In Ohio, what do you do when a public agency flat out ignores your request for public records?
Usually, if you don’t have access to an attorney and large sums of money to fight the agency in court, you don’t have much recourse, other than to continue bugging the person in charge of those records until he or she relents or the sun explodes.
Well, that’s the exact situation The Athens NEWS finds itself in on occasion, most recently with my good ol’ alma mater, Ohio University. But luckily, a relatively new program through the Ohio Court of Claims is here to help. More on that later.
Under Ohio’s Public Records law, which I actually know pretty well (being a nerd for these kind of things), a public agency must provide you with all or part of records you request if they are indeed determined to be public documents under those laws. The main problem that arises when I’m making these requests? The public agency (OU’s legal office in this case) is the one that gets to decide what is public and what isn’t.
Case in point (and the reason why I’m writing this column): OU has been undergoing a search for its next president since last summer. The Board of Trustees is set to vote this Wednesday on appointment of the university’s next president, likely to be Duane Nellis of Texas Tech University (he’s the last candidate standing at this point).
Nearly 12 weeks ago, on Dec. 1, I requested records of the curriculum vitaes of people whom I knew the university would be interviewing for the position during a meeting at OU’s Dublin Campus later that month. I did not know the identities of these potential candidates but did know from other received records that they would meet with OU’s search committee in early December.
For more than two months (Dec. 1 – early February), the university’s legal office under General Counsel John Biancamano ignored my request for those records. They didn’t even do us the courtesy of explicitly denying the records, which is part of what public agencies are required to do under the records law if they do not think the records are public, or otherwise do not have them.
At one point after weeks of my emailing and asking for a response, OU’s records clerk herself asked Biancamano, “Are we responding?” in an email that appeared to have accidentally CC’d me. Oof.
Complicating matters is the fact that the university had hired a private search firm for about $150,000 to help conduct the search process. Often, these search firms have their own databases of executives throughout the higher-education world who, while not actively applying for jobs elsewhere, are still interested in learning more about positions at other institutions. Still, under Ohio law, private firms can hold records that by law are considered public, provided they are doing the business of a public agency.
So, we made a complaint through the Ohio Court of Claims. After an initial flub (I forgot to send in the $25 application fee – whoops!), the process got underway pretty quickly. Just about a week later, the Court of Claims informed me that the process would go forward to “mediation.” The point of this complaint/mediation process is actually a lot less scary than you’d think – it’s not a lawsuit, and you don’t need to know a whole lot about the law in order to get a positive result. The entire point is for you and the state agency you have requested records from to be questioned by a neutral, third-party mediator (who is an expert on public records) on the intent of your request, what records the public agency actually has available, and talking through whatever stumbling blocks the public agency faced that may have caused it to delay or decline to provide the records.
My end result? We got the records – just last week, actually. I can’t talk much about the mediation process because it is confidential (which is a plus for both sides, but especially the public agency who may want to save face), but safe to say, I’m happy. We received record of the CVs of five semifinalist candidates last week. And you know what? I’m not even going to report on the names of those semifinalists. They’re no longer being considered for this position, and it’s not fair to put their names on blast. My complaint was never about them: It was about this university providing information that is unquestionably a matter of public record, as it is obligated to do under Ohio law.
Mark Reed, clerk of the court at the Court of Claims, explained last week that the records mediation process is meant to be accessible and non-adversarial, because journalists often are the one needing the aid, and the journalists sometimes have long-standing relationships with agencies from which they request information.
Similarly, Reed, who was the mediator in my case, knows the records law incredibly well – so long as somebody’s complaint is valid (meaning public-records law backs you up), he will help you get the records. That includes members of the public, who Reed said already have found some success through the program.
“The best place for people to start is to look at the Court of Claims website,” Reed said. “We have a lot of information on our website about how to do it.”