Ohio’s open records law is broad in what it purports to cover. It states that “all public records shall be promptly prepared and made available for inspection to any person at all reasonable times during regular business hours.” The public has the right to copies within a reasonable period of time. The public office can charge no more than its cost of copying the documents, not including the time used in locating, preparing and copying the documents. A public record is something that documents the organization, policies, functions, decisions, procedures or other activities of a public office. This includes records kept by the state, counties, cities, villages, townships, school districts, and other entities that perform a public service and are supported by public funds. In addition, nonprofit agencies are required to keep and disclose records of expenditures they make providing services with governmental monies.

There are a number of discrete exceptions set out in the law, covering such things as medical records, trial preparation records, certain law enforcement investigatory records, and security and infrastructure records. In addition, any record that is confidential under state or federal law cannot be released.

Unfortunately, it is very easy for public entities to evade the purpose of the open records law. In 2004, the Ohio Coalition for Open Government conducted a survey of all of Ohio’s 88 counties. More than 90 people from newspapers, radio stations, the University of Dayton and Ohio University tried to obtain records. Among the records sought were county commissioner minutes, an expense report of a county executive, police chief pay, police incident reports, superintendent compensation, and a school treasurer’s telephone bill from officials in each county — all of which are indisputably covered by the law. In over 30 percent of cases, access to the records was denied. In over 17 percent, records were obtained only after complying with conditions that are not provided for by law, such as requiring the request to be in writing, or requiring proof of the requester’s identity. When records were denied, officials often claimed the document requested was not a public record, set long waiting periods, or said they were too busy to respond.

Instead of strengthening the public records law, the Ohio legislature has in the past weakened it by broadening its exemptions. In 1990, the Ohio Supreme Court ruled that work papers of private auditors hired by the Ohio Auditor were subject to disclosure when the private auditors were auditing public entities. The Ohio legislature quickly reversed this, leaving Ohioans without access to work papers if the audit was assigned to a private auditing firm. More recently the Ohio legislature removed from public view the home addresses of firefighters and emergency medical technicians, certain identifying information in a public-health investigation, and names of concealed-weapon permit holders, though in certain instances these records are open to members of the media.

In January 2005, a bill was introduced in the House of Representatives (Am.Sub. H.R. 9) that would require the Attorney General to provide training and develop a model public records policy. It would also provide for a Public Access Counselor housed in the Court of Claims to assist the public and help resolve disputes. The bill passed the House of Representatives, with an amendment that requires public disclosure of work papers stemming from an audit by a private audit firm working on behalf of the State Auditor.

FINDING: Ohio’s laws requiring public deliberations serve an important purpose, but that purpose is too easily frustrated.

The Ohio Open Meetings Act permits citizens of Ohio to observe the operations of their government because it requires that public bodies must take official action and must conduct deliberations on official business only in a meeting open to the public. This includes meetings of any state board, commission, committee, or similar decision-making body of a state agency, institution or authority and any legislative authority, board, commission, committee, agency, authority, or similar decision-making body of a county, township, municipal corporation, school district, or other political subdivision or local public institution or any subcommittee of a public body. The law may be enforced by requesting that court enjoin decision-making and deliberations which are not conducted in public meetings.

Covered bodies are permitted to conduct some proceedings in non-public executive sessions. Executive sessions are allowed only to discuss certain specified matters such as personnel issues, purchasing property, pending litigation, collective bargaining security arrangements, trade secrets, and other matters specifically required to be kept confidential by state or federal law.

From time to time, accusations are made that members of public bodies have communicated by e-mail or by “round robin” discussions rather than deliberate in the open meeting. Some courts have found that a gathering of the members of a public body is not a meeting where they act only as passive observers in a ministerial fact-gathering capacity or informational session.

Article II, Section 13 of the Ohio Constitution requires that proceedings of the legislature be public, except in cases that require secrecy in the opinion of two-thirds of those present. Actions of committees relating to a bill or resolution must be taken in an open meeting of the committee. Actions that are not taken in open meetings are invalid.

The Ohio legislature has sometimes acted in a manner that, while arguably compliant with the letter of the law, frustrates it purpose. A recent example occurred in May 2006 when a redistricting proposal that had gone through the committee process did not receive sufficient votes for the measure to be placed on the ballot. It was amended on the floor of the House and an entirely different proposal that had not gone through any committee hearings was voted on by the entire House.

Ohio’s public records law should be made more easily enforceable. One possibility is to create a public access coordinator, which other states have used to resolve disputes without having to resort to litigation. To be effective, the public access coordinator must have adequate enforcement authority, such as monetary penalties for failure to comply.

Local officials must receive better training on compliance with the public records law, so that requested records are made available as soon as feasible but in all cases within 10 days. For requests that are too broad, individuals seeking information should be provided assistance in narrowing their requests. The state should increase the penalties on public agencies and officials who fail to provide requested public records in a timely manner.

The state should provide training for local officials concerning open meetings, clarifying that “round robin” discussions and the use of electronic communications to avoid public deliberation violate the law. It should also be made clear that information-gathering sessions are public meetings that should be open.

The transparency of the state legislative process should be improved, to better enable citizens to monitor the legislative process, including committee hearings and the drafting process. An additional hearing should be required to allow public comment when significant new amendments to legislation are proposed.