Range War in Ohio Breaks Out Over Public Records Requests

OhioNews Bureau

ONB COLUMBUS: Two days after the Vernal Equinox, when the sun crosses the equator marking the beginning of Spring in the northern hemisphere, it was still cold and overcast in Central Ohio, as nearly two dozen activists representing half as many groups gathered on the tail end of Sunshine Week for a workshop on the basics of Ohio’s Sunshine Laws and how to ask for pubic records.

While this group of activists had visions of filling in record request forms and submitting them to various state agencies dancing in their minds, they may not have known that a small range war was about to break out over public records requests.

Filling out a form or sending an a short email citing Ohio law is easy. But for those on the receiving end of a one-line request, the ensuing work can turn into weeks or months, resulting in another budget burden as staff are assigned to the task in a timely fashion.

PUBLIC RECORDS: THE GOOD, BAD AND UGLY

The Ohio GOP came under intense fire Friday from Ohio Attorney General Marc Dann, who issued a media release blasting them for a “massive public records request” he said resulted in the “waste of tens of thousands of dollars that could have been used to fight consumer fraud, battle violet crime and solve the state’s exploding foreclosure crisis.”

Dann called the GOP-inspired records stunt “overly broad” and an effort to “pervert the purpose of the Sunshine Laws.”

“Because of the investigative nature of the work my office does, we are forced to review each and every document to ensure that it does not contain information that would jeopardize a criminal or civil investigation, compromise a court proceeding, or violate the attorney-client privilege. That means that each e-mail or other type of correspondence…asked for has to be examined by the staff of our public records section, the attorneys involved in cases referenced in the documents, as well as, in some cases, investigators at BCI&I.” [Ohio AG Marc Dann, media release]

Undaunted by Dann's rhetorical thrashing of them for the audacity of asking him to go on such a large fishing expedition, the Ohio GOP turned and fired on Dann, calling him a hypocrite for running a campaign based on access to public records but hemming and hawing on delivering them when he became Attorney General.

The GOP intern who made the massive request of six-month's worth of emails responded to Dann's fireball media release with the same words that each of the workshop attendees would likely say in defense of their request for public records, namely: "I made my request to review records and I complied with the law. I expect him to comply with the law, too. What is he trying to hide."

But in classic tit for tat fashion, the truth embedded in the old political saying of what comes around, goes around was proven when the purveyor of Buckeye State Blog (BSB) issued his own massive public records request to Ohio Auditor Mary Taylor, the lone Republican to win a statewide office in 2006 when Democrats swept to wins in four of the five posts up for grabs that election cycle.

Jerid Kertz of BSB posted his records request, which asks Taylor to produce copies of "emails between Ohio Auditor Mary Taylor and the heads of her Administrative, Legal and Audit divisions."

Both the Ohio GOP and Kertz have used the statement by the Ohio Supreme Court that "The law does not require a motive for access to public records. So regardless of who made the request or why, these officials are not in compliance with the law" to justify their actions.

In yet another example of Ohio bloggers seeking information from public entitites, this post shows that DaytonOS wants Wright State University to cough up some info regarding the award of a $92,000 contract to Turner Effect, which is owned by Lori Turner wife of Congressman Mike Turner.

For those who attended the public records workshop in Columbus, they learned that private companies that do business with public agencies are not necessarily exempt from producing public records. DaytonOS needs to follow the trail of bread crumbs to the Turner Effect.

ONB has made its own public request as well.

Dann said he had to add staffers to comply with the GOP intern's request, so we can only surmise what Taylor will do with Kertz's.

It's too bad the one in 10 Ohioans now using food stamps can't have this work outsourced to them.

PUBIC RECORDS: ACCESS VERSUS EXEMPTIONS

The group included a handful of hearty souls who had traveled to an otherwise deserted building on the northern edge of The Ohio State University in Columbus from as far away as Mt. Vernon in Knox County and Zanesville in Muskingum County, about 35 to the northeast and 50 miles to the east, respectively, to listen to Columbus public-records attorney Fred Gittes, who walked them through the ins and outs of how best to prospect for public information.

Individuals who used their Saturday afternoon to wade through the complexities of Ohio’s Sunshine Law, passed in 2007, identified themselves as being affiliated with a well-established group like the Sierra Club or a group concerned about the homeless. Others said they were supporters of Republican presidential candidate Ron Paul, while a couple said their concern related to jurisdiction issues back home.

A smörgåsbord of reasons for their interest in public records was given by those who attended the public records workshop sponsored and organized by the Ohio Election Justice Campaign. They ranged from declarations as cosmic as no longer wanting to “live in a big lie and learn the truth” to more practical political agendas like wanting to “strip public officials of ‘plausible deniability’” so they could no longer “say they didn’t know what’s going on,” to one individual who said “without sovereignty, we loose our rights” to one who said others needed help because “the legal system is out of control.” One woman said she wanted to learn the “why’s” behind why some of her friends are having difficulties with license plate stickers, car insurance and drivers licenses, troubles she sees as clear examples of harassment by the Ohio Bureau of Motor Vehicles.

Gittes, a member of the Ohio Academy of Trial Lawyers who has taken on numerous high-profile cases over the decades and who personally testified on and contributed to the crafting of Ohio’s updated public records law that became law in 2007, painted a picture of government today as more secretive than it was in the past.

“Overall, there is less ‘sunshine’ and far more secrecy in government today than ten years ago at both the state and federal level. Both the courts and the legislature have been recognizing more and more exceptions to the public records laws." [Attorney Fred Gittes, to OhioNews Bureau]

Since the tragic, surprise attack on America on September 11th, Congress and state legislatures, through the passage of a rapid-reaction bill like the Patriot Act that advocates of civil liberties have decried for infringing on the very liberties of privacy that the founding fathers gave us to defend against unauthorized government search and seizure, have played the terrorism card to keep citizens who seek openness and transparency in government at bay.

Gittes, who has performed his fair share of public records requests since he started practicing law in 1975, said that many elected and appointed officials are using terrorism and identity theft to justify denying the public access to critical information and records without enhancing public safety. It’s “definitely hurting open government,” he said.

Furthermore, by circling the wagons around the public records they do create, Gittes said the quest is further compounded by the “relentless efforts of the corporate world to hide from public view dangerous and dishonest management practices.” He said that by using their financial clout, corporate interests have obtained numerous limitations on access to public records.

“Many communities cannot even discover what chemicals and other agents are being put into the air they breathe and the water they drink now"...because...“corruption and political bossism thrive on secrecy and control of information.

“Protecting and improving access to public records must be a priority if we are to address the many issues confronting Ohio and the nation,” [Attorney Fred Gittes, to OhioNews Bureau]

One big change from Ohio’s reformed public records law, Gittes told his listeners, was the financial costs that requesters could seek if their request goes completely unheeded or the delay is unjustified, in the view of a judge. According to the law, people wrongfully denied records may file a lawsuit and receive up to $1,000 in damages and require legal explanations if a judge determines the public entity has indeed been derelict in its response.

Yet while groups like the Ohio Coalition for Open Government worked hard, in combination with the Ohio Newspaper Association, to make government more response to records requests than ever before because there is now a financial cost to pay by not doing so, some like Dann, a state senator during early deliberations on the bill, say that while the legislature conceded on some points of openness and transparency, it may very well capitulate in the future to other interests who want it to narrow access.

And if access can’t be narrowed, others record watchers like Thomas Hodson, a former judge and director of the E.W. Scripps School of Journalism at Ohio University, made the simple observation that one way to avoid the law is to not create records in the first place. He has chided government, including universities and school boards, for their overblown fear about creating public-records trails and has said that the news media should not be viewed as adversaries from whom records should be kept.

Gittes told his workshop members not to ask for “information” because they wouldn’t get it. Information, he said, is contained in records, and its records, like personnel files or public emails that contain the information that could make or break their quest or a court case.

Telling his listeners what they may not have concluded from what they thought about Ohio Sunshine Laws, Gittes said the Ohio Legislature, as it has done when applying new standards to others, exempts itself from the yoke they've place around someone else's neck.

Although it doesn't pertain to Ohio, this article about Tennessee senators seeking more confidentiality for themselves, makes Gittes' point that lawmakers will try to keep their information in the shadows.

Dann said over the past six months his office has provided Sunshine Law training to more than 10,000 elected officials across the state, and since January, 2007, has made more than 50 presentations on Ohio’s Sunshine Laws to various public agencies throughout Ohio.

SUPREME COURT TAKES CHARGE OF COURT RECORDS

A recent example of the debate over access to public records contained in court documents is seen in recommendations made by a court-appointed commission on what court records the public can access.

The Ohio Supreme Court created the Commission on the Rules of Superintendence for Ohio Courts to use its powers in the Ohio Constitution to decide what is a court record, which ones are public and how they can be accessed and what remedies are available when access is denied instead of letting the legislature make that decision, which it tried to do when it was debated the public records law.

Open record advocates say they fear that while the call for openness may influence the court to not close off access as much as some would want, there’s no guarantee that future justices could make it harder without fear of lawmakers having a say in the changes.

But now that the court has taken control of its defining its records, some voices say arguing with them doesn’t matter, because at the end of the day they, not the legislature, will rule as they see fit.

One key issues is how to handle court records in cyberspace, which may be public today but which might not be later when they are properly closed or expunged but can’t be removed from the Internet.

John Michael Spinelli is a former Ohio Statehouse government and political reporter and business columnist. He now serves as the OhioNews Bureau Chief for ePluribus Media Journal. Find ONB archives here.

If readers have a news tip or story idea about Ohio politics or government, contact the OhioNews Bureau at: ohionews@epluribusmedia.org

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Wonder if any of the presentation materials of the workshop will be put online?

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"I hope we shall crush in its birth the aristocracy of our moneyed corporations which dare already to challenge our government in a trial of strength, and bid defiance to the laws of our country." - Thomas Jefferson