Ohio Public Records Briefing - Issue #8

Your newest public records mantra - when in doubt, give it out. Plus a whole lot more...

Welcome to the eighth issue of the Ohio Public Records Briefing! There’s always so much to cover, so let’s dive in.

Things You Should Know, But Might've Forgotten

When in doubt, give it out.

Don’t you love these pithy sayings we send your way every two weeks? We’ve got a bunch of them (but not all of them relate to public records law)! Hopefully they give you a way to remember the basics of public records. In this case, you might be wondering what the “it” is in the above statement. It’s the public records being requested, silly!

Sometimes, agencies will get a public records request that’s not black and white, where it’s unclear if you must release or withhold the record. As a public records professional, you may have found yourself in a situation like this. In those cases, you may feel like you ought to just deny the request since you can theoretically contrive an argument that would let you do so.

This is where our pithy saying comes in – when in doubt, give it out. Now you may be saying, why? Why should I give it out? And the answer is: it’s the law.

Ohio’s Public Records Act requires public office employees, when reviewing whether a record can be released, to err in favor disclosure. But, surprise -- many people scour the law to find a reason to not hand a record over. They would probably claim they’re following the law, but – even if they find a partially relevant exception, they’re violating the spirit of the law.

That might leave you with a question – how to break a tie where it’s nearly 50-50% on whether we should release it or not? Here’s what you need to remember: the courts have ruled that government agencies must liberally construe the Public Records Act toward disclosure, but narrowly construe against any exceptions. If there’s any doubt, we should resolve it in favor of disclosure. I know… It’s not the answer you want. But it may be the answer you need.

Proposed Legislation - What’s Going on in the Ohio Legislature

Today we’re talking about House Bill 445. HB 445 was introduced in the House back in October 2021, and is still being debated. While most of the bill itself focuses on laws governing the 9-1-1 system, there’s a small change to public records and R.C. 149.43 tucked in there too.

HB 445 overhauls a lot of rules and regulations for 9-1-1 operations throughout Ohio. It also includes new laws that would apply to telecommunications providers (such as Verizon, Sprint, etc.). The news laws require these service providers to keep and provide data (mostly location data) to 9-1-1 operators to help in emergencies. This data being submitted to the government would be a public record by definition. These electronic records are a fixed medium received by the government that documents what the government does (look at R.C. 149.011 (G) for a refresher on that). So – unless the law provides otherwise – that new information would need to be released as a public record. That location data could be used to violate the privacy of cell phone users. Like this guy.