Statewide Audit: Records Granted Only Half The Time

Ohio Coalition for Open Government
Open Records Report: Special Edition
Spring/Summer 2004 • Published by The Ohio Newspapers Foundation
Statewide Audit: Records Granted Only Half The Time
Newspapers across Ohio recently published results of the public records access
audit conducted in all of Ohio’s 88 counties. Tom Gaumer and Tom O’Hara, both
of The Plain Dealer, Cleveland, served as
project coordinators for the audit, which involved inspecting the same six records at
public offices. The records sought included:
county minutes, executive expense report, police chief pay, police incident reports, superintendent compensation and school
treasurer phone bill.
There were more than 90
people involved in the
project, representing 43
newspapers, two radio stations,
the Associated Press, the University of Dayton and Ohio University.
Auditors rated the offices based on access to the document when requested. Request for documents fell into three main categories: granted, granted conditionally/partially and denied. Each category had specific conditions that described requests for
records, such as timeliness and reasons for
denial. Overall, 52.7% of the total records
sought were granted either same day or next
day.
The Ohio Coalition for Open Government
received a general grant to offset costs of
the audit from the National Freedom of Information Coalition (NFOIC). This grant
helped to cover the cost of training sessions
for auditors at five different sites, led by
Gaumer. Preparation for the audit began last
December.
Specifics of the audit:
Of the 528 possible responses, 37 were
declared not applicable because the record
didn’t exist or provided inconclusive results
because the auditor was misrepresented in
some way (i.e. recognized as a member of
the news media).
Auditors were able to inspect 246 records
of the 491 valid responses (50.1%) on the
day of the request and 13 more (2.6%) by
the next day.
Auditors inspected 85 more records
(17.1%) after complying with one or more
preconditions not provided by the law (i.e.
written request or proof of identity).
They were denied record access nearly a
third of the time (30.2%). Determining
whether access was granted with or without conditions was based on auditor experience.
Ohio’s open records law states,
(except where explicitly exempted) “…all public
records shall be promptly
prepared and made available for inspection to any person
at all reasonable times during
regular business hours.” Keeping
in mind that the law sets no prerequisites for obtaining records, most auditors reported the public officials audited
pressed them for more information.
During training, auditors learned to respond to these questions by asking if they
were required to answer as a condition for
obtaining the record. However, in documenting their experiences, many said that
public officials often appeared to ask questions in an effort to help, not hinder the process. In other cases, demand for names
came from social etiquette issues.
Such questioning was distinguished from
more serious violations of the open-records
law. For example, insisting on the auditor’s
name wasn’t considered an unlawful precondition unless the public official made a
show of recording it in writing. Because of
this, requiring auditors to sign for receipts
for paid copies was not considered a problem.
The timeliness standard for receiving
records was liberal. Results were compiled
for access to records granted both the day
of the request and by the end of the following business day. Statements of “we’re too
busy today, come back tomorrow” were
marked denied.
Reasons for denial of records fell into the
following categories:
• Officials claimed in 4.1% of the cases
that the document claimed was not a public record
• About 15.9% of the time auditors were
denied records in a timely manner because
of delays caused by policies that violate the
law (i.e. routing requests for documents
through lawyers or setting long waiting
periods to respond to other procedural barriers).
• Personnel were unavailable or too busy
to fulfill records requests 10.2% of the time.
Auditors obtained copies of records in
nearly 90% of the 343 cases where access
was granted -- including conditionally. They
were charged for copies in less than a third
of those instances.
Special Edition
This special edition documents the
results of a statewide public
records audit conducted in April
2004 by The Ohio Coalition for
Open Government. These articles
were written by cooperating newspapers and distributed by the Associated Press for publication by
member newspapers in June.
In this issue...
Public Records Offices Score
Poorly
- p. 2
Attribute Poor Audit Results
To Lack Of Training
- p. 4
Police Unclear On Public’s
Right To Records
- p. 5
Government Officials Speak
Out On Audit Results - p. 7
OCOG Open Records Report
Spring/Summer 2004 Issue
Public Records Offices Score Poorly
Ohio Coalition for
Open Government
1335 Dublin Rd., Suite 216-B
Columbus, Ohio 43215
Phone : (614) 486-6677
OCOG TRUSTEES
David Greenfield, Chair
The Repository
Canton
James Crutchfield
Akron Beacon Journal
Michael Curtin
Columbus Dispatch
Thomas Hodson
E.W. Scripps School of Journalism
Ohio University, Athens
Christine Merritt
Ohio Association of Broadcasters
Columbus
Ron Royhab
The Blade
Toledo
PRESIDENT
Frank Deaner
Ohio Newspaper Association
Columbus
COUNSEL
David Marburger
Baker & Hostetler
Cleveland
NEWSLETTER STAFF
Rick Markus
Ohio Newspaper Association
Columbus
This newsletter is published twice
yearly for the Ohio Coalition for Open
Government. OCOG is a tax-exempt
charitable corporation affiliated with
the Ohio Newspapers Foundation.
Page 2
By Andrew Welsh-Huggins
Associated Press
Joanne Huist Smith walked into the
Eaton Police Department in southwestern Ohio and asked to see the most recent police reports. The record clerk
turned her down.
"He said, 'It's just too much of a headache. There are too many,'" said Smith, a
Dayton Daily News reporter who helped
conduct a statewide survey on the availability of public records in Ohio.
Public employees asked to provide
common records on an unconditional and
timely basis followed Ohio law only
about half the time, according to results
of the survey conducted on April 21, although some auditors sought records near
that date.
Government officials and employees
regularly questioned the need for the
records, asked for requests in writing and
demanded to know the name of the person who wanted the record, all in violation of Ohio law.
"There are still many government agencies and staff who think that they own
public records, and that they can deliver
those records to the public and press at
their convenience. That's simply not the
way it's supposed to work," said David
Greenfield, president of Copley Ohio
Newspapers and chairman of the Ohio
Coalition for Open Government, which
sponsored the audit.
Ohio's open records law is often seen
as a tool available only to reporters looking for information about public officials
or agencies.
But the law is meant to help anyone gain
access to certain information, including
reports about crime, house sales and taxpayer dollars being spent by schools.
Failure to follow the law carries no penalties, though a court can award attorney's
fees if a person is successful in suing for
records.
Ohio's results are similar to audits of
public records in several other states and
reflect diminishing access to records, especially since the Sept. 11 terrorist attacks, said Lucy Dalglish, executive director of the Virginia-based Reporters
(continued on p. 10)
Committee Initiated Audit Last Fall
By Tom Gaumer
The Plain Dealer, Cleveland
Work on an audit of Ohio's public
records started when a committee of the
Ohio Coalition for Open Government decided it wanted to gauge
access to public records.
The Coalition last fall
appointed Tom O'Hara,
managing editor of The
Plain Dealer, Cleveland, and Tom Gaumer,
editor of computer-assisted reporting for the
O’Hara
Plain Dealer, to lead the effort. Auditors
were recruited through the Ohio Newspaper Association, a trade organization
established in 1933 that represents 83
daily and 163 weekly newspapers.
The committee looked for auditors who
would not be recognized, so as to reflect
the experience a citizen would have seeking a public record.
The committee decided to seek records
that would be available in counties of all
sizes. Three media lawyers agreed the
records being sought were public. The
committee wanted to measure access to
public records in Ohio after seeing the
results of surveys in
other states.
Gaumer in March conducted nearly a dozen
briefing sessions around
the state to ensure auditors acted consistently.
The survey was done
Gaumer
April 21, although some
auditors sought records near that date.
Results were entered on a Website created by The Columbus Dispatch. David
Knox, computer-assisted reporting manager of The Beacon Journal, Akron, compiled, clarified and analyzed the information.
Survey results were adjusted for varying factors, including whether the auditor was recognized as being a journalist.
OCOG Open Records Report
Spring/Summer 2004 Issue
Crosstab Of Record Sought By Count Of Outcome
Counts of Results
Granted
Record sought
County minutes
Executive expense report
Police chief pay
Police incident reports
Superintendent compensation
School treasurer phone bill
Overall:
Denied
Personnel
Granted
unavailable/ Not a public
By
conditionally/
record
Total n/a
Same day Next day Total
partially Procedure too busy
70
33
53
50
19
21
246
0
1
1
2
5
4
13
70
34
54
52
24
25
259
10
13
14
11
19
17
84
0
9
9
10
23
27
78
0
8
8
3
16
15
50
7
0
0
10
2
1
20
87
64
85
86
84
85
491
1
24
3
2
4
3
Percent of Total
Granted
Same day Next day
County minutes
Executive expense report
Police chief pay
Police incident reports
Superintendent compensation
School treasurer phone bill
Overall:
80.5%
51.6%
62.4%
58.1%
22.6%
24.7%
50.1%
0%
1.6%
1.2%
2.3%
6.0%
4.7%
2.6%
Denied
Total
80.5%
53.1%
63.5%
60.5%
28.6%
29.4%
52.7%
Personnel
Granted
unavailable/ Not a public
conditionally/
By
partially
Procedure too busy
record Total
11.5%
20.3%
16.5%
12.8%
22.6%
20.0%
17.1%
0%
14.1%
10.6%
11.6%
27.4%
31.8%
15.9%
0%
12.5%
9.4%
3.5%
19.0%
17.6%
10.2%
8.0%
0%
0%
11.6%
2.4%
1.2%
4.1%
100%
100%
100%
100%
100%
100%
100%
Online Presence Of Public Records On The Rise
By Kaye Spector
The Plain Dealer, Cleveland
Twenty years ago, Betsie Norris' search
to find her birth parents in Wisconsin
through paper records took eight months.
She likely could now do it in a day or
so using public records and other documents available on the Internet.
"The Internet certainly has made that
easier," said Norris, executive director of
Adoption Network Cleveland. "It helps
to speed things up."
Adoptees looking for their birth parents,
or anyone else trying to search public
documents, can turn on their computers
to sift through items such as marriage
records, the Social Security Death Index,
military records, professional licenses
and property records.
That easy access to such records has
encouraged more adoptees to search for
their birth parents, Norris said.
Now that many public records are avail-
able on the Internet, more people are tapping their way to them, including those
who before might not have bothered.
That could be a homebuyer visiting a
county tax appraiser's Website to assess
sale prices. A single woman making sure
a romantic prospect isn't a parole violator. Or a mother looking for a licensed day care facility.
The number of government entities putting public records online is on the rise, said Charles
Davis, director of the Freedom
of Information Center at the
University of Missouri.
But the availability of documents online differs from state to state. State agencies are not required by law to have
Websites, resulting in an uneven patchwork of online government records
across the United States.
North Carolina, which recently changed
its laws to deal with privacy issues, is
generally regarded as the most onlineaccess friendly, Davis said.
There, "most everything you can get on
paper you can get electronically," Davis
said.
Many of the Western states with smaller
populations and leaner governments
have less of a Web presence, Davis
said.
The ease of access to some
records has raised privacy, security and political concerns.
Some government officials
have removed documents from the Internet or stripped out identifying information from online records.
The Ohio Department of Rehabilitation
and Correction removed the names, photos and records of former prison inmates
-- an estimated 300,000 people dating to
the late 1970s -- from its Website in
March. Officials said they were respond(continued on p. 11)
Page 3
OCOG Open Records Report
Spring/Summer 2004 Issue
Attribute Poor Audit Results To Lack Of Proper Training
By Shane Hoover
The Repository, Canton
In Cleveland, it takes a week to look at
public records of the mayor's expense
report and about two weeks before copies are available.
Police departments in Dayton and Canton don't have a problem with reporters
looking at incident reports but do with
the public.
The city of Wooster not only wants a
written request for the executive expense
report but who is requesting the information and why.
Ohio’s public records law is clear:
Records are to be made available
"promptly" without inquiries into who
wants the information or a written request. But many public officials aren't
following the law.
A survey by more than 90 media representatives in April found that some public officials don't know the law or ignored
it. Unconditional and prompt access to
routine public records was denied nearly
half of the time, according to results of
the survey conducted in Ohio's 88 counties.
There's no requirement that public officials attend public records law training,
according to the Ohio Attorney General's
Office.
Although officials such as county treasurers and village clerks must have initial training through the Ohio Auditor's
Office and take annual continuing education classes, most of the courses involve budgeting and finance.
Sessions on public records and open
meetings are popular but optional,
auditor's office spokesman Christopher
Slagle said.
Since January, the office has held 17
open government seminars, trained 1,300
officials and distributed 1,000 copies of
its "Open Government Resource Manual"
on compact disc.
"Not only is it out there, but public officials and clerks know about it and
they're asking for it," Slagle said.
The attorney general's office holds
about 100 public records seminars a year,
and groups such as the Ohio Municipal
League, Ohio School Boards Association
Page 4
and Ohio Association of Chiefs of Police offer classes.
"Our general advice leans pretty hard
toward open government," said Ohio
Municipal League Deputy Director John
Mahoney. "But when it comes down to
practice, the council, mayor or law director makes the decision every time."
The theory of the law is often "tweaked"
to fit local circumstances and personalities, said Pattie Doyle, who teaches public records seminars for the attorney
general's office.
"In some small counties the clerk has
been in office for 2,000 years and knows
everything but doesn't want to change,"
Doyle said.
Other times, officials receive bad advice.
The Ohio School Boards Association
advises that districts can create policies
that require someone seeking information
to file a written request, said Rick
Dickinson, the association's general
counsel. Not so, according to the attor-
ney general's office.
The Buckeye Association of School
Administrators says collective bargaining agreements trump the public records
law, according to Donna Boylan, director of the group's government relations
and communications. The Ohio Supreme
Court has ruled that union agreements do
not circumvent the law.
Paul Mastriacovo, former chief counsel for Stark County's prosecutor, has
conducted public records training sessions across the state for public officials
and lawyers for more than a decade.
Officials often try to use common sense,
but the records they want most to stay
private are public, Mastriacovo said.
"Clearly, education is good," he said.
"But you can't make them go to a seminar and you can't make them learn when
they're there."
Sometimes officials violate the law,
believing the applicant won't sue, which
makes it vital that the public enforces its
rights, he said.
Rulings Have Limited Records Access
By Kelli Lecker
The Blade, Toledo
Rulings by the Ohio Supreme Court,
particularly in the last decade, have limited access to documents once available
under the state's public record law, media law experts said.
In some cases, the decisions were made
to protect the privacy of people involved.
But the rulings led to sweeping exceptions in the law, according to David
Marburger, a Cleveland attorney who has
represented the media in public records
cases.
Media law experts say the courts increasingly have narrowly defined the
meaning of public record, so documents
collected by a public agency that used to
be available are now being kept from the
public.
One ruling involved a Columbus Boy
Scout leader who requested a list kept by
the city's Parks and Recreation Department of children who use the city pools,
so he could recruit new members. The
list contained the children's home address
and telephone numbers.
The Supreme Court ruled unanimously
that the information should not be released. Justice Andy Douglas noted that
the information could be posted on the
Internet and lead to the victimization of
the children.
But the ruling could have an effect on
much more than the children's privacy.
It states that personal information about
private citizens used by a public office in
"lawful regulatory policy" is not a public
record.
"The breadth of that is striking. Names
and addresses are pretty basic public information," Marburger said. "Why would
arrest records be public? Why would
names of owners of certain businesses,
of doctors or dentists, why would their
license be public?"
Sometimes judges rule against disclosure because of safety concerns.
"Since we are still in the wake of 9-11,
I haven't seen any inclination yet that it
will lighten up," said Tim Smith, a Kent
(continued on p. 11)
OCOG Open Records Report
Spring/Summer 2004 Issue
Police Departments Unclear On Public’s Right To Records
By Andale Gross
The Beacon Journal, Akron
The people who enforce the laws in
Ohio don't always abide by the law when
it comes to answering public record requests.
In a recent statewide audit conducted
by more than 90 media representatives,
police departments in Ohio's 88 counties
granted requests for incident reports the
same or next day 60% of the time.
The rest of the time, officers gave various reasons for not releasing reports:
They feared hurting their cases, wanted
to protect victims and witnesses or simply longed to control what they considered "their" information. About 12% of
the time, police incorrectly said the incident reports were not public records.
"I really feel sorry for the average citizen who doesn't know how to play the
game," said auditor and Dayton Daily
News reporter Kristin McAllister.
McAllister asked to see Dayton police
reports from the last completed shift, but
she was told the reports were stored in a
computer not accessible to the public.
Emily Weidenhamer, a copy editor with
The Repository, Canton, also could not
gain access to the most recently filed
Canton police reports.
An officer at the information desk told
her he couldn't hand over the records to
"someone just coming off the streets." He
said she could wait a few days and check
back with the police record room.
It wasn't until Weidenhamer revealed
she was a reporter that the officer showed
her the reports. He wouldn't make her
copies, though -- a violation of state law.
Some police departments made reports
readily available.
An Akron Beacon Journal copy editor
was allowed to look through Akron police department reports from the last completed shift at the information desk and
didn't have to identify herself.
A Columbus Dispatch reporter wasn't
offered paper copies by Columbus police but was told she could look up the
information on the Internet.
The reports generally are updated daily
and include most of the information supplied on the written version of the records,
said Columbus police spokeswoman
Sherry Mercurio.
Some departments kept daily logs of
police calls but lacked a file of reports
detailing the incidents that prompted
those calls. A (Cleveland) Plain Dealer
reporter seeking records in Painesville
was given a police log and told it was an
incident report.
Some departments blacked out information on reports they released.
A reporter from The Blade, Toledo,
seeking police reports in Napoleon was
told she would have to wait several hours
to get reports while an officer blacked
out names of juveniles and uncharged
suspects.
The public records law
has no provision that
allows police to withhold those names, said
Akron Beacon Journal attorney
Karen Lefton.
Some departments wouldn't give
records without a written request -- a requirement the law doesn't allow.
A Sandusky Register librarian asking for
reports in Norwalk was told she couldn't
receive them without writing to the police chief.
In Georgetown, a village near Cincinnati, a reporter seeking a police report
was sent to police Chief Buddy Coburn's
office. The reports she was looking for
were in the chief's computer.
"The chief sat at his computer and I
looked over his shoulder," said Jennifer
Edwards, a reporter for The Cincinnati
Enquirer.
As the chief scrolled through the
records, Edwards pointed out what she
was interested in copying.
"Everyone was really nice, but it's a
small town and people don't ask for reports a lot," Edwards said. "I think they
were wanting to know who I was and
what I wanted the records for."
Coburn said he figured Edwards was
testing him.
"This is the first time I've had a reporter
who was that overbearing," Coburn said.
"We try to accommodate anyone who
comes into this place."
When a person requests multiple re-
ports, he said, they are directed to him or
another officer and shown the reports on
computer so no investigative information
is revealed.
"Because there is information in there
that isn't public record, we pull up on the
computer screen what you can see,"
Coburn said. "Statements from victims
are in there. That's not public record."
Coburn said his policy on releasing reports does not make it more difficult to
obtain information.
"People should have access to a certain
amount of information," he said. "They
have a right to that. As a law
enforcement agency, I
think we have a liability
and responsibility to
protect people's information also.
"A person's right to
know is important. However, it
shouldn't supersede your right to privacy."
In some cases, the search for information was expensive. A reporter from The
Vindicator, Youngstown, seeking police
records in Lisbon had to pay $5 for a
single page.
The law states that copying charges
should go only toward covering the cost
of paper and other materials, said Frank
Deaner, president of the Ohio Coalition
for Open Government, a public records
advocacy group that initiated the audit.
"The spirit of the law is such that it
should be material costs," Deaner said.
"A lot of offices get deliberately vague
in how they calculate actual costs and
whether they include portions of salaries
of people responsible for the records."
Departments with higher copying
charges say their fees are reasonable considering all of the materials used and the
staff time needed to comply with record
requests.
"We get enough to cover our costs,"
Coburn said. "We definitely don't make
any money off of it."
Charging $5 also keeps aggressive
record seekers away, he said.
"It stops people from coming in saying
'I want a copy of this. I want a copy of
that,'" Coburn said.
Page 5
OCOG Open Records Report
Spring/Summer 2004 Issue
Records Access Provides Important Service To Ohioans
By Randy Ludlow
The Columbus Dispatch
Public records allow Ohioans to make
educated decisions in many ways every
day about their lifestyles, pocketbooks
and government.
A Cincinnati family searching for its
first house visits the county auditor's
Website to research selling prices in a
neighborhood.
A taxpayer drops by the school
treasurer's office in Cleveland to obtain
district spending figures to determine his
vote on a proposed tax levy on the ballot.
A mother visits the sheriff's office or
goes online to see if any new sex offenders have moved near her children's Columbus school.
When caretakers of public records
strive to be open and provide easy access, they can make a difference in Ohioans' lives while allowing the governed to
keep check on elected officials and public employees.
But when gatekeepers unreasonably or
unlawfully delay and deny such records,
the intention of Ohio's public records law
is obscured.
In a statewide public records audit sponsored by the Ohio Coalition for Open
Government in April, unconditional and
prompt access to routine records was
denied nearly half of the time.
Andy Douglas, who championed open
government as an Ohio Supreme Court
justice from 1985 through 2002, fears
both public officials and courts are lessening in their resolve to honor the public
records law.
"Obviously, life and death are subjects
of the utmost importance. In my judgment, access to public records is a close
second," Douglas said. "Because when
government operates in the closet without the sun shining in, bad things tend to
happen."
Ohioans increasingly have found government reluctant to provide access to
records.
Louie Bauer discovered the Rossford
Police Department in suburban Toledo
contributed $100 to a candidate for mayor
last year, so he asked City Hall for records
Page 6
detailing police spending.
He received information disclosing the
political contribution came from what he
derided as a $9,000 "slush fund" of donated money. He unsuccessfully waited
more than two months for detailed
records.
The former four-term Rossford mayor
wrote his own legal brief and went to the
6th District Ohio Court of Appeals seek-
“When government
operates in the closet
without the sun shining
in, bad things tend to
happen."
- Andy Douglas
Former Ohio Supreme
Court Justice
ing a mandate for the records, which city
officials soon delivered.
"City officials need to understand and
respect the law. There is no penalty for a
public official who does not uphold the
public records law. It then becomes a
game," Bauer said.
Some have gone to court and won attorneys' fees -- the only potential penalty
for violating the law -- while battling for
records.
A woman in the Morrow County town
of Cardington won an Ohio Supreme
Court ruling requiring the central Ohio
village council to keep and release full
minutes of meetings that were little more
than shorthand sentences.
In the Athens County town of Chauncey,
a village council member received an
Ohio Supreme Court ruling ordering the
police chief to release police log books,
time sheets and a report on a theft at her
home.
Some Ohioans are astonished by how
their records requests are greeted and
treated.
Russell Stephan, a Westerville resident
and computer programmer at Ohio State
University, has been fighting for weeks
to obtain complete records on a Gahanna
Police Department officer he encountered
in the Columbus suburb.
Stephan is on the verge of writing his
own court complaint to demand the
records, including an internal affairs investigation underlying a lawsuit against
the city and citizen complaints against the
officer.
"The Public Records Act is one powerful law," he says. "But, they're still fighting me. The people in charge of enforcing the law don't seem to think it applies
to them."
Kristen Treadway, Gahanna's director
of human resources, said the city is not
thwarting Stephan's records request but
needs time for legal research and to remove information that can be legally
withheld.
Stephan had not received the records as
of early June.
"They always have a new excuse. They
never seem to run out of them," he said.
Ultimately, public records can allow
Ohioans to monitor what goes on in their
back yards.
Robert and Rosella Bear did not require
public records to document what their
senses told them. The stench and flies
born of the manure from the millions of
hens at the neighboring Buckeye Egg
megafarm were overpowering.
But the Mount Victory couple still
sorted through thousands of pages of
records at the Ohio Environmental Protection Agency and Ohio Department of
Agriculture to detect violations and determine if state regulators were performing their jobs.
"It was pretty important," said Bear, 68.
"It gave us background information and
allowed us to monitor things. We gave a
lot of the information to our lawyer."
Dozens of neighbors of the Mount Victory farm in Hardin County earlier this
year won an undisclosed amount of damages from former Buckeye Egg owner
Anton Pohlman in the settlement of a lawsuit.
The couple said the public records law
functioned well as officials promptly responded to their requests.
"We, the people, are the government.
We should have access to our records,"
Bear said.
OCOG Open Records Report
Spring/Summer 2004 Issue
Government Officials Speak Out On Poor Audit Results
By Joanne Huist Smith,
Dayton Daily News
Outrage. Disappointment. Concern.
Ohio legislators, state officials and government watchdog groups say the results
of an audit of access to public records in
Ohio merit action.
Auditors requesting information from
local governments, police and school districts recently were denied unconditional
and prompt access to routine records
nearly half of the time.
"It would be my hope that the public
becomes outraged. These are the people's
records. These records were paid for with
tax dollars," said House Judiciary Chairman Scott Oelslager, R-Canton.
The audit by the Ohio Coalition for
Open Government took place April 21,
though some auditors sought records near
that date.
Ohio Attorney General Jim Petro said
that while many county and local governments operate with minimal resources,
their obligation to respond to residents'
requests for public information does not
disappear because of their size or staffing.
"The records requested in this audit are
clearly public in nature and, when available, should have been provided in a
timely manner," Petro said. "I am a firm
believer that our democracy thrives, in
part, because of the openness of government."
The records sought included minutes
from the most recent county commissioners' meeting. In each county seat, auditors asked for the mayor's or city council
president's expense report, the school
superintendent's and police chief's salaries and the school treasurer's most recent telephone bill. Auditors also asked
for police incident reports from the most
recent shift available and to get one copy.
In 4% of the 491 requests, local government or school officials claimed the
document sought was not a public record.
Auditors were denied the records in a
timely manner almost 16% of the time.
"These results are pathetic, especially
when the records requested are non-controversial, definitely open public
records," Oelslager said.
Oelslager, an advocate for open government, worked with Common Cause of
Ohio in 1993 to develop legislation expanding the state's open records law. He
wanted to make it easier and less costly
for Ohio residents to obtain public
records.
The bill neared passage but died in the
Senate after interest groups and former
Gov. George Voinovich's administration
expressed concerns about the cost of
implementing the changes and the "undue burden" they could place on state
agencies.
"All we can do is keep the efforts up,"
Oelslager said. "A key to our democracy
is the public's right to be informed."
State Rep. Jon Husted, R-Kettering, said
the audit results were disappointing but
not surprising. Like the OCOG auditors,
Husted said he does not identify himself
when seeking public records. He tries to
experience the request process the same
as other taxpayers.
"We all need to remember we do work
for the public and the things we work on
are public information," Husted said.
Some public employees are afraid their
bosses will disapprove of them giving out
public information, he said. Others believe that if they don't respond to the initial request, the person seeking information will just go away, Husted said.
"Everybody needs to do a better job of
informing front-line staff in respect to
what the law is," he said.
Republican state Sen. Jeff Jacobson of
Dayton said the problem with Ohio's current public records' law is that it too often comes down to "one person trying to
enforce the law against an entire bureaucracy saying 'no.'"
"You can write all the laws you want,
but if you're not the one wanting the information you don't know how the law is
being carried out," he said. "We need to
ask what, if any, tools people need to do
that, that they don't have now?"
Dwight Crum, spokesman for Republican House Speaker Larry Householder,
said the audit results were unacceptable.
"We want to review the report and talk
to local government groups about the
findings," Crum said.
Democratic House Minority Leader
Chris Redfern said organizations such as
the Ohio Municipal League and the
County Commissioners Association of
Ohio need to better educate their members on the law.
Catherine Turcer, legislative liaison for
Ohio Citizen Action -- the state's largest
environmental organization -- said the
audit findings were better than she would
have expected. She said the Franklin
County Board of Elections told her in
March 2003 that a request for campaign
contributions to appeals court judges
from a 2002 election would have to wait
six weeks, until after the May primary.
"I was appalled, six weeks," Turcer said.
"This was not a complicated report. It
wasn't available on a Website. It wasn't
available anyplace else."
Public Notice Web Sites
Appeals, county and municipal courts
in Ohio: www.sconet.state.oh.us
Prison inmates: www.drc.state.oh.us/
cfdocs/inmate/search.htm
State and county offices, and the
documents they handle:
www.publicrecordfinder.com/states/
ohio.html
Family ancestry and family history
records: www.ancestry.com or
www.genealogy.com
Unclaimed funds:
www.unclaimedfundstreasurehunt.ohio.gov
Public schools, including state report
cards and school building reports:
http://ilrc.ode.state.oh.us/
The Ohio General Assembly:
www.legislature.state.oh.us
Missing children, including state-bystate lists: www.missingkids.com
Page 7
OCOG Open Records Report
Spring/Summer 2004 Issue
School Districts’ Grip On Public Records Unreasonably Tight
By Steve Kemme
The Cincinnati Enquirer
A lot of school districts are failing when
it comes to complying with Ohio's public records law.
In a recent statewide audit conducted
by more than 90 media representatives,
more than half of the school districts contacted denied the auditors prompt and
unconditional access to public records.
That's at least twice the denial rate of the
records requests made to city and county
governments and police departments that
were part of the same audit.
Without identifying themselves, auditors asked a school district in each of
Ohio's 88 counties to see any records
showing the total compensation to the
superintendent for the 2002-2003 school
year and the most recent telephone bill
for the main phone in the office of the
school district's treasurer.
Of the 84 school districts where the auditors were not recognized as members
of the news media, 41 districts refused to
provide records of the superintendent's
compensation and 19 granted it conditionally or partially.
Of 85 valid responses to requests for
the treasurer's monthly phone bill, 43 districts denied access and 17 granted it conditionally or partially.
One of the auditors, Mike Tobin of The
Plain Dealer, Cleveland, said he couldn't
even get past the security guard when he
asked for public records from the Cleveland Municipal School District.
"He demanded to know who I was
with," Tobin said. "Then he made a phone
call and, once done, informed me I had
to send a written request to the media
office."
The public records audit was mainly
conducted on April 21 under the sponsorship of the Ohio Coalition for Open
Government.
After asking to see the records, the auditors requested copies.
Ohio's public records law says "all
records shall be promptly prepared and
made available for inspection to any person at all reasonable times during regular business hours." It also requires public offices to provide copies at cost within
Page 8
a reasonable time period.
Those who violate the law could be ordered by a court to release the documents
and pay attorney fees for a person who
files a lawsuit after being denied access
and copies of the records.
Only 19 of 84 school districts granted
access to the superintendent's compensation records on the same day as the request.
The law doesn't require
people to provide names,
affiliations or their
reasons for wanting
access to the public
records. Yet some school
districts refused to grant
auditors access to the
records until they gave
their names and
identified their
employers.
Twenty-one out of 85 school districts
allowed auditors to view the treasurer's
monthly phone bill on the same day it was
requested.
The law doesn't require people to provide names, affiliations or their reasons
for wanting access to the public records.
Yet some school districts refused to grant
auditors access to the records until they
gave their names and identified their
employers.
Bellefontaine City Schools officials
didn't give auditor Rebecca Sullivan of
the Bellefontaine Examiner the
superintendent's compensation information until she provided her name. She said
they told her the treasurer's monthly
phone bill was not a public record and
refused to let her see it.
"It was stated (to me) it was not public
knowledge," Sullivan said. "It was the
concern of the school board."
When Jim Boggan, of The Madison
Press, London, asked to look at a record
with the superintendent's compensation,
a Jonathan Alder School District employee told him two days after his request
that it wouldn't be available for another
three or four days. He also was told he
would have to submit a written request
and was asked why he wanted to see the
record.
"When I declined to tell her and pointed
out that it was public record, she said,
'It's also in our best interests to know why
you want it,'" Boggan said.
A few school boards have policies allowing district staff several days to fulfill a public records request.
Tom Troy of The Blade, Toledo, said
Karen Dameron, treasurer of the
Wauseon Exempted Villages Schools in
northwest Ohio's Fulton County, read him
a school district policy stating that a public records request had to be made five
days in advance.
She said the board adopted the policy
on the advice of NEOLA Inc., a company
based in Stow that is paid to assist school
districts in developing bylaws and policies.
Troy said the office was understaffed
when he made his request and that
Dameron e-mailed him the records the
next day. But he said he found it troubling the district had adopted a policy that
conflicts with the law.
"It's clearly not allowed by the law," he
said. "It wasn't enforced in my case, and
she never told me I would have to wait
that long. But it made me wonder if they
enforce it selectively."
Wauseon School Superintendent Marc
Robinson said the five-day provision is
intended to be the maximum time for providing public records access.
"We are going to make every effort to
provide access as quickly as possible,"
he said.
Rick Dickenson, general counsel for the
Ohio School Boards Association, said he
doesn't believe school districts should
adopt specific waiting periods for public
records access.
"I wouldn't recommend there be an automatic waiting period. A court might not
think that a five-day delay is reasonable
for some records," he said.
OCOG Open Records Report
Spring/Summer 2004 Issue
Ohio Audit Results On Par With Those Of Other States
By Stephen Dyer,
The Beacon Journal, Akron
Requests for records that should be
public are often met with resistance nationwide, especially from police and
school officials.
More than half of states have undergone
public records compliance audits and
those outcomes show Ohio's response is
typical: At least half of agencies or officials don't know or don't appear to care
what the law requires.
Audits similar to Ohio's have found
numerous problems:
An auditor in Oklahoma was followed
by police when he asked for crime reports and police radio logs.
A deputy sheriff in Wisconsin refused
to release arrest records, telling the auditor, "If you were arrested, you wouldn't
want your name released, would you?"
The sheriff's department in Grant
County, Wash., blocked the release of a
list of registered sex offenders, saying it
could not control how it would be used.
In Moriarty, N.M., a schools superintendent asked police to check the license
plate of an auditor who submitted a request for financial records.
The mayor of Anderson, S.C., refused
to release records because the person asking for them was not a city resident.
There have been occasional stories of
helpful officials such as a court clerk in
Taos, N.M., who said it was no problem
because "all of our records are public
information."
Some state audits found perfect compliance among city or county officials.
In Ohio, only Ottawa and Mercer counties had perfect compliance with all six
records requests.
"There's generally a dislike of these
kinds of laws," said Jay Stewart, executive director for the Better Government
Association, a Chicago-based government access group.
But Stewart said the audits can help increase public access to records.
In Indiana, after the state's newspapers
conducted an audit in 1998 -- which
showed widespread violations of the
state's public records law -- Indiana legislators created a public access counselor position.
The counselor, Michael Hurst, takes
public records questions from the public, reporters and agencies. He hears complaints and issues advisory opinions. He
said the largest number of people who
contact him are members of the public
who want to know why they can't get a
record.
If an Indiana public agency doesn't follow the public access counselor's opinion to turn over records, it can be charged
attorneys fees and costs in any subsequent
lawsuit.
"Public agencies are doing a much better job," Hurst said.
Missouri, North Carolina and Maine
reworked their public records laws after
their audits.
Stewart said it helps if record holders
face serious punishment when they refuse
to supply the records.
One Florida county school board member spent seven days in jail for a 1999
misdemeanor conviction of withholding
public records.
Washington state requires agencies that
lose records lawsuits to pay court costs
plus a penalty ranging from $5 to $100
for each day the records were withheld.
Punishments like these can open up
government records, Stewart said.
Charles Davis, who heads the Freedom
of Information Center at the University
of Missouri, said Ohio's roughly 50%
compliance was "very dispiriting and
very typical."
Davis was particularly troubled by
Ohio's paltry score on releasing school
superintendent pay -- a clearly public
record that he said "should be stapled to
the wall in the office."
Fewer than 29% of Ohio's surveyed
school districts released the record within
24 hours.
General Information On Ohio’s Public Records Law
By Tom Breckenbridge
The Plain Dealer, Cleveland
Questions and answers about Ohio's
public records law:
Question: What is a public record?
Answer: Virtually any record kept by
a public office, whether it's paper, computer file, film or any other form.
That means a mountain of information
is available, from the mundane to the
momentous. It ranges from the pay of a
school bus driver to Gov. Bob Taft's travel
expenses.
Such openness is a pillar of a free and
just society, said David Marburger, a lawyer who represents newspapers on public records issues.
"The fact that we know that anybody
can look at pretty much any record without having to justify it gives us a certain
level of confidence that things are running," Marburger said.
Q: Who can request public records?
A: Anyone, of any age. You don't have
to be an Ohio resident.
Q: Are public records readily available?
A: Theoretically, they should be. The
law requires public offices to "promptly"
prepare records for inspection during
regular business hours for free.
The interpretation of "promptly" varies.
Courts hold it to mean that records be
made available without unnecessary delay, Marburger said.
Q: What should I expect when I ask for
a public record?
A: Public agencies are usually protective of their records and officials may not
be well versed in open-records laws.
You might be asked to identify yourself
and state why you are asking for the
records, even though you're not required
to supply such information. You may also
be asked to fill out a request form. Again,
the law does not require that requests be
made in writing.
But Tim Smith, a lawyer and professor
of journalism at Kent State University,
said an explanation will help put a records
clerk at ease.
"The more forthcoming you can be in
stating your purpose, you've got a better
chance of getting what you want
(continued on p. 11)
Page 9
OCOG Open Records Report
Spring/Summer 2004 Issue
Offices Score Poorly
Committee for Freedom of the Press.
"Things have gotten dramatically
worse," Dalglish said. "The shutdown in
access to information that started at the
federal level is being pushed down to the
state level."
Ohio's new concealed weapons law prohibits people from learning who has received a permit. An exception allows the
media to request lists by county.
A bill recently enacted gives state health
officials more power to limit the release
of information about investigations into
public health emergencies. Another pending bill would restrict information available from court records.
Results published in February from a
similar audit in Florida found that 43%
of government agencies violated that
state's open records law. An audit in
Montana last year found that sheriff's
departments denied more than a third of
records requests.
Similar results in Indiana following a
1998 audit led to the creation of a public
access counselor position.
The counselor, attorney Michael Hurst,
mediates disputes between the public and
reporters and government officials, and
issues rulings on formal complaints filed
over problems getting access to records.
Ohio's survey tested the government's
response to requests for records available
under the law. Such information is available to anyone, even if they are not an
Ohio resident.
Survey participants, most of whom were
reporters, went to offices where they
wouldn't be recognized. They did not
volunteer their names or identify themselves as reporters unless asked.
The auditors sought six records, including salaries for school superintendents
and police chiefs, police incident reports
and school treasurer's phone bills.
Of 491 responses considered in the final results, auditors were able to inspect
246 records, or 50%, on the day of the
request. Of those 491, 13 records, or
about 3%, were made available by the
next day. Some responses were not included because auditors were recognized
as members of the media or the records
being sought did not exist.
Page 10
(continued from p. 2)
The state's open records law requires
documents be promptly prepared and
made available at reasonable times during business hours. The project applied
the requirement liberally, giving agencies
credit if they provided the record within
24 hours.
Auditors were sometimes denied access
to records because employees were too
busy or policies required written requests.
On 20 occasions, or 4%, requests were
denied because workers or officials erroneously said a document was not a public record.
Bellefontaine city schools told Rebecca
Sullivan, a reporter for the Bellefontaine
Examiner, that the treasurer's phone bill
was not a record that could be released.
It is.
"She was actually very nice to me, but
it was just pretty obvious they weren't
going to give it me," Sullivan said. Superintendent Larry Anderson said
Sullivan should have received the
records.
"She should have had those and we
probably screwed up -- it wasn't intentional, believe me," Anderson said.
Requests were met with resistance in
numerous municipalities:
In Cleveland, an auditor trying to find
the mayor's executive expense form and
police chief's salary was sent to the
mayor's office, finance department and
law department before learning that it
would take a week to see the information
and up to a month to receive a copy.
In Lisbon in northeast Ohio, an auditor
was charged $5 for a one-page police incident report. The law says public agencies can charge only for the cost of producing the copy.
In Youngstown, the mayor taped the
conversation with the person asking for
a copy of his executive expense report.
Mayor George McKelvey said he did so
only after learning the person was a reporter with The Vindicator, Youngstown.
"It's not only to hold me accountable
for what I say, but I also hold reporters
accountable for reporting accurately what
I say," said McKelvey, who often tapes
reporters' interviews.
He didn't have a problem with the
records' request. "Public records are public. It's that simple," McKelvey said.
Attorney General Jim Petro, the state's
top law enforcement officer, said time and
money constraints are no excuse for denying public documents.
"The records requested in this audit are
clearly public in nature and, when available, should have been provided in a
timely manner," said Petro, a Republican.
Those who asked for superintendents'
pay received the information within 24
hours 28% of the time. In 22% of requests, they received the information after meeting conditions -- such as written
requests -- not required under law. The
information was denied to auditors 48%
of the time.
Wauseon Exempted Villages Schools in
Fulton County cited a school district
policy stating that a public records request had to be made five days in advance.
Hollie Reedy, an attorney with the Ohio
School Boards Association, said such
policies are not enforceable because they
violate the law.
"You can have whatever you want in
your board policy, but if someone doesn't
want to fill out a written request, districts
cannot compel you to do that," she said.
Results were better for receiving police
pay and incident reports, with 64% of
requests for chiefs' salaries granted within
24 hours and 60% for incident reports.
Still, there were problems. A police officer in Morrow County erroneously said
that under state law, he could require the
person seeking the record to file a written request.
Not all officials were suspicious. A
Wilmington clerk immediately pulled the
police chief's salary and cross-checked
to make sure the record was current. She
then made a copy of the record even before one was requested.
A secretary handed Bill Reader, an Ohio
University journalism professor, the
Morgan County commissioners' minutes
without question.
"The minutes were seen as being such
an obvious public record it just didn't
enter her mind not to cooperate," Reader
said.
OCOG Open Records Report
Spring/Summer 2004 Issue
Court Rulings
State University professor and media law
expert. "But it's difficult to maintain that
same edgy feeling that we could be assaulted at any time. It's tough to argue
we're in danger."
In one lawsuit, three Columbus police
officers sued the police department after
their home addresses and other personal
information were released to an attorney
who requested it under the public records
law.
The case went back and forth in federal
and appeals courts until the officers
dropped their complaint. A ruling by the
6th U.S. Circuit Court of Appeals that
said the officers' privacy was a constitutional right set a potential precedence.
"The court essentially set back public
(continued from p. 4)
records access rather significantly," Smith
said.
Many of the rulings that have created
exceptions to the public records law have
come since 1996. Marburger attributed
that to attorneys successfully arguing that
certain documents are not public records.
Other media law attorneys say a public
push for more privacy has made it more
likely judges will rule against releasing
information.
Social Security numbers of public officials were deemed not to be public after
a lawsuit was filed by The Beacon Journal, Akron, in 1994.
Attorneys who specialize in media law
disagree over the impact of an Ohio Supreme Court ruling that does not make
Q&A
promptly," Smith said.
Q: Can I get copies?
A: Yes. Public agencies must supply
copies within a reasonable time period,
under the law.
What is "reasonable" is based on circumstance. If you're asking for a few
pages and the report is available, you
should get copies right away.
If you're asking for a lot of records,
courts have recognized that public agencies need a little more time to prepare
copies, Marburger said.
Public bodies can charge only for the
cost of producing the copy. The Ohio
Attorney General's Office charges 4 cents
a page.
Q: Are some records exempt from the
open-records law?
A: Yes, and they are numerous.
They include taxpayers' records, child
abuse reports, student education records,
state medical board reports, trade secrets,
medical records, adoption records and
records of "privileged" communication
between a lawyer and client, according
to the Ohio attorney general's "The Yellow Book 2004: An Ohio Sunshine Laws
Update," a primer on public records and
public meetings.
Q: What if my records request is turned
down?
court and police records available until a
criminal defendant has been convicted
and their cases are closed.
The ruling came about after defendants
and their attorneys were circumventing
discovery laws and getting information
on their cases through the Ohio public
records law.
The decision closed off court and police documents to the public while cases
are pending, which could include appeals,
according to Fritz Byers, a Toledo attorney who specializes in media law.
"When the statute was passed and for
20 years after, there was nothing in it. It
says everything's public," Byers said.
"Judges started saying, 'I'm not going to
let this come out.'"
(continued from p. 9)
A: You may be dealing with someone
who is not familiar with the law. Ask to
speak with a supervisor and try to find
out what legal authority the agency is citing in refusing your request.
Marburger suggests finding an elected
official who has authority over the
agency.
"They are much more receptive to the
press and public raising a question,"
Marburger said.
Unfortunately, you have few alternatives if your records request is rejected.
Ohio has no administrative appeals pro-
Online
ing to years of complaints from former
inmates who argued the site hurt their
efforts to get jobs and rebuild their lives.
Last fall, Florida, Virginia and California also removed or restricted significant
amounts of court and administrative
agency documents from their state
Websites, according to New Jersey-based
Information Today magazine.
John Soma, a law professor and executive director of the Privacy Center at the
University of Denver, said debates about
privacy will grow as more records become available online.
cess. Neither the state nor the county
prosecutor can enforce compliance or
investigate open records complaints.
By law, your remedy is the courts. If
you win the case, the court may order that
the public agency cover your court costs
and attorney's fees.
Otherwise, the time and expense of
fighting such cases is all yours, to the
chagrin of open records advocates.
Ohio Attorney General's Yellow Book:
h t t p : / / w w w. a g . s t a t e . o h . u s /
online_publications/
2004_yellow_book.pdf.
(continued from p. 3)
"That's why we have to have a meaningful discussion about where you draw
the line," he said. "We need to balance
the right of the public for access (to
records) and somebody's attempt to rebuild, to have a new start."
Still, online access to government
records could be a freeing, profound tool
for citizens, Davis said. And he believes
the Web's potential as a government data
source has yet to be fully realized.
"It could be the most incredibly democratizing thing," Davis said. "But there's a
lot of technological fear and obstinance."
Page 11
OCOG Open Records Report
Spring/Summer 2004 Issue
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