good news for Ohio citizens in the results of a statewide,
county-by-county public records audit that was conducted by more than 60
Ohio media outlets in April under the auspices of the Ohio Coalition
for Open Government.
But you shouldn’t get too excited. Problems
with open records in Ohio are deeper and more complicated than ever. Let
me explain why.
Why were this year’s results so much better? I
suspect the main reason is greater awareness by government officials –
and it also suggests that, stereotypes to the contrary, local newspapers
continue to keep local officials on their toes. The training of local
officials on the importance and requirements of Ohio’s records laws is
far broader and more consistent than it was in 2004, the last time such
an audit was conducted.
However, keep the results in perspective.
This is all the audit showed: When you request a record from local
government, and there’s no doubt it’s a public record, the chances of
obtaining the record in the correct manner are quite good.
that phrase “no doubt.” Attorneys who are experts on Ohio laws checked
our requests in advance. Records such as meeting minutes, salary
information and expense reports, are unquestionably public records.
problem is this: A string of court decisions and legislative changes
over the past 10 years have closed more records than ever and shifted
the burden of proof strongly against citizens when there is any
In other words, when a government official wants to say
“no,” unless it is 99 percent clear that the record is open, it is
getting harder and harder to win. Even if you do, the Ohio Supreme Court
has taken what legislators made difficult and now made it nearly
impossible to collect attorney fees. This means only the wealthiest can
afford to pursue these cases, giving government a tremendous tactical
advantage. Unlike most states, there is no way to fight a state agency
and the majority of local governmental denials in Ohio without hiring a
lawyer and going to the time and expense of litigation.
the 2012 case, Zidonis v. Columbus State, a wrongful discharge action.
The Supreme Court gave governmental agencies new latitude to claim
records requests are “overly broad.” Today the standard appears to be
that “overly broad” is whatever government says it is.
were told that the Zidonis case involved narrow facts and wouldn’t apply
to many situations, it is popping up in cases as arguments in favor of
keeping records secret. That was the same argument made in another
noteworthy case in which the Cincinnati school board did an end-run
around the open records law by using a post office box and a search firm
to hide the names of school superintendent applicants. And, guess what?
Lawyers for Kent State University cited the Cincinnati case to keep
names of candidates secret in KSU’s recent presidential search.
exceptions are ever-growing. Ten years ago, there were far fewer in the
law. They’ve now run out of single letters to attach exceptions to Ohio
Revised Code 149.43 – the open records law. We’re at exception “bb”
now. Hundreds of other exceptions are peppered in the statutes. One of
the most abused exceptions is the “trade secrets” exemption. Meanwhile,
legislators and courts have made it harder to get information about
tax-dependent organizations such as JobsOhio, charter schools and
Then there is Ohio’s actual definition of
public records. Before a court will even consider if something is open,
it must fit the definition of an actual government record. It can’t be
an open record if it isn’t a public record. We need a broader definition
that the courts will support.
Finally, consider the sheer volume
of content that government is creating, just like the rest of us. It
takes time and expense to review hundreds of documents. I agree with
government groups that this is a genuine issue. We’re not unsympathetic,
but maybe if we had fewer exceptions and ambiguities, those searches
would go a lot faster.
So, let’s be grateful for the progress that
the audit showed but keep our focus on fixing the big problems that
remain so Ohio citizens have the access to information they deserve.
(Dennis Hetzel is executive director of the Ohio Newspaper Association and president of the Ohio Coalition for Open Government.)