the government and The media coalition is urging the U.S. adequately address the opioid epidemic, public health. Past legal decisions have Court of Appeals for the Sixth Circuit to the coalition explains, and its release also held that court documents produced reverse the district court’s ruling in Ohio would give the public the necessary to parties under protective orders can’t that would prevent the data’s release. information to hold those in elected be automatically sealed when they are Previously, a West Virginia court offices accountable. filed in court — once a document is filed ordered the release of much of the DEA’s In addition, a lack of access to the with a court, it cannot be sealed unless information on the number of opiate doses data might result in less confidence the common law and First Amendment sold in that state. As a result, it became in judicial processes. In the brief, the presumptions of access are overcome. clear this type of data was important coalition explains that the Supreme “In short, a protective order does not for the public to have access to, the Court has recognized secrecy breeds justify sealing ‘from public view materials coalition argued in a friend-of-the-court distrust of the judicial system and its that the parties have chosen to place in brief filed November 13, 2018. The data ability to adjudicate matters fairly. It the court record,’” the coalition notes. “illuminates the depth and magnitude of also “insulates the participants, mask[s] the prescription drug crisis; indeed, if the impropriety, obscur[es] incompetence To read the brief, go to https://www. West Virginia data is any indication, this and conceal[s] corruption.” rcfp.org/briefs-comments/re-natl-opiate- data could show a dramatic increase in The Sixth Circuit and other courts prescrip-litig/ opioid prescriptions [from 2006-2014],” have repeatedly recognized that public the coalition writes. interest cannot be discounted when 3 OCOG Open Government Report Winter/Spring 2019 Issue Nieporte named new OCOG president

Monica Nieporte, the former the association and OCOG. Thanks to president and publisher of the APG Ohio Dennis’s hard work, OCOG has become media group in Athens, will become a powerful voice for open government the new president of the Ohio Coalition issue in our state. I aim to ensure that for Open Government in April 2019. voice continues to be heard in the years Nieporte is also the incoming president to come.” and executive director of the Ohio News Nieporte is a Canton native and Media Association. graduate of the Scripps School of Nieporte will assume these positions Journalism at Ohio University. She held following the retirement of Dennis Hetzel, her position with APG Ohio since 2014 the current president of OCOG and when the parent company purchased Nieporte executive director of ONMA. American Consolidated Media’s media “I’m honored to be selected to follow properties in Ohio. She had been a publisher in Logan, editor and reporter in in Dennis’ footsteps,” Nieporte said. regional vice president of ACM since Athens and as city editor at the Zanesville “Dennis has been a great leader of both 2008 and with previous positions as a Times Recorder.

Open Government Editorials and Commentary

Kent State’s presidential search needs to be open Commentary by Henry Palattella, on receipts or invoice copies. Repeated search not been secret.” KentWired.com public records requests of the university That shouldn’t matter. We know that and Storbeck/Pimentel & Associates Lovejoy munched on $7 pistachios from When Kent State president Beverly were ignored for months. When asked the hotel bar during the search, but not Warren announced in a university-wide about the records, the university grew the names of the candidates who were email on Oct. 23 that she will step down increasingly distant and silent; it was a interviewed at the hotel. Kent State as president in July, the Kent community silence that spoke volumes. deserves a chance to openly and publicly was stunned. One member of the search committee question and research the candidates, She is a regular sight around campus, even told the Akron Beacon Journal his and the candidates who apply need to whether it’s talking to students in the notes were shredded by the university. understand and embrace that reality. If dining halls, at Risman Plaza on a warm That was a gross misuse of power, and they don’t, they’re unfit for the job. day, or courtside at a basketball game, the thought of this abuse of public trust This presidential search is arguably her million-dollar smile illuminating the happening again sends chills down my the most important one in Kent State’s M.A.C. Center. It’s not a stretch to say spine. history. Whoever steps into Warren’s Warren served as the lifeblood of the Not only are these actions a potential shoes will be in charge for a majority (if university community during her five violation of Ohio’s Sunshine Laws, not all) of Kent State’s 10-year, $1 billion years as its president. but it also is antithetical to our idea of Master Plan. But the process that led to Warren American democracy. My journalism This, Kent State, is why I implore becoming president in 2014 was anything classes taught me about the power of you to make this presidential search but illuminating. Warren was picked as public records, and how they not only public. I’ve seen the university undergo Kent State’s 12th president after a secret serve as a vehicle to prevent corruption, tremendous change during my nearly search by the university. Kent State spent but also allow for us to live in an informed four years here, and I know there’s more nearly $250,000 of public money on the society — two values Kent State chose coming in the future. The public deserves search — many details of which weren’t, to ignore in their last search. Leaders in a chance to question potential presidents and still aren’t, publicly available. America aren’t elected by a group of 17 about that change and their vision for To find Warren, 17 members of a people who meet behind closed doors. Kent State. They also deserve to judge search committee worked with Storbeck/ They’re chosen by us, the people. for themselves whether they think the Pimentel & Associates, a private search Kent State is a place filled with a candidates will foster that growth, or look firm based out of Pennsylvania, to try to group of incredibly diverse, varied and to quash it. find candidates who fit what the university courageous people, and they deserve a And as a journalist, I ask you to was looking for in its next president. chance to develop an organic opinion of think about the example you’re setting. After the committee finished the search, the finalists when they’re exactly that — Public records often form the basis of it never publicly released the names of finalists. what we do; they help us to inform the finalists for the job. Owen Lovejoy, one of the search public and hold people and organizations That can’t happen again. committee members in 2014, told the accountable. Without free and unfettered The proceedings of the 2014 search Daily Kent Stater he felt “more than 50 read like a journalistic horror story. Kent percent of the candidates would not have continue on page 5 State didn’t include any candidate names applied for the job, maybe 75, had the 4 OCOG Open Government Report Winter/Spring 2019 Issue

Open Government Editorials and Commentary

Jack Greiner on Ohio Supreme Court issuing several major decisions protecting public’s right to know continue from page 1 awarded attorney fees, finding that KSU’s concerning a 9 month delay violated R.C. 149.43(B), designated had requested security-camera video which requires prompt production. topic. And even footage related to a use-of-force incident Kesterson’s other suit (“Kesterson though a simple at Ohio’s Marion Correctional Institution. II”) presented similar facts. On April 13, computer search The Ohio Department of Rehabilitation 2016, Ms. Kesterson requested 21 items would disclose and Correction (”ODRC”) denied the concerning KSU’s Title IX violations and the requested request relying on statutory exemptions related matters. KSU produced records record, public for “infrastructure records” and “security in June, but asserted a number of offices in Ohio records.” The Court ruled that both exemptions, including that the requests have repeatedly exemptions lacked merit. The footage, were “overly broad.” While continuing claimed that shot from a mounted camera in plain view to assert its objections, KSU produced such a search is Greiner did not disclose any critical systems of the additional records through December “overly broad.” prison, and at most displayed a “simple 2016. Again, this delay violated the In Kesterson II, the Supreme Court put floor plan.” The Revised Code expressly statutory duty to produce records an end to this practice, noting: provides that a simple floor plan is not a promptly, resulting in a fee award. “While Kesterson did cast a wide net “critical system.” Separate from the attorney fee issue, for ‘communications,’ she limited each Security records, per the Revised Code the Kesterson II case went a long way request temporally, by subject matter, include “portions of records containing toward clarifying (and limiting) the extent and in all but one instance, by the specific specific and unique vulnerability of the “overly broad” objection. In a perfect employees concerned.” assessments or specific and unique world, every public record request would In State ex rel. Athens Cty. Property response plans either of which is intended seek a discreet, immediately identifiable Owners Assn., Inc. v. Athens, the court to prevent or mitigate acts of terrorism, record. But in real life, not every record noted: “[A] person does not come—like a and communication codes or deployment lends itself to a precise identification. serf—hat in hand, seeking permission of plans of law enforcement or emergency Increasingly, public officials the lord to have access to public records. response personnel.” The mounted communicate with one another, about Access to public records is a matter camera disclosed nothing of the sort. public business, via e-mail and text of right.” The recent Supreme Court In short, not only did the Court reject message. In most cases, however, the decisions have given meaning to this ODRC’s position, it concluded that no requesting party doesn’t know the precise sentiment. And it is good news for citizens “’well-informed public office ... reasonably date when the communication was made, throughout Ohio. would believe’ that the failure to produce nor every recipient, nor the precise the security-camera video complied with description set out in the subject line. John C. Greiner is a partner with Graydon the Public Records Act.” And for that Accordingly, requesters make a common Head in Cincinnati.He practices in the areas reason, the Court awarded Rogers his sense request for communications of First Amendment law and commercial attorney fees. between or among a designated set of litigation. Kent State University also was ordered officials, during a limited time frame, to pay attorney fees in two separate cases brought by Lauren Kesterson. In . State ex rel. Kesterson v. Kent State University, (“Kesterson I”) Ms. Kesterson made a records request on February 2, 2016 that included a request for records Kent State’s presidential search regarding training or information provided to the KSU varsity softball team regarding needs to be open Title IX, gender equity and several other related topics. KSU initially responded continued from page 4 by producing approximately 750 pages of records by February 25. But as it turned access to them, the very freedoms we as journalists stand on will crumble. out, KSU had not provided all responsive That’s why I implore you, Kent State, to make this presidential search public. records, and did not do so until November After the last search concluded, a group of JMC faculty placed a full-page ad in of 2016, after Kesterson had filed her The Stater with the words “We’re embarrassed” across the top in large type; it’s mandamus action. Even though the Court taped to the front door of my office and I see it every time I come to work as the found that KSU had ultimately provided all editor. responsive records, and dismissed the Please. I’m urging you. Don’t embarrass us again. request for a writ of mandamus as moot, it

5 OCOG Open Government Report Winter/Spring 2019 Issue

Open Government Editorials and Commentary Editorial: Will JobsOhio claw back its grant like Brooklyn Editorial from The Plain Dealer increase it to $5.7 million by 2021. with Keystone, saying in a voicemail With Keystone’s Jan. 10 “WARN Notice message that “JobsOhio is not an agency For the more than 160 workers then of Plant Closing” to the Ohio Department of the state. We’re a private nonprofit. As a employed at the plant, for the city of of Jobs and Family Services -- informing private nonprofit we are exempt from the Brooklyn, Ohio, and for the Cleveland the state of its intention to close the plant Ohio public record laws.” area’s storied history of garment-making, no later than March 11 and lay off all the Given that JobsOhio’s budget is the arrival in 2015 of a high-end men’s 140 workers now employed there -- the city indirectly underwritten by state liquor suitmaker to take over the closing of Brooklyn has determined that Keystone monopoly profits that support the bonds operations of Hugo Boss AG in Brooklyn will be in default of those terms. The city that provide JobsOhio with its revenues, was fortuitous. has also started the process of trying to it’s arguably a quasi public-private entity. It Keystone Tailored Manufacturing claw back the full $150,000. owes Ohioans more transparency. LLC, formed by the W Diamond Group But what of JobsOhio’s grant? Three But yes, in 2013, the Ohio Supreme of the Chicago area, not only stepped up weeks after Keystone’s formal WARN Court determined that the Ohio legislature to take on the skilled workforce who had letter to the state, JobsOhio still won’t say specifically exempted JobsOhio from most labored long and hard to keep their jobs in whether it will seek to claw back all or some public records law -- shamefully so. The Brooklyn, but also pledged to upgrade the of the $420,000 grant. agency, it appears, isn’t required to release facilities as it brought its made-in-America “We do not comment on active company more on its incentives, or how it enforces Hart Schaffner Marx suits line and other discussions,” JobsOhio spokeswoman them, than the monthly charts and items to Ohio. Renae Scott said via email Wednesday, whatever is mentioned in the public version The acquisition was greased by adding, “however I can confirm we of its tax returns that a private accounting generous grants -- $150,000 from the city are engaged with Keystone Tailored firm releases. of Brooklyn to retain and create jobs and Manufacturing to discuss next steps.” That’s wrong. Ohio citizens deserve to payroll; a $420,000 economic development When asked for terms of the grant, know, at a minimum, how JobsOhio frames grant from JobsOhio, also apparently tied Scott referred our editorial board to a June job-creation and retention requirements to job and payroll goals; and an offered 2015 summary chart of grants that month, in its grants and how it enforces those $650,000 Cuyahoga County loan, which which shows that the $420,000 grant requirements. a county official told reporter Olivera would support Keystone’s creation of 20 Kudos to the city of Brooklyn for Perkins the company never completed the jobs and added $600,000 annual payroll, seeking to enforce terms of its jobs grant paperwork on. the retention of 150 jobs and a fixed to Keystone and claw back its citizens’ Brooklyn’s grant had specific conditions, investment of $6 million. money. JobsOhio, which provided nearly however: Keystone had to retain 172 jobs It’s not clear why the JobsOhio grant’s three times as much money, should do and create 20 more jobs by 2019 and job-retention numbers were so much less the same -- and if its deal with Keystone another 20 by 2021. And the company had than those cited in the city of Brooklyn’s doesn’t give it the same power to claw to maintain those jobs for at least 10 years. jobs grant. back that money, it owes the taxpayers an The company also agreed to maintain Scott refused to provide the actual explanation for why not. the firm’s $4.6 million annual payroll, and terms of JobsOhio’s executed agreement Use of ‘delete’ apps for texts, emails violates Ohio law

From The Columbus Dispatch automatically destroys a digital or electronic for any and all important communications public record would violate state law, said about government business, and there will Government officials using emails and Dennis Hetzel, executive director of the be fewer records — and fewer meaningful text messages to handle public business Ohio News Media Association. public meetings — with a resulting loss in in Ohio had best avoid apps and software “It is clear under Ohio law, as it should transparency and accountability. that instantly or automatically delete their be, that the nature of the content of the “There are plenty of ways already for digital communications. communications, not the device or server public officials to have preliminary dialogue Under state law, no public records can used, should determine if it is a public and discussion outside the public eye. be destroyed unless authorized by a public record. That includes emails and text And that’s perfectly appropriate in many office’s records retention schedule that messages. There are many easy, best situations. So let’s not weaponize digital specifies how long records must be kept practices that public officials can and secrecy,” Hetzel said. before they are destroyed. should follow to make sure these records If a public official uses a personal And, if electronic messages are are preserved,” said Hetzel, also president cellphone for government business, those illegally deleted, the Ohio Supreme Court of the Ohio Coalition for Open Government. communications are public record and ruled a decade ago that government “Any person who has spent more must be preserved. Those of a personal officials must pay the costs of attempting than 30 seconds in the world of politics nature are not public and are protected to recover them and, if successful, turn knows exactly what will happen if personal from release them over for inspection. devices become exempt from open- . A public official’s use of an app that records laws. That is what will be used See Related Story on Page 9 6 OCOG Open Government Report Winter/Spring 2019 Issue

Open Government Editorials and Commentary Blade editorial: Police video is public Editorial from The Toledo Blade addition to those already found in Ohio’s spending a lot of time and money editing Public Records Law. body camera footage to redact images Ohio lawmakers appropriately have They include images of children in that can’t be shown. enacted legislation that brings needed some cases, death and injury that isn’t Backers of this legislation included the clarity to the question of when police body caused by a law enforcement officer, nude American Civil Liberties Union of Ohio camera and dashboard camera video is a bodies, personal medical information, and the Ohio News Media Association. public record. confidential informants, and other private Making police camera footage into a Such video is definitely a public record, matter, such as the interiors of businesses public record helps keep public confidence as asserted by House Bill 425. and homes that are unrelated to a case that, if it is being constantly video- Body-worn and dash cameras are against a law enforcement officer. recorded, at least it is not kept secret and rapidly becoming ubiquitous in police In Cleveland, a federal monitor can be subject to public oversight. departments in the nation. The Columbus overseeing reforms in the Cleveland Making camera footage a public Police Department recorded nearly police department found deficiencies record doesn’t mean the public is being 90,000 incidents on body and dash in the department’s policies governing monitored any less. It does mean that it cameras in a typical month. That’s a lot of the use of body cameras. Cleveland isn’t being done secretly. public records. found in 2015 that the use of cameras Ohio’s law helps set a national In November, Toledo police received contributed to a 40-percent reduction in standard for public accountability and new body cameras — 311 devices, at a citizen complaints against officers over a transparency by law enforcement. total cost of about $228,000. nine-month period. The federal monitor Body and dash cameras account for recommended a comprehensive policy, much of the video used in social media. which helped spur this law into enactment. Their use has contributed dramatically Co-sponsor Rep. Niraj Antani (R., to public accountability in cases of police Miamisburg) noted that the bill doesn’t accused of using excessive force, while require police departments to wear body also protecting lawful police behavior. cams or when to turn them on. By passing House Bill 425, with zero The bill supplies police departments “no” votes in the House or Senate, Ohio with guidelines for transparency, while has made itself a leader in establishing protecting citizens’ privacy. that bodycam and dashcam video is a It may be that the law will require public record. tweaking, as some of the exceptions may The law has many exceptions, in prove excessive, and will result in police

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

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

7 OCOG Open Government Report Winter/Spring 2019 Issue

How to file a public records complaint through the Ohio Court of Claims

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

START HERE

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

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

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

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

8 OCOG Open Government Report Winter/Spring 2019 Issue Editorial: Public records are public regardless of format Editorial from The Columbus Dispatch vanishing-message apps — sort of a 21st or made into screenshots, prompted century equivalent of the sizzling reel-to-reel opposition lawmakers to clarify that New apps that allow people to tape recorder on the old “Mission Impossible” personal social-media posts and communicate without leaving a pesky — don’t belong in public service. messages sent through such apps digital record may be a godsend for The Associated Press recently tracked nonetheless are public records if they those engaged in top-secret negotiations, legislation in all 50 states and found a relate to public business. confidential advising and ordinary number of attempts to shortchange public gossip, but we hope all Ohio public access: It’s a fact of modern life that many of us officials recognize that they’re absolutely • In Louisiana and Kentucky, lawmakers communicate on multiple devices all day inappropriate for government work. tried (and failed, thankfully) to exempt and enjoy no clean separation between It should be obvious: Ohio’s “Sunshine” all communications on personal work and personal time. For government laws require government business to be phones from open-records laws — as employees, that undoubtedly complicates done in public, and that means government if who paid for the phone can change the definition and preservation of public records, with some exceptions, must be whether the communication is public. records, but it doesn’t change the principle available to the public. A government- • A Virginia legislator introduced a bill to that any communication by or to government business text or email that disappears exempt lawmakers’ personal social- employees involving public business must automatically after a set time would be the media records from public disclosure. be retained and made available to the public. same as destroying a public record. • In Missouri, former Gov. Eric Greiten’s A state representative in Missouri, Given the time-honored inclination of staff’s use of the Confide app, which pushing for the public-records bill, said it some in government to evade public scrutiny, automatically deletes messages and best: “We should not be allowed to conduct though, it’s probably worth emphasizing that doesn’t allow them to be forwarded state business using invisible ink.”

Sunshine in Ohio could be brighter

By Randy Ludlow, The Columbus Dispatch It’s a practical, affordable way to clean up the 267 entities cited for 321 violations were some of the more egregious violations.” in Franklin or surrounding counties. Overall, Ohio is neither freezing for lack of For Ohioans who once faced huge legal public records problems arose in 5.5 percent governmental sunshine nor basking in the bills to go to court and challenge denial of of the office’s 4,803 financial audits. brilliance of total transparency. public records, the Ohio Court of Claims’ Most of the violations involved public Ohioans have it better than residents $25 appeals program has been a revelation officials not attending required records in many other states saddled with more- since its inception in late 2016, Hetzel said. training, entities lacking records policies and restrictive laws and outrageous fees. Yet, From a small-town reporter seeking a failure to make records policies available to obstacles remain in Ohio to full and prompt complete police incident report to a father employees and the public. Yost released access to public records. Lawmakers seeking school bus video of a bully assaulting his office’s figures Sunday to coincide with continually search for ways to make more his son, the appeals process has levered Sunshine Week. information secret. Local officials are not loose records in a large majority of cases. “I can understand a bookkeeping error well-versed in their responsibilities as About 70 percent of the time in the 102 — mistakes happen,” Yost said. “But there’s custodians of the people’s records. Court resolved cases, the filing of a complaint no justification for violating the clear law of rulings make it harder to pry some records jars loose records or formal mediation public records. Message to public officials: loose while taking others off the table. persuades the governmental entity to give ‘These are not your records. These are It’s a mixed bag, but one still edged them up — or a citizen concedes that the public records, and it is the law. You need toward “a pretty decent grade, with some denial was proper. to do whatever it takes to remind yourself caveats to the legislature and the courts,” Unsettled cases advance to rulings by a to comply. And there’s training available to said Dennis Hetzel, executive director of the special master, a lawyer with public records help you.’” Ohio News Media Association and president expertise, with most of those 37 rulings After a string of rulings favoring public of the Ohio Coalition for Open Government. ordering public officials to turn over records access to governmental records and Ohioans can obtain a wide array of they refused to release. Only three of those meetings, the Ohio Supreme Court delivered documents under public records laws at little rulings have been taken to an appellate court. a 4-3 decision in December that Hetzel fears or no cost. But getting records depends on “We are gratified by the fact that could prompt law enforcement agencies to the mind-set, cooperation and interpretation parties almost always come to us with the more frequently deny requests for records. of the law by the public officials who willingness to engage in the mediation In unsuccessful lawsuits by The sometimes mistakenly think public records process. That’s why you have well over Dispatch and The Cincinnati Enquirer are their records. half of them resolved,” said special master seeking the release of autopsy reports in “I think a lot of the problems are in the Jeffrey Clark. the slaying of eight Rhoden family members execution and interpretation” of Sunshine (Last year), the office of Auditor Dave in Pike County, the court further entrenched laws by officials at the state, municipal, Yost finds that governmental entities still the legal notion that some records with county and other levels of government who need to clean up their act when it comes “investigative value” could be withheld by improperly withhold records, Hetzel said. to public records compliance, although the by police. “That can be whatever the police “The good news is, the appeals process number of citations issued for violations says it is. Everything can have investigative is equaling or exceeding our expectations. dropped by 22 percent last year. Thirty-two of value,” Hetzel said.. 9 OCOG Open Government Report Winter/Spring 2019 Issue

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

Medicaid — the tax-funded health violated Ohio’s Open Meetings Act when insurance program covering 3 million deciding to order repayments from the poor and disabled residents — contracts now-closed e-school. with five private managed care plans to In a major decision last week, the high oversee benefits. The plans have hired court ruled 4-2 that the Department of two PBMs, CVS Caremark and OptumRX, Education was permitted under Ohio law to decide which medications are covered, to utilize log-in duration data to determine negotiate drug prices and rebates with student enrollment that is the basis for Gov. DeWine wants more manufacturers, and set reimbursement state funding. The department had ordered transparency and a crackdown rates to pharmacists who fill prescriptions. ECOT to repay the state $80 million for on pharmacy middlemen, Separately, new Ohio House Speaker students who failed to reach the 920 hours Larry Householder said lawmakers will of minimum educational engagement managed-care groups closely scrutinize both managed care required by the state. From The Columbus Dispatch organizations and pharmacy benefit The Electronic Classroom of Tomorrow managers. also had filed a lawsuit arguing that the Frustrated by the ongoing “rip-off” of “I can tell you that I’m always going to Board of Education met illegally while Ohio taxpayers, Gov. Mike DeWine ordered be very, very concerned that tax dollars deciding whether to formally order the a crackdown on Medicaid managed care are spent the way they are supposed to be repayment of taxpayer funds. The Franklin plans and the pharmacy benefit managers spent. And I can tell that I’m very concerned County Court of Appeals ruled against the they hire to oversee prescription drugs. about MCOs, and I’m very concerned school in February. DeWine directed Medicaid Director about PBMs,” the Glenford Republican told The court on (August 15) ruled 4-1 Maureen Corcoran to rebid the managed Statehouse reporters. against accepting an appeal of that care contracts and also ordered Medicaid “I think that’s something that we’re going decision, which now stands. Justice and other state agencies to provide any to look at hard ... at the way those dollars Sharon Kennedy, who also ruled in ECOT’s pertinent data to Attorney General Dave are allocated back to the systems and favor last week, dissented. Justices Yost for a potential lawsuit against the make sure they’re being done effectively Patrick DeWine and Judith French did not pharmacy middlemen, known as PBMs. and efficiently. I’m worried that there’s participate. “I want to save taxpayer dollars. It’s pretty money being lost in the system.” The legal options for ECOT founder simple. The PBM system we think has ripped A study commissioned by Medicaid last Bill Lager, who made millions operating us off,” DeWine said (February 1). year found PBMs billed taxpayers $223.7 companies that served ECOT, are largely The governor said he wants to make million more for prescription drugs in a exhausted. He still has one lawsuit certain going forward that “we have the year than they reimbursed pharmacies to pending in Franklin County Common Pleas right contract and ... we require openness fill those prescriptions. That 8.8 percent court, challenging the Board of Education’s in regard to this whole PBM process. I difference, known as the price spread, administrative process, arguing the board think the thing the public should find very represents as much as $180 million in has “taken inconsistent positions as to the irritating and very alarming is the secrecy excessive profit kept by CVS Caremark nature of its own actions.” surrounding the PBM process. and Optum Rx, the study found. “We want to shine a light on that.” The report said PBM fees should West Lafayette launches DeWine’s directives come less than a be in the range of 90 cents to $1.90 per month into his term as governor and follows prescription, but found CVS Caremark billed online checkbook with an investigation into the costly practices the state about $5.60 per script while Optum State of Ohio of PBMs he launched last summer while charged $6.50 — three to six times higher. attorney general. His successor, Dave From ThisWeek News Yost, issued this statement: Ohio Supreme Court declines “We are actively looking into the PBM Ohio Treasurer Josh Mandel has business practices and drug pricing. to hear ECOT appeal announced the launch of the Village of Litigation is never my first choice but justice West Lafayette’s online checkbook on From The Columbus Dispatch is. If the state of Ohio claims are supported OhioCheckbook.com. by evidence we have the tools and will In December 2014, Treasurer Mandel The Ohio Supreme Court dealt ECOT aggressively work to recoup the money launched OhioCheckbook.com, which sets another loss in August, refusing to hear its that is owed.” a new national standard for government argument that the state Board of Education transparency and for the first time in Ohio

10 OCOG Open Government Report Winter/Spring 2019 Issue

history puts all state spending information in a contract between the two parties, will thousands of taxpayer dollars on the on the internet. OhioCheckbook.com probably be more, and will equal one- search, the first the university community recently earned Ohio the number one third of the new president’s first-year total learned of any candidate for the job was government transparency ranking in the cash compensation, including their salary when the Board of Trustees announced country for the third year in a row. and any other “monetary inducements” President Beverly Warren had been hired,” The Village of West Lafayette is the accepted as part of the hiring negotiations. faculty wrote in the statement. “Through third village in Coshocton County to post The $179,000 paid at the beginning of the no fault of her own, Warren started as their spending on OhioCheckbook.com. search to Russell Reynolds will be credited president under a cloud of suspicion The Village of West Lafayette’s online against the total fee. because of the secrecy surrounding her checkbook includes over 11,000 individual The university’s search for President hiring.” transactions that represent more than $4 Beverly Warren in 2013 cost Kent State million spent from 2016 to 2018. more than $250,000. Clerk must produce court “I believe the people of Coshocton The contract also states Russell County have a right to know how their tax Reynolds considers its “processes, record, but faces no fine money is being spent, and I applaud local procedures, database, portal, candidate From Ohio Court News leaders here for partnering with my office and search-related documentation and to post the finances on OhioCheckbook. personal data, and all internal electronic The Hamilton County Clerk of Courts com,” said Treasurer Mandel. “By posting and written correspondence to be must respond to one of three records local government spending online, we are confidential, proprietary information, and requests a state prison inmate accused empowering taxpayers across Ohio to hold trade secrets.” the clerk of failing to provide. However, the public officials accountable.” Among other terms and conditions, inmate is not entitled to financial damages “The Village of West Lafayette is proud the university agreed to provide the firm from the office for the lack of response to to partner with the State Treasurer’s Office an opportunity to deny any public records the request, the Ohio Supreme Court ruled on the OhioCheckbook.com transparency requests regarding the presidential search. (November 28). initiative,” said Amy Bourne, Fiscal Officer, If the firm claims trade secrets, the contract In a per curiam opinion, the Supreme Village of West Lafayette. “We hope our says Russell Reynolds will bear the burden Court ruled that Clerk of Courts Aftab citizens will find the information on our of proving it. Pureval must produce a document from checkbook site to be useful and easy to Lionel Harris’ aggravated murder trial that navigate.” Kent State University occurred around January 1992 or inform For more information or to view your Harris that the document does not exist. local government website, visit the Local journalism faculty call for more Harris maintained that Pureval never Government option on OhioCheckbook. transparency in presidential responded to his public records request com or click on WestLafayette. search process and he was entitled to $1,000 in statutory OhioCheckbook.com. damages. On April 7, 2015 Treasurer Mandel sent From Cleveland.com The Court clarified that while Ohio’s a letter to 18,062 local government and public records act, R.C. 149.43, provides school officials representing 3,962 local A group of Kent State University for damages when a public official does governments throughout the state calling journalism faculty are calling for not respond to a records request, court on them to place their checkbook level data transparency in the search to replace records are governed by the Rules of on OhioCheckbook.com and extending an President Beverly Warren, arguing the Superintendence for the Courts of Ohio, invitation to partner with his office at no current process violates the state’s open which does not have a financial penalty cost to local governments. These local records law. provision. governments include cities, counties, A statement (on December 17), signed Chief Justice Maureen O’Connor townships, schools, library districts and by a group of about 14 faculty from Kent and Justices Sharon L. Kennedy, Judith other special districts. State’s school of communication and L. French, Patrick F. Fischer, R. Patrick journalism, asks for the university to DeWine and Mary DeGenaro joined the release information about the finalists, Kent State to pay at least majority opinion. including relevant documents. When Justice Terrence O’Donnell dissented, $179K for presidential search, Warren was hired, the university kept the stating he would affirm the judgment of contract details ‘trade secrets’ names of the finalists confidential and did the First District Court of Appeals, which not release search documents after she claim from search firm dismissed the case. was named president. From KentWired.com Instead, the university had signed a contract which allowed the search firm Kent State will pay Russell Reynolds conducting the process to decide which Associates, the executive search firm records were released, according to the chosen to find the university’s next Akron Beacon Journal. One member of the president, a $170,000 retainer for its search committee told the newspaper that services, plus a $9,000 administrative fee. the university shredded his notes. The total cost for the search, laid out “Despite spending hundreds of

11 OCOG Open Government Report Winter/Spring 2019 Issue

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

Ohio Supreme Court accepts government operations is vital to the jurisdiction in Open Meetings legitimacy of local governments in Ohio.” The village, however, said there is no Act case statute or case law that spells out how a vote for president pro tempore should be From Gongwer conducted. “In fact, (the law) authorizes a legislative Ohio public records law The Ohio Supreme Court has agreed authority of a municipal corporation to revises code to reflect new to take up a case that could determine if determine its own rules and in this matter, mandate on statutory damages public bodies violate the Open Meetings village council followed its own past Act by utilizing secret ballots. practice of using a contemporaneous vote From Muckrock The court has accepted the appeal of by ballot to elect president pro tempore Patricia Meade, who alleged the Village of to a one-year term,” the village wrote in Before (November 2018), if you won Bratenahl violated the law in 2015 when opposing jurisdiction in the case. your public records lawsuit in Ohio you its council utilized a secret ballot to elect a The village also contends that the would get your records, but not necessarily president pro tempore. secret ballots were not designed to hide win any attorney fees or statutory damages. The election required three rounds of public business. Now, a new revision to the law overrules voting, and the ballots were reviewed only “Contrary to appellant’s argument, the outdated provision. by the village’s law director, according the purpose of the handwritten ballot Hidden deep within the old Ohio to Ms. Meade, who is the publisher of a was not (to) conceal, but rather, to Revised Code, section 149.43(C)(2) community news publication. vote contemporaneously,” it wrote. “A said that only a written request that was In her memorandum in support of contemporaneous vote by handwritten “hand delivered or sent via certified mail jurisdiction, Ms. Meade cites an advisory ballot assures comradeship and precludes to inspect or receive copies of any public opinion from the attorney general’s office the potential public pressure resulting from record” entitled the requester to recover and a 2016 Ohio Supreme Court ruling in hearing the other councilmember’s votes.” statutory damages in court. which it found a private and prearranged discussion of public business by a majority Now, the new Ohio Revised Code, Citizen asks state claims court which took effect November 2 2018, of a public body through email violates the includes electronic submissions as part of state’s open meeting laws. to get records from Goshen the requirement to win those damages. “The OMA expressly declares that it is Township It should be noted that the new to be liberally construed in openness so revisions only apply to statutory damages, as to require public officials to take official From The Times Reporter which set a strong precedent for future action and conduct all deliberations upon Ohioans looking to gain compensation for official business only in open meetings. A citizen has complained to the Ohio any damages in court. Statutory damages In so doing, this court must conclude and Court of Claims that Goshen Township are penalty provisions of the law and are declare that secret-ballot voting violates Fiscal Officer Amanda Spies has not awarded when the court finds that open the OMA,” she wrote. supplied public records she requested records laws were violated. Both the trial court and the Eight District more than four months ago. However, attorney fees may still be won Court of Appeals sided with the village in “I feel that I have given Fiscal Officer in court, but ultimately it’s up to the judge the case. Spies ample time to fulfill my public to decide that. Per the new code, there are Ms. Meade said the appellate court records request,” Darissa Lute wrote in her three determinations a judge will account ruling “created a standard that does not complaint. “She has continued to make for that may warrant someone to win their advance the purposes and goals of the excuses and drag her feet on my request. attorney fees. Those determinations being, OMA, but directly undermines them.” “This was a simple request, which if a records officer failed to respond to a The Ohio Coalition for Open Government should have been easily fulfilled in a timely request during the allotted timeline, if a struck a similar tone in its amicus brief manner. We are now (past) 120 days and records officer failed to let the requester supporting jurisdiction in the case. I still have not received the records that I view the records during the allotted “If permitted to stand, the decision below requested and paid for.” timeline, or if a records officer acted in bad will allow local governments to effectively Lute asked for lists of payments and operate in secret, impairing the public’s ability receipts, budgets, appropriations and faith. to hold their representatives accountable,” monthly reconciliations. She also sought the group wrote. “Public knowledge of written records of meetings of the three-

12 OCOG Open Government Report Winter/Spring 2019 Issue member board of township trustees, against, as did a private attorney for executive director. “Courtroom decision copies of the fiscal officer’s bond, and the Councilman P.G. Sittenfeld. Never before made with a conflict of interest can have a hours of accredited training she had taken. have such limited conversations among dramatic impact on people’s lives. We need The records requested on June 6 are from Cincinnati city officials been made public. to establish stronger recusal standards so years 2016, 2017 and 2018. “Elected officials, when you get elected that judges are insulated from the influence Lute, fiscal officer for the village of Port to an office, I think some think they work of wealthy donors and so that Ohioans can Washington, was among the candidates who for themselves,” said Hamilton County feel confident in the impartiality of judicial opposed Spies for the position of Goshen Common Pleas Court Judge Robert decisions.” Township fiscal officer in the 2015 election. Ruehlman. “They work for the people. To read the full report, go to https:// Spies contends she has given Lute the Although some (of the texts) might be www.commoncause.org/ohio/resource/ records she requested. embarrassing, they should be released.” can-money-buy-justice-contributions-to- At that, Ruehlman said the limited text ohio-supreme-court-candidates-2018/ Court official finds in favor of conversations should be given to attorney Brian Shrive, who is suing five members Enquirer sues Cincinnati The Dispatch over Powell police of council on behalf of citizen Mark Miller, in Zach Smith records case alleging the members held public meetings over delayed open records via text. responses From The Dispatch Those members, P.G. Sittenfeld, Chris Seelbach, Greg Landsman, Tamaya From The Cincinnati Enquirer Powell police provided The Dispatch Dennard and Wendell Young admitted with records of 2015 domestic-violence Friday the group conversations happened The Cincinnati Enquirer on (October 5) complaints against former Ohio State and released them to Shrive and the sued the city of Cincinnati in Ohio’s Court assistant football coach Zach Smith after a Enquirer. But they did not release any texts of Claims for access to public records in special master for the Ohio Court of Claims between fewer than five members. seven different cases involving delays or found (October 23) that the records were incomplete records. improperly withheld. Common Cause Ohio calls The disputes involve several different Police Chief Gary Vest said the city agencies and include at least one department didn’t plan to appeal the for more transparency and request that has not been filled for nearly findings in the 40-page report. improved recusal standards 18 months. Special master Jeffrey W. Clark found In several of the cases, repeated that the police department failed to comply From Common Cause Ohio requests were made for the records over with Ohio public records law in withholding the course of several months. numerous documents, images and audio On October 1, Common Cause Ohio And while declining to fill the requests, and video recordings from The Dispatch. released a study examining campaign the city never cited any exemptions to the “We’re pleased to see the court rule in contributions to the candidates for the Ohio records law and never provided updates favor of openness by upholding the public Supreme Court and called for the Ohio on the process. records laws,” said Dispatch Editor Alan Supreme Court to strengthen recusal rules “It’s unfortunate we have been forced to D. Miller. “And we are eager to see Powell so that judges step away, rather than hear take legal action against the city to obtain officials turn over the records they should the cases of their campaign contributors. public records, but we will always fight have made public months ago.” “The idea that judges should not be able for government transparency,” Enquirer Clark agreed with The Dispatch that to hear the cases of campaign contributors Executive Editor Beryl Love said. “Other while the law allows specific information is such common sense that many people municipalities we cover fulfill these types of that identifies uncharged suspects to be assume it is already the case,” said requests in a timely manner, so it’s hard to redacted, entire records cannot be withheld Catherine Turcer, Common Cause Ohio’s understand why the city of Cincinnati has under that exception. executive director. “Courtroom decision let these requests drag on for so long.” made with a conflict of interest can have a The Enquirer filed in the claims court Judge: More of Cincinnati City dramatic impact on people’s lives. We need under Ohio’s relatively new system designed to establish stronger recusal standards so Council’s secret texts must be to streamline open records disputes. that judges are insulated from the influence The cases now go to immediate released of wealthy donors and so that Ohioans can mediation as a way to avoid further legal feel confident in the impartiality of judicial actions. But The Enquirer still reserves the From The Cincinnati Enquirer decisions.” right to take further legal action if mediation Together, the candidates for justice is unsuccessful, Enquirer lawyer Jack Secret texts between a majority of of the Ohio Supreme Court raised nearly Greiner said. Cincinnati City Council were released $900,000 from January of this year through “The Enquirer has been extremely (October 19) but a judge said a few the month of August. patient with these requests. At this point, days later all texts relevant to those “The idea that judges should not be able we think it appropriate to ask the Court of conversations – even if they’re just between to hear the cases of campaign contributors Claims to intervene,” Greiner said. two members – must be released. is such common sense that many people A spokesman for the city administration It was a bombshell decision that assume it is already the case,” said declined to comment, saying officials attorneys representing the city fought Catherine Turcer, Common Cause Ohio’s needed to review the lawsuits.

13 OCOG Open Government Report Winter/Spring 2019 Issue

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

August, cancelling public meetings and council now records them, even after the meeting privately in smaller groups. “home-rule” charter withstood a Sunshine Montgomery County commissioners law challenge and appeal that the Ohio created the Justice Advisory Committee Supreme Court has declined to hear. in 2017 to provide a report including Arguing that the city already has a recommendations for improvements to jail “boatload of transparency,” CRC Chairman operations and facilities. The committee Jack Newman questioned whether Ohio State football probe hired CGL Companies of Lexington, Ky., Rautenberg’s proposal needed to be didn’t attempt to recover to assess operations at the jail and report embedded in the charter. back to the group. “What conspiracies have succeeded deleted texts Some of CGL’s findings became because of the system we have?” Newman public during committee meetings held in asked. From The Wall Street Journal July and August at the downtown Dayton Metro Library. In presentations made to the The day Ohio State football coach Canton Repository uses public group, the consultants noted inadequate Urban Meyer was placed on administrative staffing and poor facility design, and said records to determine who paid leave over his handling of abuse allegations changes were needed in some operational for new Hall of Fame stadium against a longtime assistant, he asked a policies, including when and how to use colleague how to delete old text messages force or put an inmate in a restraint chair. From Ohio.com from his university mobile phone, outside But the co-chairs of the committee, investigators hired by the university said in Rabbi Bernard Barsky and Dr. Gary Throughout its reconstruction, confusion a report released last month. LeRoy, said they became frustrated by has circulated about how Tom Benson Hall Yet the legal team investigating Mr. news reports following those meetings, of Fame Stadium was paid for — mostly, Meyer’s conduct, led by former Securities saying the information presented by CGL about how much public money helped to and Exchange Commission chairwoman consultants — while critical of some jail finance the nearly $139 million project. Mary Jo White, decided not to send operations and policies — was not a The answer: $15 million. Mr. Meyer’s phone to a forensics lab finished study. The rest of the stadium was paid through to determine if he actually destroyed private donations and loans, according to evidence, according to two people familiar financial documents The Canton Repository with the matter. Cleveland Heights Charter obtained through public records requests. … Jack Greiner, a Cincinnati-based Review panel nixes Sunshine Comparatively, most football stadiums lawyer who specializes in media law, Law proposal built in the past decade have relied on at says Ohio State’s records-retention policy least 25 percent funding in public dollars, requires saving correspondence that isn’t From The Plain Dealer usually far higher percentages. transitory–not including, for instance, a text Budget documents prepared by message saying you’ll be home late–for at Unable to concur on a “prescriptive” or developers and filed with the Stark County least one year. “aspirational” approach to open government, Port Authority detail how much the stadium “A blanket practice of deleting texts the Charter Review Commission has set cost, where money came from and how violates the records-retention policy on its aside a proposal to add a “Sunshine Law” costs changed during construction. They face, which therefore constitutes a violation provision to the city’s home-rule constitution. show the financing plan largely relied on of the [state] statute,” Mr. Greiner said. Introducing her revised open meetings equity, loans and naming rights — not on provision on Aug. 16, CRC member Carla public support. Rautenberg noted that the charter, adopted Benson Stadium was dedicated last Work of Montgomery County in 1921, has been referred to as the “DNA” August, but some work remains. The east Jail oversight committee of the city. end zone needs to be built, estimated to “That’s why I think it’s so important to cost $8 million, as does the permanent shielded from the public have the Sunshine Law in the charter,” scoreboard, which will be part of the Rautenberg said of draft language facade of another building envisioned for From The Dayton Daily News proposing that the city “meet and exceed” the Village. state requirements for open meetings that The stadium is the most visible The work of a citizen committee date back to the post-Watergate era. component of the nearly $1 billion Johnson created to review operations at the This would have included keeping Controls Hall of Fame Village planned for Montgomery County Jail has kept its minutes of all “committee-of-the-whole” the campus around the Pro Football Hall work shielded from the public since meetings, although it was noted that of Fame. 14 OCOG Open Government Report Winter/Spring 2019 Issue

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

years after we filed this suit, the scourge New York unveils freedom of of opioid addiction has grown worse, and information website National the questions have grown about Purdue’s practices in marketing OxyContin. It is From Government Technology vital that that we all learn as much as possible about the culpability of Purdue, Gov. Andrew Cuomo unveiled a new News and the consequences of the company’s website that he says will make it easier decisions on the health of Americans.” for the public and the press to access records from various state entities under New York’s Freedom of Information Law. New bill would finally tear The website, called Open Foil NY, down federal judiciary’s offers a centralized online location to file ‘ridiculous’ paywall FOIL requests with 59 state agencies and public authorities and was lauded From Ars Technica by Cuomo as offering, for the first time, a uniform method to submit requests for Judicial records are public documents government records through a single that are supposed to be freely available website. Purdue’s secret OxyContin to the public. But for two decades, online In addition, Cuomo said the system will papers should be released, access has been hobbled by a paywall be the first of its kind in the nation that will appeals court rules on the judiciary’s website, called PACER provide an open-access records request (Public Access to Court Electronic “web form” that allows the requester to From STAT News Records), which charges as much as 10 select multiple state agencies for a single cents per page. Now Rep. Doug Collins records request. A Kentucky appeals court on (R-Ga.) has introduced legislation that (December 14) upheld a judge’s ruling would require that the courts make ordering the release of secret records PACER documents available for about Purdue Pharma’s marketing of the download free of charge. powerful prescription opioid OxyContin, The PACER system has been on which has been blamed for helping to the Web since the late 1990s. To avoid seed today’s opioid addiction epidemic. using taxpayer funds to develop the The records under seal include a system, Congress authorized the courts deposition of Richard Sackler, a former to charge users for it instead. Given the president of Purdue and a member of plunging cost of bandwidth and storage, the family that founded and controls the you might have expected these fees to privately held Connecticut company. decline over time. Instead, the judiciary Other records include marketing has actually raised fees over time—from strategies and internal emails about 7 cents per page in 1998 to 10 cents per them; documents concerning internal page today. Even search results incur analyses of clinical trials; settlement fees. The result has been a massive communications from an earlier criminal windfall for the judiciary—$150 million in case regarding the marketing of 2016 alone. OxyContin; and information regarding Critics like the legal scholar Stephen how sales representatives marketed the Schultze point out that this is not what drug. Congress had in mind. In 2002, Congress The unanimous opinion by a three- required that the courts collect fees “only judge panel is a victory for STAT, which to the extent necessary” to fund the filed a motion more than two years ago to system. It obviously doesn’t cost $150 unseal the records — which were stored million per year to run a website with a in a courthouse in a rural county hit hard bunch of PDFs on it. Despite that, federal by overdose deaths. STAT won a lower- courts have used PACER revenues as a court order in May 2016 to release the slush fund to finance other court activities. documents, but after Purdue appealed, For example, one judge bragged at a the judge stayed that order. 2010 conference about using PACER “We’re tremendously encouraged funds to install flatscreen monitors and by this ruling,” said Rick Berke, the state-of-the-art sound systems in court executive editor of STAT. “More than two rooms.

15 Ohio Coalition for Open Government

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

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

OCOG needs your support!

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

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

Join OCOG

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

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

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