Ohio Public Records Briefing - Issue #10
We’ve made it to double digits! Thanks for joining the fun. It’s always fun to celebrate ten. Today we’ll cover PDF’s, attorney-client privilege, and… autopsy reports?
In honor of Issue 10, we hope you’ve learned ten new things about Ohio Public Records law. Or at least enjoyed the trip. Either way. Let’s get after it!
P.S. If you haven’t become a paid subscriber yet, take advantage of this special 30-day free trial, so you can read the full version of this week’s edition and have access to the full archive!
Fun Fact
Any way you want it! In addition to being a hit song by Journey, it also applies to public records requests. When someone makes a public records request, R.C. 149.43(B)(6) lets them ask for copies of that public record in a particular form if the agency can reasonably make it happen. Here are some examples:
If you keep a certain ten-page public record in paper form and someone asks for a PDF copy of it, they’re almost certainly entitled to it. Copy machines, scanners, and cell phones are able to turn a paper document into a PDF in seconds and just about every agency has one of those three things. Claiming your office can’t turn a paper record into a PDF is likely to have a judge telling you this.
If you keep 10,000 pages of historical public records -- only in their original paper form – and someone asks for a PDF copy of that, that person is probably not entitled to have it as a PDF. Scanning 10,000 pages is probably not reasonable, but there could be some judges who would say otherwise if an agency has access to a high-speed scanner.
Finally, what if someone asks for a copy of a spreadsheet and they want it in Microsoft Excel format instead of PDF or paper? If the public record exists in a certain format (e.g., Excel), then someone is entitled to ask for it and receive it in that format.
This of course leads to the toughest question of all time. What happens if someone requests a government spreadsheet and then takes the file home and changes the numbers on the spreadsheet? (spoiler alert: don’t worry about it, people are entitled to do dumb things with spreadsheets if they really want to, and the official copy of the record is still unchanged at your office).
Things You Should Know, But Might've Forgotten
“I’m gonna sue you!” Okay, but where?
Remember last edition, we gave you the great news that if you screw up the delivery or redaction of public records, you’re not personally liable? Well, now it’s time to talk about what the legal process looks like for a frustrated citizen to bring action against your agency. Up until six years ago, there was only one way for an angry citizen to bring his or her public records complaint: filing a writ of mandamus in an Ohio court. Mandamus is Latin and you can probably already guess that the citizen would need to hire a lawyer in order to do it. What’s the cost for a citizen to litigate a mandamus action? Probably a minimum of $5,000 upfront and at least nine months until a decision. Unless you denied a request from a multi-millionaire or a news outlet, you probably won’t be sued over the record. Most average citizens won’t think public records are worth that kind of investment.
Six years ago, all of that changed. Current Ohio Auditor of State Keith Faber (formerly a State Senator) proposed a bill that would create the public records lawsuit super bypass! That bill, which became law in 2016, created a whole new way Ohioans can sue the government over denied public records requests. This process, which happens in a smaller court called the Ohio Court of Claims, has a single-page complaint form that could be filled out by most elementary school students. Just not this one. After the form is filed, the citizen and the agency go through telephone mediation. If the case isn’t resolved that way, the court will issue a binding ruling.
The filing fee? That’ll be $25. Oh, and the Court of Claims only takes two to three months to get a decision (though lately, it’s been longer than that).
Now, that angry citizen who doesn’t want to spend $5,000 on a lawyer can choose to pay $25 and fill out a one-page complaint form. As you might expect, this has created a lot more public records lawsuits (via the Court of Claims) than there were before!
It's important for public records professionals like yourself to know how the process works so that if something like this happens to your agency, you’ll be prepared. Do you have questions about this process? Submit them here or by responding to this email, and we’ll answer them in a future edition!
What’s New In The Ohio Legislature
Today we’re looking at proposed legislation, House Bill 367. This bill, proposed and co-sponsored by multiple Democratic lawmakers in 2021, would make big changes to body cameras and public records. If passed, here’s what the bill would do: