E ASTMAN & S MITH L TD . ATTORNEYS AT LAW Established 1844 Ohio Sunshine Laws 101: Franklin County Public Health by René L. Rimelspach 614-564-1443 rlr@eastmansmith.com
Ohio Sunshine Laws 101: Franklin County Public Health December 2 & 10, 2015 Open Meetings Act, R.C. 121.22 Public Records Act, R.C. 149.43 Records Retention, R.C. 149.381
Why are public records important? • Ohio Supreme Court Justice Charles Zimmerman: “The rule in Ohio is that public records are the people’s records, and that the officials in whose custody they happen to be are merely the trustees for the people…”. Patterson v. Ayers , 171 Ohio St. 369 (1960) “Information is the currency of democracy.” Thomas Jefferson
Ohio Sunshine Laws 101 • Open Meetings Act • Public Records Act • Found at R.C. 121.22 • Found at R.C. 149.43 • Not our focus today; but one • Intended to be interpreted of two parts of liberally to facilitate broad governmental openness access by the public to the public’s records • Official actions and deliberations in public, open • Applies to “records kept by sessions, unless an a public office” exception applies • FCPH is a public office
What is a Public Record? R.C. 149.011(G), 3-part definition: any document, device, or item, regardless of physical form or characteristic, including an electronic record; created or received by or coming under the jurisdiction of any public office of the state or its political subdivisions; which serves to document the organization, functions, policies, decisions, procedures, operations, or other activities of the office.
What is a Public Record? A public office is only responsible for its own records A public office is not required to create a record that does not already exist in order to respond to a request If a document or other item does not meet all three parts of the definition of a record, then it is a non-record and is not subject to the public records act
What is a Public Record? Part I • Any document, device, or item, regardless of physical form or characteristic, including an electronic record • Must be in some recorded medium in a fixed form – form does not matter, as long as it can record information • Some examples: paper or electronic documents, videos, maps, photographs, voicemail messages
What is NOT a Public Record? Part I • A public employee’s thoughts • Unrecorded oral communications (i.e., what someone said) • A request for advice given • A request for the public agency’s unwritten policy or interpretation • Records that do not yet exist • Records that are not in a public agency’s possession or control
What is a Public Record? Part II • Created, received by, or coming under the jurisdiction of any public office of the state or its political subdivisions • Need not be currently on-site or in public office’s physical possession • If records are held or created by another person / entity performing public function for a public office, still may be “under jurisdiction of” the public office
What is a Public Record? Part III • Which serves to document the organization, functions, policies, decisions, procedures, operations, or other activities of the office • Junk mail or spam (paper or electronic); some employee personal information kept for administrative purposes (i.e., emergency contacts); personal calendars / appointment books; personal correspondence or personal email addresses
What is a Public Record Common Questions • E-mail: it depends – is it a personal, non-business email, or does it document a function of the office? E-mail is a record format, not a record itself • Notes: it depends – were notes made for the employee’s own convenience, to help recall events? Do other employees have access to the notes? Were the notes used to create official meeting minutes?
What is a Public Record Common Questions • Drafts: usually – but may be addressed through records retention schedules • Computerized databases: maybe – no requirement to create records that don’t exist; however, if computer program can perform search and produce compilation or summary report, then yes
What is a Public Record Is my personal information a public record • State ex rel. Dispatch Printing Co. v. Johnson , 106 Ohio St. 3d 160, 2005-Ohio-4384 • State employee home addresses not public records subject to disclosure • Why? does not document the organization, functions, policies, decisions, procedures, operations, or other activities of the state and its agencies • Limited exceptions – work from home; residency requirement for employment purposes
Exceptions to the Public Records Act: Two Kinds • MUST NOT release • MAY release, but may choose to withhold • sometimes under civil or criminal penalties • Discretionary disclosure • Public office has no choice • Public office is not obligated but to deny request to release records, but may do so without fear of • “records the release of punishment under the law which is prohibited by state or federal law”
Public Records Exceptions • Public entity can’t agree by contract to keep records confidential • FOIA (the federal freedom of information act) does not apply to state or local public entities • Many records are subject to more than one exception – must carefully consider whether records are MUST NOT or MAY NOT disclose • Public entity can be deemed to have waived ability to withhold a record through disclosure
Release of Records Prohibited: Some examples • Medical records that pertain to a patient’s medical history, diagnosis, prognosis, medical condition • Attorney trial preparation records • Confidential law enforcement investigatory records (“CLEIRS”) • Intellectual property records (connected to state universities) / trade secrets • Catch-all provision – some state or federal law validly enacted explicitly prohibits disclosure
Release of Records Prohibited: Some examples • Social Security numbers • Many types of juvenile records • Infrastructure or security records – i.e., records used to protect or maintain the security of a public office • Attorney-client privileged records and attorney work product records
Partial Release May Be Appropriate • Statutory definition of “redaction” – obscuring or deleting any information that is exempt from the duty to permit inspection or copying from an item that is otherwise a record • Public office may redact / withhold only that part of the record subject to an exception • UNLESS, excepted information is so “inextricably intertwined” with entire record that redaction is not possible
How to Make Redactions • A redaction is the legal equivalent to a public records denial • The public office must notify the requestor of any redactions or make redaction plainly visible • The public office must provide the requestor with an explanation, including legal authority, setting forth why information was redacted
Requesting Public Records – Who May Make a Request? • Anyone – the requestor does not need be an Ohio resident, or even a U.S. resident • Requestor does not need to even be a person; a corporation, government entity, or other body may also request records • A requestor does not need to identify themselves – can remain anonymous
Public Records Requests for Commercial Purposes • Unless a specific statute states otherwise, it is irrelevant whether intended use of records is for commercial purposes • However, public office can limit the number of records transmitted by U.S. mail to 10 per month when for commercial purposes • The following are not commercial purposes: reporting or gathering the news; reporting or gathering information to assist citizen oversite of the activities of government; non-profit educational research
Journalists are Special • Several statutes grant “journalists” enhanced access to records – “journalist” is defined broadly • For example, actual residential addresses of civil service employees • However, journalists must make request in writing and sign request; must identify self by name, title, and employer’s name and address; state that disclosure of information sought is in the public interest
Requesting Public Records – Content of Request • The request must be for existing records – cannot make a request for unrecorded information (again, FCPH is under no duty to create a record to respond to a request) • The requestor must identify requested records with “reasonable clarity” – no duty to figure out what requestor wants • Requestor does not have to make request in writing, or use any particular wording
Requesting Public Records – Ambiguous or Overly Broad Request? • An ambiguous request lacks the clarity needed for the public office to ascertain what records the requestor is seeking – request is vague or subject to multiple interpretations • An overly broad request is one that is so inclusive, public office cannot determine what records wouldn’t fall under request – the equivalent to having to open every file and every drawer to find responsive records
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