State school board president withholding some documents from auditor

From The Columbus Dispatch State Board of Education President Tom Gunlock has refused to release internal communications requested by state Auditor Dave Yost for his annual audit and probe into the Ohio Education Department’s rigging of charter-school evaluations.

In a letter, Gunlock told Yost that communications between department attorneys and employees regarding the evaluations are protected under attorney-client privilege.

“I believe that you can make the determination of whether ODE followed the sponsor-evaluation law for those first five sponsor evaluations without having to violate ODE’s attorney-client privilege,” Gunlock wrote.

Gunlock, a board member from Centerville appointed by Gov. John Kasich, also assured Yost “that ODE would continue to cooperate with your office to facilitate completion of this audit.”

Gunlock noted that he was personally responding to a letter that Yost had sent him, and he had not asked others on the 19-member board, which meets later this month, to weigh in. Other members had been copied on Yost’s letter.

Yost spokeswoman Brittany Halpin said the auditor hopes the full board will reconsider Gunlock’s decision. She noted that Columbus schools waived attorney-client privilege to release documents to Yost during his investigation into student-data tampering in the district.

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Dispatch editorial: Parents have right to know

Editorial from The Columbus Dispatch

When entrusting their children to a school for hours each day, parents have a right to know whether there is an emergency safety plan in place in case something bad happens.

Neighbors and taxpayers in a district also have the right to know; it’s a matter of public safety, and having such plans on file with the state has been mandated by state law since 2007.

Yet the official position of the Ohio Department of Education is that it cannot disclose whether a given district or school even has filed such safety plans. Two years ago, Ohio Attorney General Mike DeWine said that 166 school buildings had not filed required plans with the state; yet the Education Department now will not say how many still have not done so, let alone reveal any specifics.

A department spokesman told The Dispatch recently that giving out even aggregate numbers could create a safety risk for schools, and referred a reporter to individual school districts to ask whether they had filed plans. This is preposterous; while it’s understandable that school systems would want to keep the details of their plans secret, the existence of the plan needn’t be secret. And there is a clear and compelling public interest in knowing that districts are complying with the law and working to keep kids safe. The state’s top legal official, DeWine, clearly thinks so, so it’s hard to believe that the DOE would say it is denying the same information on legal advice.

This seems like another instance of the Education Department refusing to follow public-records laws. This summer, the department dragged its feet for six weeks before turning over emails related to David Hansen, the former head of school choice for the Education Department. Hansen resigned after it was revealed he had made the performance of some charter schools look better by omitting data in a state assessment. When the emails finally were provided, it raised the question of why Superintendent Richard Ross knew nothing about the data rigging, as he contended, since others apparently had known for more than a year.

In this case, it’s particular schools and districts that might look bad. The General Assembly passed the law requiring safety plans to be filed eight years ago, and DeWine started pressing laggard districts to quickly do so three years ago.

Central Ohio districts have put such plans into use already this school year. Ask Licking Heights High School, which went into a lockdown situation last Friday after a bomb threat (later revealed to be a hoax) was called in. District Superintendent Philip H. Wagner said that all went well because the proper plans were in place at the school and with the state law-enforcement and education agencies.

Safety concerns have become heightened in the wake of several tragic shootings in recent years, but keeping kids safe at school is not a new concept that should take districts by surprise.

From the “duck and cover” bomb drills of the 1950s to required fire evacuation plans through the present day, schools always have been charged with putting protocols in place to ensure safety.

The Education Department should provide the information, and any schools that still haven’t fulfilled their obligation to the state, students and the community should immediately get on board. This is a case where shining a light on stragglers could do a lot to enhance the safety of schoolchildren.

Does the Ohio Supreme Court support open government? OCOG analyzes six years of cases to find out

• Download this press release (Sept. 30, 2015)
• Download the judicial scorecard
• Download the report spreadsheet analyzing Ohio Supreme Court cases
• Download the response from the Ohio Supreme Court

A report by the Ohio Coalition for Open Government (OCOG) confirms the view that the Ohio Supreme Court most often sides with officials in cases involving government access and transparency, but a recent string of decisions has shifted outcomes more in citizens’ favor.

The Ohio Coalition for Open Government built a spreadsheet to track court rulings and the votes of individual justices in open-government cases the Court has handled since 2010.

Forty-four rulings were examined from July 2010 to July 2015. The final OCOG analysis excluded routine prisoner appeals and eight cases in which the opinions were too mixed to be fairly scored one way or the other. Of the remaining 32 cases, 12 were voted in favor of open government – including the five most recent decisions tabulated – and 20 favored restricting or denying access.

Among the sitting justices, Justice Terrence O’Donnell was the justice most likely to decide against access – 77 percent of the time (excluding routine prisoner cases). Justice Judith French was the justice most likely to vote in favor of parties seeking access. She voted against access 60 percent of the time, a 17 percent difference from O’Donnell.

“We wanted to see if trends emerged as you examine dozens of rulings,” said Dennis Hetzel, president of OCOG and executive director of the Ohio Newspaper Association. “A lot of these decisions are 4-3 or 5-2, so obviously the justices don’t view the law in the same ways.”

The Ohio Supreme Court was given an opportunity to review the analysis and responded in part by saying, “The role of the Supreme Court of Ohio in open government cases is to interpret and apply the public records access laws passed by the General Assembly. The Supreme Court is not free to use cases to legislate its own views on open government.”

For the complete response from the Ohio Supreme Court, go here.

“We agree that people should keep in mind that there are a lot of factors that go into decisions, starting with the facts of the case, the existing law and evidence as presented,” Hetzel said. “Sometimes it means a poorly written statute needs fixing, which was starkly demonstrated by their recent ruling involving Ohio charter schools. A number of decisions in recent years have made it particularly difficult to gain access to government records in Ohio.”

Hetzel said one recent case, Murray v. Chagrin Valley Publishing, actually is a libel and defamation case, but was included in the database after some deliberation.

“It fits our criteria of including meaningful cases on open government issues. In July, the Supreme Court refused to consider Murray’s appeal of the lower-court decision against him,” Hetzel said. “We believe a decision in favor of Murray would open the door to more actions that chill the First Amendment rights of citizens to comment on matters of public concern.”

The OCOG analysis was compiled using the WestLaw website to identify and summarize relevant cases. Courtney Stanley, a recent graduate of the University of Cincinnati and a summer intern at the ONA, worked with Hetzel and Jason Sanford of the ONA on the initial analysis, which was then reviewed by several Ohio attorneys who are experts in open government cases.

To view the OCOG spreadsheet and other documents, go to www.ohioopengov.com/news/supremecourt. Hetzel said that OCOG plans to update the spreadsheet as new rulings are issued.

“For example, the Supreme Court just ruled in Clough v. Franklin County that a mother did not have the right to see documents related to an investigation of suspected abuse of her daughter,” Hetzel said. “Regardless of how you feel about that outcome, it’s an interesting case and should be part of our database.”

Hetzel added that OCOG is closely following two pending cases. One involves a school board majority’s use of e-mail for deliberations instead of having a discussion in a public meeting. The other case challenges the refusal of the Columbus Police Department to allow access to records in a murder case in which the defendant claims he is innocent.

Alan Miller commentary: Newspapers increasingly fight for open records

By Alan Miller, editor, The Columbus Dispatch We live in a culture of “no.”

That’s what officials say with increasing frequency when journalists ask for records, seek to photograph concerts or take notes at a public meeting.

It’s often the default position for an initial response: “No.” Typically, we can teach the offenders the law and win a favorable outcome on your behalf.

For others, and this is particularly troubling, “no” has become unofficial policy. They argue and stall and conveniently forget, all the while hoping that they will wear us down and we’ll go away.

Sadly, it works in some cases — especially when those seeking the information are not journalists but folks who just need it for an insurance claim or to make sure their children are treated properly in school. Bullies in the bureaucracy win. The public loses.

Reporters and editors crab about this frequently, especially when we’re in the middle of another skirmish in the unending battle.

It happened this week with the city of Columbus over records regarding a disciplinary case. The city stalled and delayed, and argued against logic and the law that the information is not a public record. But it is, and after several days, Assistant Metro Editor Doug Caruso extracted the record.

We routinely move from one fight to the next on your behalf. Sometimes, we write about them. Often, we don’t.

I brought this up with the Associated Press Media Editors board earlier this year because I was concerned about the growing scourge. As president of the national organization, I asked the board what we could do.

One thing is to create awareness. We decided to include on the group’s website a list of news stories about roadblocks to transparency.

We update the list regularly, and it has grown long, illustrating just how bad it has gotten. Here are a few headlines from among the latest additions:

Reno newspaper sues city of Sparks over marijuana licenses

Judge sides with media in open records lawsuit against state

Joplin city attorney denies Sunshine Law violation

Most oppose new public records charges in Tenn. hearings

The entire list is nothing short of stunning. You can read it online at apme.com.

I often push reporters and front-line editors in The Dispatch newsroom to do their best to fight these battles. We urge everyone to learn key points of Ohio’s Sunshine Laws, and we’ve developed legal experts — reporters and editors — who serve as touchstones for those who need help in specific areas of law. Among them is reporter Randy Ludlow, who writes regularly on the topic in his “Your Right to Know” blog on Dispatch.com.

We win most fights, and here’s an example: A big-name entertainer came to Columbus, and when we filed for credentials, we received a form for the photographer to sign.

The release, had we signed it, would have had the newspaper give up ownership and copyright claims for all images made during the concert “forever for all uses throughout the world without any extra payment to you and/or royalty thereof. … You may or may not be given credit based on the discretion of the parties using the photographs.”

And my favorite: “Photography will not exceed 60 seconds of performance.”

We pushed back, telling the artist’s public-relations team that the request was as offensive as if someone asked the artist to perform his best work in a minute. Or that once he performed in a minute, his work would become publicly owned, since he was performing in a publicly owned arena. And we wondered aloud whether the hundreds of cellphone-toting fans who attend his concerts are subjected to the same demand that they shoot photos for no longer than a minute and give up rights for life.

We proposed a new agreement that allowed us to photograph the first three songs, retain rights and one-time use in print and online, and we promised that we would not sell our photos.

Within three minutes, his public-relations team approved the new agreement without comment.

Sometimes, all we have to do is push back a little. But we live in a culture of “no,” and most of the time it’s far more challenging than that to win access on behalf of the public.

Dispatch editorial: Putting a chill on campus speech

Editorial from The Columbus Dispatch

New free-speech rules at one Ohio public university underscore that much work remains to be done to defend the First Amendment on college campuses.

The University of Toledo has adopted an “expression on campus” document “to promote the free exchange of ideas and the safe and efficient operation of the university.” The policy was developed following an appearance on campus a year ago by Republican strategist Karl Rove. He attracted sign-carrying protesters who say they were stopped by police from entering the event.

The protesters claimed that barring them from the event violated their free-speech rights. The university responded with the new policy in an attempt to protect free-speech rights.

But The (Toledo) Blade pointed out that it’s unclear how such a protest would be treated under the new policy. It “emphasizes the fostering of free speech and right to assemble but prohibits activities that disrupt teaching, business operations or providing client services,” the Blade reported.

The story quoted a university spokesman, who referred to a section of the policy that states that the school “reserves the right to address such situations as circumstances warrant.”

The policy was developed with input from the Foundation for Individual Rights in Education (FIRE), a 15-year-old nonpartisan organization based in Philadelphia that is dedicated to promoting free speech. On its website, TheFIRE.org, the group gives a green (best), yellow or red ranking of universities for how well they guarantee free speech.

Even after putting this policy into place, the University of Toledo still rates an abysmal “red.” Ohio State University, Ohio University and Kenyon College also rank red. The only Ohio college ranked “green” is Cleveland State University.

FIRE sees a small positive trend in free-speech policies, but says a majority of schools continue to “maintain policies that seriously infringe upon the free-speech rights of students.”

In its annual Spotlight on Speech Codes report this year, the group found that “nearly 55 percent of the 437 colleges and universities” had such speech-limiting guidelines, but this marked “the sixth consecutive year... this percentage has dropped.”

Ironically countering this trend, FIRE notes, is that “under pressure from the U.S. Department of Education’s Office for Civil Rights, a number of universities have newly adopted unconstitutional speech codes under the guise of harassment policies.”

For example, Florida State University’s Equal Opportunity and Non-Discrimination Statement contains language “so broad that you could drive a truck through it, leaving the university with unfettered discretion to punish virtually any speech or expression it finds undesirable,” FIRE says.

Often, it is not the protesters who are suppressed, but the people they oppose. For example, the site lists speakers who have been disinvited under pressure from protesters or whom protesters tried to have disinvited. Of the 284 listings, a little more than half of the speakers were the subject of pressure from the left, including George W. Bush (OSU, 2002), John McCain (Ohio Wesleyan University, 2010) and conservative gender-issues author Christina Hoff Sommers (Oberlin College, 2015).

College campuses are supposed to be bastions of free speech, but often have become fortresses of speech-suppression and groupthink. Colleges should establish clear rules promoting free speech and refuse to bow to pressure to disinvite speakers simply on the basis of ideology.

Attorneys try to bar media from Fairfield pool hearings

From The Cincinnati Enquirer Attorneys for two juveniles arrested during a chaotic altercation with police at a Fairfield pool in June have filed motions to keep the news media from attending subsequent court hearings.

The Enquirer previously reported the juveniles' parents objected to media presence at a pre-trial hearing, but the recently filed motions make those objections official – and it means there will be a hearing to determine whether media members are able to cover the proceedings.

That hearing is scheduled for Oct. 20, according to Rob Clevenger, director of Butler County's Juvenile Justice Center.

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Advertiser-Tribune editorial: Records secrecy just isn’t tolerable

Editorial from The Advertiser-Tribune More and more, government officials at all levels seem to have adopted a new philosophy about laws requiring them to turn over public records when they are requested: Just say no. Then, prodded by promises to take them to court if they continue breaking the law, some officials drag their feet as long as they can get away with it.

Officials in the Ohio Department of Education should not be allowed to do that.

In July, DOE School Choice Director David Hansen was permitted to resign after he admitted he had doctored reports on charter school evaluations. Hansen said he had excluded failing grades for some online and dropout recovery schools because he did not want to "mask" the institutions' other successes.

In other words, Hansen covered for the schools, making them appear much more effective than they were.

Questions arose quickly about whether Hansen was telling the truth when he claimed he acted on his own. Some news organizations and legislators have asked the DOE for copies of Hansen's communications, to see whether there was collusion with others.

But the DOE has not provided the information. A spokeswoman insisted this week the agency plans to do so. Requests for the records "are in motion," she added.

If so, the motion has been very, very slow.

Information on how taxpayers' dollars are spent on schools - everything from official emails to standardized test results - is public record. DOE officials should turn over the Hansen communications immediately.

Sentinel-Tribune editorial: Public business should be public

By Jan Larson McLaughlin, Sentinel-Tribune Editor

Some things are better in the dark. Movies. Fireworks. Sleeping.

But discussions that have to do with public health and safety should be in the light of day. The glare may make it less comfortable for public officials to talk about sticky issues, however, that’s the glory of our government.

Not only can a little sunshine go a long way toward solving issues, but the public deserves to be aware of the discussion.

Despite this, the public was again shut out last week of a meeting on a topic that many have a great interest in — water.

It was just over a year ago when much of the northern portion of Wood County was advised to not drink tap water due to unsafe levels of toxin produced by algae. Countless meetings have been held to find solutions to the problem and prevent it from happening again.

It’s hard to believe that public officials don’t realize that the people they serve are intently interested in the well-being of their water.

But last week, reporters from the Sentinel-Tribune and the Rossford Record were denied access to a meeting on water held in Perrysburg.

The Wood County commissioners had been invited to the meeting, billed as a mayors forum to discuss “Our Water Supply.” So Sentinel-Tribune County Editor Alex Aspacher planned to attend as well.

But Aspacher and Rossford reporter Beth Church were informed that the meeting was not intended for the public.

Perrysburg Mayor Michael Olmstead, who organized the event, said he worried those attending wouldn’t speak openly with media in the room. Among about 40 people present were officials from Toledo, Lucas and Wood counties.

Upon learning the public was not welcome, the Wood County commissioners declined to participate.

Perrysburg Municipal Administrator Bridgette Kabat said the commissioners were invited to “listen and observe” the meeting rather than participate, and that Ohio Revised Code allows such a meeting to take place behind closed doors.

I have never heard of such a provision that allows public officials to meet in private as long as they listen and don’t speak.

Neither has the commissioners’ office.

“The hosts of the meeting were saying that it wasn’t a public meeting — even though more than one commissioner was there — because the commissioners would not be making decisions at the meeting,” Wood County Administrator Andrew Kalmar said. “We disagree with that premise.

“Basically the law says that if they are there to consider the business of the public, it’s a meeting,” he continued. “It doesn’t say anything about making a decision.

“They are certainly supportive of the topic at hand and wished to participate in that discussion, but they simply were not comfortable with the premise of the meeting as not being a public meeting,” Kalmar said of the commissioners.

After last week’s meeting, Olmstead did tell our reporter that the discussion centered on future water supply alternatives other than continuing to contract with Toledo.

“Communities are going to have to start making decisions,” as their contracts with Toledo expire, Olmstead said. “It’s a matter of months, not years.”

Why wait to let the public know what options are being studied? Despite the fears of some public officials, a little sunshine makes for healthier and honest decisions.

So thanks to the county commissioners for realizing that public business should be conducted in public. And here’s hoping that Perrysburg officials learn to let a little sunshine in.

After Rove dustup, UT issues free speech rules

From The Blade

A new semester arrived with a fresh policy that addresses University of Toledo students’ free speech rights.

An “expression on campus” policy now guides campus protests and assemblies.

It codifies UT’s commitment “to promote the free exchange of ideas and the safe and efficient operation of the university,” according to the document, which emphasizes the fostering of free speech and right to assemble but prohibits activities that disrupt teaching, business operations, or providing client services.

The policy was approved in June by then-interim UT president Nagi Naganathan after complaints about how university police handled a protest of Republican strategist Karl Rove’s September, 2014, speech at the main campus’ Doermann Theatre.

Eman Abu Alhana, a pharmacy student, was among protesters last year who held signs condemning the speaker outside the event. She said some students tried to enter the room, but they were stopped by police.

“It was pretty obvious that it was because we had signs,” she said.

She said protesters asked officers repeatedly to produce a policy that backed up their refusal to admit them.

The new policy doesn’t prohibit students from protesting but is still vague, she said.

“[It’s] a step in the right direction, but I think [it] definitely needs to be addressed more clearly,” she said.

UT spokesman Jon Strunk did not respond to questions about whether the policy was created in response to the lecture incident.

He said only that input from the Foundation for Individual Rights in Education and the American-Arab Anti-Discrimination Committee were considered in the policy’s drafting.

“The free exchange of ideas has always been essential to the academic experience at the University of Toledo.

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Data-rigging for Ohio charter-school evaluations involved several employees

From The Columbus Dispatch Records reveal a coordinated effort among Ohio Department of Education staff to falsely inflate evaluations of some charter-school sponsors, possibly in violation of state law, according to an initial review of the documents that were released Thursday.

While emails indicate that multiple agency employees appeared to know of former state Department of Education Director of School Choice David Hansen’s grade-fixing scheme, there was no documentation of their reporting it to higher-ups including state Superintendent Richard A. Ross.

The department released nearly 100,000 pages of documents late Thursday in response to a public-records request made six weeks ago, and The Dispatch is still reviewing them. The documents did not appear to include any communications to or from Ross regarding the matter.

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FOIA site MuckRock launches new efforts to let users track projects and contribute to reporting costs

From Nieman Lab For the past year, Beryl C.D. Lipton has been investigating the private prison system in the United States. She’s a reporter for MuckRock, a news site that covers government transparency issues and also helps its users access government documents.

Lipton has filed about 1,000 Freedom of Information Act requests, and she plans to visit some prisons to continue her reporting.

But between travel costs and fees for records requests, the type of reporting that Lipton is doing is expensive. And readers who are interested in following her work may have difficulty keeping track of all the different requests she’s made and documents she’s uncovered.

To address these concerns, MuckRock plans to debut two new features on Thursday that will make it easier for users to follow specific stories and contribute to reporting costs.

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Kasich: Charter school data-scrubbing records 'coming soon'

From The Columbus Dispatch As reporters awaited the release of records, Ohio Gov. John Kasich said today that state officials still believe the former school-choice director acted alone in scrubbing the data of some charter school sponsors to falsely inflate their grades.

David Hansen resigned from the Ohio Department of Education in July after it was discovered he manipulated the evaluations of some tax-funded, privately operated schools to make their sponsors appear to be succeeding.

Ohio’s major newspapers, including The Dispatch, waited six weeks for the department to release emails and other records which officials have contended show that Hansen acted alone in fixing the grades.

Hansen is the husband of Beth Hansen, Kasich’s chief of staff in the governor’s office until she left to manage the Republican’s presidential campaign.

“There’s going to be a release at some point here ... it’s coming soon,” Kasich said just hours before the release.

“The department is in the middle trying to make sure we have all the accurate data released,” Kasich said at a Statehouse question-and-answer session that followed an economic-development announcement.

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Sunshine law suit against South Range going forward

From Salem News A scheduling order has been established in the case against the South Range school board claiming a Sunshine Law violation.

A hearing on status was held last month in front of Mahoning County Magistrate Thomas Gacse where a mediation conference was set for 10:30 a.m. March 1 and trial to court at 9 a.m. May 3.

Resident Richard Ferenchak filed the complaint on April 8 claiming the board violated the Sunshine Law when it initially appointed Amy White to replace Bruce Zinz, who resigned in February. White subsequently resigned that appointment and the board appointed her again a month later.

Ferenchak and the Youngstown Vindicator criticized the board for violating the Sunshine Law, which prohibits any decisions being made in executive session, after White's nameplate was observed on the board's table prior to the first appointment. Ferenchak had asked that the appointment be overturned and a fine levied against the board for the violation.

The board maintains that no Sunshine Law violation occurred since the vote to appoint White was made in public.

Further complicating the matter, the unexpired term vacated by Zinz is up for election in November, but White will run for one of the full-term seats instead. Ferenchak is one of four residents running for the unexpired term.

School Treasurer Jim Phillips said that he is unaware of how the case will affect the school board and district once it is settled.

Plain Dealer editorial: Ohio Department of Education has to turn over documents in charter-school scandal

Editorial from The Plain Dealer The Ohio Department of Education needs to stop its inexcusable foot-dragging and turn over emails and other public documents requested by news outlets attempting to determine who was responsible for trying to omit from overall charter evaluations the poor grades of online charter and dropout-recovery schools.

The scheme, which was first revealed by Plain Dealer Education Reporter Patrick O'Donnell, would, among other results, have helped the academic standing of charter school organizations in which some large GOP campaign donors have a financial stake.

The Plain Dealer, the Akron Beacon Journal, The Cincinnati Enquirer, The Columbus Dispatch and The Dayton Daily News all made formal public records requests this summer asking for more information about why David Hansen, then the education department's director of school choice and (ironically) accountability, tossed out the failing grades of several charter schools in his evaluations.

Those requests have been pending for weeks with no action so far by the administration of Gov. John Kasich. That must change.

This is no petty matter. Such alterations are against the law and at odds with the best interests of Ohio's youngsters.

If the alterations had gone unnoticed, several failing charters would have erroneously gained a state tax dollars because of their good scores. So, it's important to look closer at this scandal – particularly since the state school board has refused to hire an independent investigator – to determine who made this decision and why.

Ohio School Superintendent Richard Ross has been mum but Hansen, who also happens to be the husband of Beth Hansen, Kasich's presidential campaign manager, resigned shortly after he accepted blame for deleting the grades. Hansen told the State Board of Education in July that he threw out the failing grades of online charter schools because they ignored other successes.

But Hansen's mea culpa shouldn't be taken at face value. Meanwhile, ODE said recently it was still reviewing emails to make sure that they release the right ones.

Stephanie Dodd, a state school board member, told the Akron Beacon Journal that Ross told her weeks ago that the department had already reviewed more than 50,000 emails and determined that Hansen acted alone.

So where are those emails? Turn them over ASAP.

Ohio Supreme Court: Parent cannot view records of alleged child abuse investigation

From Court News Ohio The records related to a child abuse investigation by a children’s services agency are confidential, and the mother requesting the documents did not show good cause to override that confidentiality, the Ohio Supreme Court decided today in a case from Franklin County.

The per curiam decision denies the writ of mandamus requested by Stephanie Y. Clough to force Franklin County Children’s Services (FCCS) to give her access to agency files about the investigation of suspected abuse of Clough’s minor daughter.

Case Background Clough made verbal and written requests to FCCS in spring 2014 to review records about her daughter. After the agency denied her requests, Clough filed a complaint with the Ohio Supreme Court on July 3, 2014, asking for the writ.

She argued that an FCCS document spelling out the agency’s board policies allows her to access and review the content of case records about her and her children. Noting that an FCCS investigation of possible abuse of her daughter was found to be unsubstantiated, Clough stated she was later told the conclusion was going to be changed to “indicative of abuse.” She wanted to find out why the agency altered its decision.

Court’s Analysis The court noted in today’s opinion that the agency’s policy does give adults and children who are FCCS clients the right to examine their case records as long as that access is not barred by law. In seeking a writ of mandamus, Clough had to show the agency had a clear legal duty to provide the records. However, the court explained, a duty does not exist in a mandamus action unless the General Assembly has enacted it in statute. The court concluded that the FCCS internal board policy does not reflect a duty that has been created by the legislature.

In addition, the court reviewed whether public records law applied to the case. A children’s services investigatory record generated from a report of suspected child abuse is explicitly made confidential in state law. Kenneth J. Spicer, a retired judge from the Delaware County Common Pleas Court, conducted a private review of the requested materials for the Supreme Court and determined that, with possibly a few exceptions, the file contained investigatory records of a report of possible child abuse. Spicer stated the file showed that a suspected abuse report had been received, was investigated, and was closed after a decision that the allegations were unsubstantiated. The file indicates the parents were notified.

The court concluded that the bulk of these records fall under the state law making them confidential and therefore exempt from disclosure as a public record.

For the documents in the file that might not be confidential, the court explained that another statute, R.C. 5153.17, opens those records only to the agency, the director of job and family services for the state and for the relevant county, and other people given written permission by the children’s services agency’s executive director.

The executive director may provide access if the requester shows “good cause” by showing that disclosure is in the child’s best interest or that the requester’s due process rights are involved. The good cause must outweigh the reasons for confidentiality, the court pointed out.

“Clough’s argument in support of disclosure is that FCCS did not follow its own policies and procedures in denying her request,” the opinion stated. “This does not qualify as good cause. While her case is sympathetic, and she is no doubt concerned about the investigation of her daughter’s possible abuse, she has not alleged that the child is currently in any specific danger, that her due process rights are in jeopardy, or that there is any similarly compelling reason to depart from the statutory mandate of confidentiality.”

Votes Joining the court’s majority were Chief Justice Maureen O’Connor and Justices Paul E. Pfeifer, Terrence O’Donnell, Sharon L. Kennedy, Judith L. French, and William M. O’Neill. Justice Judith Ann Lanzinger concurred only with the court’s judgment.

Cincinnati Mayor John Cranley: No secret council meetings

From The Cincinnati Enquirer Cincinnati Mayor John Cranley has vetoed a charter amendment that would leave it to voters to decide if the city council can meet in secret – but he isn’t optimistic that his move will keep the issue off the ballot.

That’s because the council needs six votes to override the mayor’s veto, and the issue passed with a 6-3 vote Monday.

“I’ve always been a believer in open and transparent government,” Cranley said after officially rejecting the measure in front of reporters.

“Probably nothing bad happens in executive sessions, but it breeds cynicism and distrust.”

The council overwhelmingly voted Monday to ask voters if the body can meet in private to address certain issues. An Enquirer review of the amendment shows that, if passed, executive sessions would be more limited than what Ohio law allows, but would still keep some information from the public.

Council could discuss:

• The city manager’s performance

• Buying or selling property if the discussion would give others an unfair competitive or bargaining advantage

• Disputes that are subject to court action

• Matters required to be kept secret by law

• Security arrangements

• Some information related to development assistance, such as how much taxpayer money is given to developers.

Councilwoman Yvette Simpson said Monday that some of these issues simply aren’t discussed at all because council members are reticent to talk about sensitive issues in a public meeting.

Simpson was joined in approving the measure by five council members: Amy Murray, Chris Seelbach, Wendell Young, Kevin Flynn and David Mann.

Councilmen Charlie Winburn, P.G. Sittenfeld and Christopher Smitherman voted against it.

This is the seventh time Cranley has vetoed an issue, but the first time that he said he expected his veto to be overturned. He acknowledged that the move was largely symbolic.

“The council often talks about its commitment to public meetings,” he said. “This gives them a chance to change their minds.”

If the issue is put on the ballot, as Cranley expects, he said he hopes that voters shoot it down come Election Day.

Wait for it: Otterbein University complies with records request after nearly three month wait

From Otterbein 360: The Otterbein Police Department, in collaboration with members of Otterbein’s administration, has for the first time fulfilled a records request in full almost three months after an order demanding their release was issued by the Ohio Supreme Court.

The records at issue were the subject of a lawsuit filed by former Otterbein360 news editor Anna Schiffbauer against OPD, which had been withholding the records from the public. OPD and members of Otterbein’s administration stated that Otterbein was not required to release records to the public as a private entity. Schiffbauer’s case said that since OPD serves a governmental function, with officers that have the same authority as their municipal counterparts, they must be subject to public records law. On May 21, The Ohio Supreme Court ruled in favor of Schiffbauer and ordered OPD chief Banaszak to release police records.

Following the decision, Otterbein360 submitted a request for incident reports held by OPD. Initially, Banaszak agreed to comply with the request and released three misdemeanor incident reports at random to demonstrate compliance. OPD redacted only the Social Security numbers of those named in the reports in accordance with public records law.

On June 1, OPD contacted Otterbein360 stating that the request could not be fulfilled because the university was still working to determine what information to release in compliance with state and federal law.

In addition, Banaszak advised that the request was too large and time-consuming to be fulfilled in a reasonable time. Ohio public records law states allows for requests to be denied if they are overly broad. Otterbein360 withdrew its original request.

On Jul 9, Otterbein360 made a revised request, which comprised of 27 incident reports of a serious or otherwise important nature. Banaszak responded to the request stating that the reports would be sent to the Westerville Police Department records department for redactions. Banaszak said four days later that the reports would be ready in a week.

On Jul 29, Banaszak invited Otterbein360 staff to a meeting to explain the university’s reasoning for not releasing the records. In a meeting between Otterbein360 reporter Logan Meyst and Banaszak, Banaszak said the university was still considering federal and state regulations such as the Violence Against Women Act and the Clery Act in deciding what information to release.

“We don’t want to release info unless it’s absolutely accurate. If we release something that violates someone’s rights then obviously we can be liable for that,” Banaszak said.

Banaszak said Otterbein was struggling to obtain legal advice on what information to redact in the reports they released, stating that the Attorney General’s office had declined to provide guidance. Banaszak said Otterbein was seeking legal help but did not specify a date the reports would be released.

Scott Fitzgerald, Director of Human Resources, Title IX coordinator, in an email, said that Otterbein was attempting to balance students’ privacy with the rights of public records requesters.

“Today, Otterbein is in the situation where Clery requires universities to protect the identity of the victim’s name in timely notices to campus of danger by prohibiting putting the victim’s name in the notice yet public record advocates are stating that the record that triggered that timely warning must have the victim’s name un-redacted,” Fitzgerald said, citing the Clery Act.

“FERPA, on its face, does not apply to law enforcement records. There’s absolutely zero FERPA issue here and there’s really no Clery Act issue here, either,” John Greiner, a Cincinnati-based attorney who represented Schiffbauer and other clients in open government lawsuits, said.

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New accounting rule means reporters can learn revenue lost to tax breaks

From The Federation of State PIRGS

In a major victory for government transparency, all states and local governments will now be required to disclose the amount of revenue lost through programs that grant special tax breaks and abatements for economic development. The rule issued by the Governmental Accounting Standards Board (GASB) was the first ever governing such tax expenditures that cost state and local governments an estimated $70 billion per year but often remain undisclosed and have lacked standards for reporting.

“The public needs to know how much these programs cost in order to judge whether they deliver enough to justify the lost revenues. Ordinary taxpayers must pick up the tab when governments issue these tax favors to select companies,” said Phineas Baxandall, Senior Analyst at the U.S. Public Interest Research Group (U.S. PIRG). “Today is a big victory for government transparency, even if it falls short of requiring best practice,” he added.

Many pro-transparency and civic groups were disappointed that the new standards did not require governments to follow the lead of most states and several cities in disclosing which companies have received special tax abatements.

For the past six years, U.S. PIRG has tracked how well each of the fifty states makes data accessible to the public about specific contracts, subsidies and other outlays. The annual Following the Money reports have shown steady progress as states have made more economic development expenditure information available to the public through online tools that allow visitors to search, sort and download the data. A similar U.S. PIRG study, Transparency in City Spending, found major cities are inconsistent in how well they make data about economic development accessible to the public.

"Given that states already publish tax expenditure budgets that often include this data, the new standard will have the greatest impact on local bodies of government: cities, counties, townships, and school boards," said LeRoy, executive director of the nonprofit Good Jobs First, a leading watchdog of economic development subsidies. "We are especially pleased that GASB is calling for public bodies that lose revenue passively due to the actions of other bodies to report such losses. This means school boards will finally have to own up to the huge costs they suffer when cities and counties abate or divert property and sales taxes."

“Today’s decision raises the floor for government fiscal transparency. We hope that it will also spur governments to reach for higher levels of public accountability for economic development programs,” said Baxandall at U.S. PIRG. “This isn’t a Republican or Democratic issue, just a simple matter of government being open and accountable with tax dollars.”

The rule issued today is part of the Generally Accepted Accounting Principles (GAAP), which government entities are required to follow in most states and credit rating agencies typically insist are followed to rate public bonds issued by a government entity. The standards will apply for economic development tax abatements and special deductions for income, sales, and property taxes.  The new standards will take effect for budgets that begin after December 15, 2015, thus making new data available in 2017.

To read U.S. PIRG’s letter earlier this year to the Governmental Accounting Standards Board calling for many of the stronger standards issued today, read here.

Ohio auditor says Beachwoood improperly destroyed pool pass records

From The Plain Dealer Beachwood officials improperly destroyed records showing which municipal workers and City Council members received free pool passes, according to Ohio Auditor Dave Yost's office.

In a Wednesday letter to the city and a resident who had complained about Beachwood's records retention policy, Melissa Crocker, Yost's assistant legal counsel, said the office will examine the city's records retention schedule and the disposal of pool pass logs as part of its next audit.

Read the entire letter below.

Beachwood Law Director Brian Reali said the auditor's ruling simply states the city should review its retention schedule and perhaps clarify some definitions. He said the city already routinely reviews the schedule.

"We respect the opinion of the auditor's office and will study closely his recommendations," Reali told Northeast Ohio Media Group in an email. "As you know, this opinion is just that – an opinion. There is no judgment, award or penalty here."

In July, Reali said council members had been allowed free pool passes as a fringe benefit under a 2000 ordinance, and Mayor Merle Gorden said he occasionally handed out free pool passes to council members who asked for them.

Yet six council members told NEOMG they've never asked for or accepted a free pass to the Beachwood Aquatic Center, at least not for themselves, family members or friends. Some said they gave free pool passes to families facing hardships, businesses or prospective residents. The seventh councilman, Mark Mintz, refused comment.

When NEOMG asked for copies of pool pass logs last month, the city said the records were "transient" and "no longer available."

But Crocker said the city's records retention schedule – a state-approved list of various records and how long the city should keep them – is "deficient" because it fails to mention pool pass records specifically.

The city's schedule defines transient records as telephone messages, calendars, drafts "and other limited documents which serve to convey information of temporary importance in lieu of oral communication." The state defines a transient record as one "whose value is temporary."

Crocker said the pool pass logs "contained information which is greater than transient value, justifying a longer period of retention." The city should revise its records retention schedule "and clearly and comprehensively itemize and define" records with "specific, appropriate retention periods."

Mike Burkons, the Beachwood resident who filed the complaint, told NEOMG he was pleased with the auditor's ruling.

"It was obvious," Burkons said. "You just can't destroy records you don't want the public to have and call them transient."

Burkons said the city had also scrapped records relating to Mayor Merle Gorden's practice of cashing in unused vacation time, a practice council ended earlier this year.

Crocker, in her letter, said Burkons can sue the city for up to $10,000, plus attorney fees, due to the destruction of the records.

Burkons said an attorney has offered to represent him but added that he probably won't sue.

"I've never been in this for financial gain," Burkons said. "I've only done this to change things and they way city officials behave."

Sonny Kim's widow pleads: Don't release video

From The Cincinnati Enquirer The wife of the Cincinnati Police Officer Sonny Kim, who was fatally shot in the line of duty, is pleading with the city not to release a video that shows the aftermath of the shooting.

Local media outlets, including The Enquirer, have asked to review the video recording, which was caught on the dash-cam of the the second officer to arrive at the scene. Ohio law allows the public to view such recordings.

"...for my kids, witnessing their father lying helplessly on the ground will only add to the devastation that they have already felt," Jessica Kim wrote in identical letters to Mayor John Cranley, City Manager Harry Black and Police Chief Jeffrey Blackwell. "Sonny was their rock, strong and protective. They should not have to see a broken image of their father like that."

Jessica Kim, who has seen the video, said "the video clip will not add value to anyone, but instead add an even greater amount of pain."

Black called Kim "a hero in every sense of the word," but acknowledged the the city must abide by all public records laws.

"In this regard, I have asked the Law department to carefully review this matter in order to advise on how best to proceed," Black said.

On the morning of June 19, Kim, 48, was ambushed by Trepierre Hummons, of Madisonville, according to Cincinnati police. Police received a call at 9:03 a.m. about a man with a gun at the corner of Whetsel Avenue and Rose Street. At 9:10 a.m., a second call came in to dispatchers. Kim, a nearly 30-year veteran of the police department and longtime District 2 officer, responded.

It would later come out Hummons made the calls.

Hummons shot Kim, an act witnessed by by Hummon's mother, who lived nearby, police said. She used Kim's radio to call for help. Frantic officers, including Tom Sandmann, hurried to the scene.

Sandmann pulled up and fatally shot Hummons. Sandmann's dash-camera video caught the shooting aftermath.

"The Enquirer is seeking the video to shed light on exactly what happened that morning," said Enquirer News Director Mike Kilian. "There remain many unanswered questions."

The Cincinnati Police investigation is on-going. Immediately after the shooting, department officials gave a brief account of what happened. But plenty of questions remain.

It's unclear how many shots were fired, who fired first, how Kim died and where a probation officer, who has never been named, plays into what happened.

Hummons' father, Ronald Hummons, has publicly said his son didn't lure anyone to the scene of the shooting.

Once the police investigation is completed it will be forwarded to the The Hamilton County Prosecutor's Office, which under state law must review all officer-involved shootings.