Dispatch editorial: Lawmakers and courts are making it harder to monitor government

When Ohioans find their access to government thwarted and sue to assert their open-government rights, the odds are stacked against them in the Ohio Supreme Court.

So finds a recent analysis by the Ohio Coalition for Open Government in a report that examines 32 such cases between 2010 and this year. Of those cases, only 12 rulings favored open government. The remaining 20 decisions went the other way.

Asked about the disparity, the court’s official response was that it is not the court’s job to make law, but simply to apply the laws the legislature has written. If the legislature has made government less open, and the laws that restrict access are constitutional, the court has no authority to overrule them.

The court makes an important point. The three-branch system of government relies on each branch sticking to its role and not encroaching on the roles of the other two. Laws are to be written by the legislature, not by judges.

However, not every decision examined by the coalition was unanimous. Sometimes the decisions are 4-3 or 5-2, indicating that even among the justices, there is some disagreement about how to apply a given law.

And in at least one case, the Ohio Supreme Court appears to have legislated from the bench, when it created a limited executive privilege for the governor in 2006, allowing the state’s chief executive to bar public access to certain communications with advisers. There is no provision for executive privilege in the Ohio Constitution, yet the court found it by citing federal case law involving the U.S. president and in examples from other states.

But the court does point to the biggest threat to public access to government: the legislature. Over the years, lawmakers have chipped away at public access. Lawmakers have made the employment records of certain classes of public employees, such as police, off-limits on the grounds that they face threats, though little evidence is offered to back the claims.

In other instances, the legislature closed the records of concealed-carry permit holders and shielded the operations of JobsOhio, the state’s economic-development arm.

When transparency and accountability are reduced, it creates ideal conditions for corruption and malfeasance to take root.

Meanwhile, government bureaucrats at all levels think that it is OK to stall, delay, ignore, obfuscate and withhold, all to thwart citizens and journalists seeking to find out what the government has been up to.

For example, the Ohio Department of Education recently delayed a request from The Dispatch for a copy of the grant application the department submitted to win a $71 million federal grant for charter schools. The department claimed that the application had to be vetted by its attorneys first, which was nonsensical. The grant application is unquestionably a public document and its release should be automatic.

Likewise, the department refused to provide any information about the number of Ohio schools that have failed to submit emergency plans required by the state. This is vital information for parents, but the department refused to budge.

The ultimate losers in such situations are the residents and taxpayers of Ohio, whose ability to monitor and hold their state and local governments accountable is reduced, but who pay to clean up the mess when government goes awry.