Ohio Public Records Briefing - Issue #1
Make sure that you're a paid subscriber if you want to get issues going forward!
Welcome to the first edition of the Ohio Public Records Briefing! We hope this newsletter will be an informative bi-weekly refresher on Ohio public records law. We’ll have fun facts that you might not know about public records law, what new law changes are being considered by the Ohio General Assembly, a summary of relevant court cases, and a review of things you may have learned, but forgotten. Let’s get into it!
Fun Fact
A work-related message on your Gmail account (or other private account) is a public record. A personal conversation unrelated to work on your government email account is not a public record.
One of the most common misconceptions in public records is that where a record is stored influences whether it’s a public record. In fact, it’s mostly irrelevant where a record is stored! Instead, what matters is the content of that record. There are three required elements in the definition of a public record. Learn more here.
Things You Should Know, But Might've Forgotten
Why does Ohio (and the USA) have so many different public records laws?
Since you’re reading this newsletter, you’re probably a public records pro. But just like every professional, sometimes in the craziness of the job, you forget some of what you’ve first learned. That’s why we’re going to update and remind you of the things you should know but might’ve forgotten. We’re keeping you fresh!
You already know that Ohio has a public records law (right there in R.C. 149.43). You’ve probably also heard of FOIA or the Freedom Of Information Act that governs public records requests made to federal agencies. Most other American states also have public records laws. Why are we so pro-transparency in this country?
To answer that question, let’s go all the way back to the 1770s. A bunch of English colonies were getting more and more frustrated with King George and the English government. Sure, you’ve heard about the Stamp Act and the Boston Tea Party. But do you know what other complaint those patriots had that made it right into the Declaration of Independence? Public records access. Don’t believe us? It’s right there in the Declaration, listed with the other complaints about British rule:
King George has “called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their Public Records…” In plain English, that darn king and his government weren’t transparent and made it difficult to access records important to everyday citizens.
So remember, the next time someone asks why we fought the Revolutionary War, the answer is public records, not tea!
Fast forward a couple hundred years and Ohio has its own public records law, the Ohio Public Records Act. That law is written by the Ohio General Assembly – your representatives and state senators. The law is continually clarified and amended, which is why we have a section of the newsletter which will track bills going through the General Assembly related to public records.
What's New In The Ohio Legislature
One of the things this newsletter will do is keep you up to date about new and proposed legislation that will change or effect public records. Keep in mind that proposed legislation might change significantly or might not pass at all!
This issue, we’re looking at House Bill 41. HB 41, sponsored by Representatives Lanese and Liston, aims to expand the definition of “designated public service worker” contained in R.C. 149.43.
As you may know, Ohio law created a category of public employees called designated public service workers who enjoy greater protections when it comes to public records. Generally speaking, addresses, phone numbers, and medical information of these public service workers are exempted from public records requests and don’t have to be produced.
When the law was first written, designated public service workers were mostly limited to law enforcement, firefighters and EMTs. But recently, different groups have lobbied to have their profession included in this list. Today, corrections officers, board of pharmacy employees, and parole officers are also included.
HB41 would further expand the definition of designated public service worker to include these three new categories of public employees:
1. Forensic mental health provider – HB 41 defines this as any employee of a community mental health service provider or local alcohol, drug addiction, and mental health services board who, in the course of the employee’s duties, has contact with persons committed to a local alcohol, drug addiction, and mental health services board by a court order.
2. Mental health evaluation provider – HB 41 defines this as an individual who, under Ohio law, examines a person who is alleged to be a mentally ill person subject to court order and reports to the probate court the respondent’s mental condition.
3. Regional psychiatric hospital employee – any employee of the department of mental health and addiction services who, in the course of performing the employee’s duties, has contact with patients committed to the department of mental health and addiction services by a court order pursuant to Ohio law.
HB 41 was introduced on February 3, 2021 and was referred to committee where little happened. However, given its extensive list of co-sponsors, the bill has a solid chance of becoming law in 2022.
Public Records Court Case Review
In this Newsletter, we’ll review noteworthy court decisions. Some of these cases will be new while others will be older. The goal is to highlight interesting situations where a court decides issues that a public agency is likely to encounter.
State ex rel. Cincinnati Enquirer v. City of Cincinnati (2019)
Cincinnati Police were called to a scene where they encountered two men. When police attempted to arrest the men, they resisted arrest. During the scuffle, officer used their tasers. Both men were charged with resisting arrest and other offenses. Both officers were wearing body cameras.
The Cincinnati Enquirer made a public records request for the body camera footage. Initially, the city denied the request outright citing the confidential law enforcement investigatory records (CLEIR) exception. The Enquirer then filed a lawsuit with the Ohio Supreme Court seeking release of the footage. About three weeks after the complaint was filed, Cincinnati gave the newspaper the videos but redacted the faces of plainclothes or undercover officers who appeared on the body camera footage. The Enquirer was unhappy with the redaction and demanded all of the footage.
Undercover / Covert identities were properly redacted
The Ohio Supreme Court ruled against the Cincinnati Enquirer and said the City was correct to obscure or redact the identifying information of the undercover officers. During the lawsuit, the police department submitted an affidavit showing that the officers whose faces were blurred worked in a covert capacity and would be in danger if their identities were known. The Court said that “police officers have a fundamental constitutional interest in preventing the release of private information when disclosure would create a substantial risk of bodily harm, and possibly even death, from a perceived likely threat.”
The City was wrong to deny the initial request completely and had to pay for its mistake.
While the city was correct in withholding the identity of undercover officers, they initially denied the request completely and didn’t provide anything until nearly three weeks after they were sued. The Supreme Court ruled that the city acted in bad faith and ordered the city to pay the Enquirer’s attorney fees, likely several thousand dollars.
The Court’s opinion suggested that if the city had evaluated the first records request and taken steps to review and redact the body camera footage over several weeks, it would have been acting properly.
You Made It!
That’s a wrap on the first Public Records Briefing! We’ll see you in two weeks. In the meantime, submit your public records questions here, and we may answer some of them next time!
Share This Newsletter
If you liked this newsletter and think it would benefit others - share this link with them. And if you haven’t already, make sure that you’re a paid subscriber so that you can get the next edition, which will be sent out January 31.