Dear Ohioans, James Madison, the country’s fourth president and one of the primary architects of our Constitution, clearly understood that public trust was critical to the success of the young American Democracy. Transparency and accountability was his focus when he said “A popular government without popular information, or the means of acquiring it, is but a prologue to a farce or a tragedy, or perhaps both.” That principle has been embraced by the Ohio General Assembly, which has enacted both the Ohio Public Records Act and the Open Meetings Act, known collectively as the state’s “Sunshine Laws.” It has also been embraced by the Ohio Supreme Court, which has ruled that public records are the people’s records and that anyone has the right to inspect them. In order to foster the principle of open government, the legislature has given the offices of the Ohio Attorney General and the Ohio Auditor of State the primary responsibility for ensuring that public and elected officials have the training and materials they need to understand and comply with the Sunshine Laws. It is a responsibility that we, as officeholders, take very seriously. As provided by House Bill 9, our offices are providing public records training sessions in addition to this publication. Ohio Sunshine Laws 2008: An Open Government Resource Manual offers valuable guidance to officials and the public about the state’s Sunshine Laws. Furthermore, the Attorney General’s office, as required by House Bill 9, has developed a model public records policy that local governments and institutions may use as a guide in crafting their own procedures for responding to public records requests. It is important to note that while these resources provide a wealth of information about the Public Records and Open Meetings Acts, much of open government law comes from case law or the interpretation of statutes by the courts. For this reason, we strongly encourage you to seek guidance from your legal counsel when you are faced with specific legal questions about these important laws. Thank you for your interest in Ohio’s Sunshine Laws and for working with us to promote an open and accountable government for all Ohioans. Sincerely, Marc E. Dann Mary Taylor, CPA Attorney General Auditor of State Your comments and suggestions are invited 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 and Ohio Auditor of State, Mary Taylor 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, Principal Assistant Attorney General Patricia E. Doyle, Paralegal Robin L. McGuire Rose, Director, Open Government Unit Trisha Balthaser, Paralegal, Open Government Unit Table of Contents Auditor of State Mary Taylor, CPA Ohio Attorney General Marc Dann Ohio Sunshine Laws 2008: An Open Government Resource Manual Page 2 Chapter I: Introduction..................................6 Glossary..........................................................7 Frequently Asked Questions ..........................9 Basic Legal Principles....................................9 Chapter II: The Open Meetings Act ...........12 “Public Body” Defined.................................13 “Meeting” Defined .......................................17 Public Body’s Duties....................................22 Notice......................................................22 Openness.................................................25 Minutes ...................................................25 Public’s Rights .............................................27 Executive Session General Principles...................................28 Permissible Reasons Personnel ...........................................29 Property .............................................29 Court Action......................................30 Collective Bargaining........................30 Confidential Matters..........................30 Security Matters ................................31 County Hospital Trade Secrets..........31 Proper Procedure.....................................32 Restrictions .............................................33 Remedies General Principles...................................34 Injunction................................................34 Mandamus...............................................35 Fines........................................................36 Court Costs and Attorney Fees...............36 Invalidity.................................................37 Chapter III: The Public Records Act..........39 Public Office’s Duties ..................................40 Inspection................................................42 Copies .....................................................43 Requester’s Rights........................................46 “Public Record” Defined..............................48 “Public Office” .......................................48 Auditor of State Mary Taylor, CPA Ohio Attorney General Marc Dann Ohio Sunshine Laws 2008: An Open Government Resource Manual Page 3 “Record” .................................................49 The Request for Records ..............................53 Exceptions to Disclosure General Principles...................................58 Catch-all Exception.................................62 HIPAA............................................65 Medical Records .....................................71 Trial Preparation Records .......................73 Residential and Familial Information .....74 Law Enforcement Investigations ............77 Step 1: Law Enforcement Matter ...78 Step 2: High Probability .................80 Uncharged Suspect....................80 Confidential Source ..................80 Physical Safety..........................81 Techniques or Procedures.........81 Work Product............................82 Infrastructure and Security Records .......84 Other Records .........................................85 Remedies For Denied Access..................................88 For Improper Destruction .......................90 Common Issues Resumes ...............................................92 Personal Privacy...................................93 Personnel Files .....................................95 Social Security Numbers......................96 Electronic Records ...............................97 Contractual Confidentiality..................97 Proper Destruction of Records.............98 Discovery Criminal Discovery...................99 Civil Discovery .........................99 Juvenile Records ................................100 Student Disciplinary Records ............102 Court Records ....................................102 Appendix A: Open Government Statutes Records Management sections ................A-1 Open Meetings sections.........................A-12 Public Records sections.........................A-19 Auditor of State Mary Taylor, CPA Ohio Attorney General Marc Dann Ohio Sunshine Laws 2008: An Open Government Resource Manual Page 4 Appendix B ..................................................B-1 “Catch-all” Exceptions (Ohio) Auditor of State Mary Taylor, CPA Ohio Attorney General Marc Dann Ohio Sunshine Laws 2008: An Open Government Resource Manual Page 5 Ohio’s Open Government 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 Open Government 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 Open Government 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 Ohio Sunshine Laws 2008: An Open Government Resource Manual Page 6 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