New ruling: Public records appeals process does not cover court records

From The Columbus Dispatch

To the chagrin of transparency advocates, a new appeals process to permit Ohioans to pry loose potentially illegally withheld public records does not apply to court records, an Ohio Court of Claims judge ruled.

The decision by Judge Patrick M. McGrath was issued Friday in a case filed by The Dispatch seeking to unseal records in the divorce case of state Sen. Kris Jordan and Delaware County Recorder Melissa Jordan.

Michael Brady, a visiting judge in Delaware County Common Pleas Court, unsealed the case in response to The Dispatch’s request a day before he was formally served with the newspaper’s Court of Claims complaint.

The Dispatch contended that the sealing of the case violated Ohio’s public records law and court rules, which say court records are presumed open and only can be sealed with legal justification. The entry sealing the Jordan case contained no such justification.

McGrath dismissed the complaint, ruling that the courts have controlled their own records since mid-2009 and that the law creating the appeals process only permits appeals of public records denials by executive-level agencies.

“This special statutory proceeding does not confer authority to hear disputes regarding denial of access to court records,” which require the filing of a mandamus action in other courts, he wrote.

The law creating the low-cost, prompt public-records appeals process was authored last year by then-Senate President Keith Faber, R-Lima, now a state representative.

Faber said Monday it “certainly was not our intent” to prevent the appeals mechanism from also handling disputes over court records. “Why would the Court of Claims process not be a good way to appeal (denial of court records)?” he asked.

Faber said he understands the need for separation of powers between the legislative and judicial branches, but noted, “This should apply to all government disputes where it makes sense and certainly if the court is saying the statute doesn’t apply, they ought to enact a similar appeals process” for court records.

Dennis Hetzel, executive director of the Ohio News Media Association and president of the Ohio Coalition for Open Government, agreed with Faber.

“It’s in the public interest of this appeals process for it to also apply to court records. I want to see if there is an opportunity to clarify this statue,” Hetzel said.

Ohio Supreme Court spokesman Bret Crow said in a statement, “The court believes appropriate processes are in place for access to records maintained by the judicial branch, some of which are highly sensitive. However, we are always open to suggestions about how we might improve access to public documents.”

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