Toledo Blade editorial: Hiding public records

Public officials routinely skirt freedom of information laws by claiming that requests for public records are “overly broad.” The Ohio Department of Health used that excuse to try to deflect a request from NARAL Pro-Choice Ohio to gain access to records of department communications with Ohio Right to Life, the state’s most powerful anti-abortion lobby.

The request wasn’t broad at all: It sought records of calls from two phone numbers associated with Right to Life and emails exchanged with the group. NARAL sued the department this year; department officials have agreed — grudgingly — to turn over the records.

The Health Department, and Gov. John Kasich’s administration in general, promote the agenda of anti-abortion groups such as Right to Life. Records of the department’s communications reveal that Right to Life regularly corresponds with department officials about state regulation of clinics that perform abortions.

The Health Department has shut down nearly half of Ohio’s abortion clinics since 2013, when the governor signed a medically unnecessary law that requires abortion providers to secure transfer agreements with local hospitals. Right to Life played an active role in promoting the law’s passage. The Health Department is working to shut down Capital Care Network, Toledo’s only remaining abortion clinic.

Health professionals tend to oppose medically unsupported restrictions on reproductive rights. Last year, Mr. Kasich appointed a health director who does not hold a medical degree or have any expertise in public health — ostensibly a requirement for the job under Ohio law.

But medical truth doesn’t seem to have much salience for state policy makers. The Health Department grants funding to so-called pregnancy crisis centers — anti-abortion groups that dole out medically inaccurate information to pregnant women, such as unfounded claims that link abortion to breast cancer.

Dispensing false information in the guise of medical expertise should be illegal. In Ohio, though, the state sponsors such activities.

In response to NARAL’s records requests, Health Department officials and Ohio Right to Life insist that the group does not get special treatment from the department. Yet the department’s compliance with an anti-choice agenda, and its refusal to cooperate with reasonable public records requests, don’t inspire confidence in its independence.

Of all the problems this episode reveals about the state of Ohio politics, public records law should be the easiest to fix. Abortion controversies aren’t going away, but lawmakers at least must be willing to address loopholes in state law that allow officials to dodge any request they find inconvenient by deeming it too broad.

If NARAL did not have the resources to sue the Health Department — as many citizens don’t — the records it sought would never have seen the light of day. That’s clearly out of step with the intent of Ohio public records law, and ought to be swiftly rectified.

Editorial: Ohio government officials continue to stymie oversight with bogus claim

Editorial from The Columbus Dispatch

It’s good that the Ohio Department of Health finally honored a public records request from an abortion-rights group after months of stalling. But it should not have taken a lawsuit and a pressure campaign from NARAL Pro-Choice Ohio Foundation to shake loose the information.

Though NARAL has withdrawn its lawsuit against the department after receiving records of calls between the health department and anti-abortion group Ohio Right to Life, the latest development highlights anew the need to rein in public officials who deny records requests on the grounds that they are “overly broad.”

In the NARAL case, the organization was looking for evidence of undue influence on the part of Ohio Right to Life and other anti-abortion groups with the Ohio Department of Health, after new state restrictions led to the closing of some abortion clinics. Leaders of Ohio Right to Life didn’t deny that they were in regular contact with the department. Michael Gonidakis, president of the organization, himself said that the health department should turn over the records requested by NARAL, since he had and his staff had nothing to hide.

In addition to being on the wrong side of public-records law in the state, the health department’s refusal to turn over records led to more waste of public resources. It expended time and manpower in responding to NARAL’s suit, and in dealing with hundreds of duplicate requests that were made after the group put a link on its website encouraging supporters to make the same request. At least NARAL had the resources to press for the records through the legal system. Many individuals and smaller media outlets simply can’t afford that sort of fight.

Open-records watchdogs have noted in recent years that “overly broad” in itself has become an overly broad pretense under which public agencies look to deny requests for what should be public documents. This has been enabled by several Ohio Supreme Court decisions that have deemed requests overly broad and allowed custodians of public records to use the term as an excuse.

David Marburger, a Cleveland lawyer who specializes in government-access law, said in an interview with The Dispatch last year that the Ohio Supreme Court “created its own sort of law in governing what makes a records request appropriate” with these “overly broad” rulings. “It has created this sense of entitlement ... that (government officials) don’t have to provide anything to you if they think they can claim with a straight face that court precedents allow them to say the request is too broad,” he said.

The main problem with allowing officials to term requests “too broad” is that it effectively shuts down the ability of the public and the press to act as watchdogs and root out possible wrongdoing. This was the original intent of Ohio’s Public Records Act, which was considered a model for other states when it was passed more than 50 years ago. Since then it has been chipped away by legislative carve-outs and judicial decisions.

Requiring detailed and narrow requests “thwarts the Public Record Act’s fundamental purpose: nothing in the Act requires a requester to know a record actually exists before requiring it,” argued Cleveland lawyer Subodh Chandra in arguing on NARAL’s behalf in it lawsuit. “Indeed, the existence of a record may be the very thing the requester is attempting to discover through the request.”

Enquirer sues SORTA over streetcar information

From The Cincinnati Enquirer The Enquirer filed a Wednesday lawsuit asking the Ohio Supreme Court to force the Southwest Ohio Regional Transit Authority to provide the public with access to documents regarding the operation of Cincinnati's streetcar.

The suit accuses SORTA, a transportation entity in charge of deciding which company will operate the controversial streetcar project, of violating Ohio's Open Records laws by refusing to provide Enquirer reporter Jason Williams with the documents when asked in a March 30 letter.

The Southwest Ohio Regional Transit Authority (SORTA) is following its established Procurement Policies and Procedures Manual which it believes to be in compliance with state and federal law regarding Requests for Proposals.

SORTA sought guidance from the Federal Transit Administration (FTA) regarding its process, and, in a March 23 letter, the FTA confirmed that SORTA should follow its established procedures," a Wednesday SORTA release noted.

SORTA hadn't seen the suit and wouldn't comment further.

Williams filed his request asking to review documents submitted by companies responding to a SORTA request to bid on the estimated $4 million per year contract to maintain and operate the 3.6-mile, $148 million streetcar. Bidding is done in an attempt to encourage competition to control costs.

Continue Reading>>

Editorial: Republicans question Yost's role in sunshine disputes

From The Canton Repository State Auditor Dave Yost launched a program last month that helps resolve public records disputes so citizens and government agencies don’t wind up in lengthy and costly court battles.

Fellow Republicans in the Ohio House tried to dissolve Yost’s “Sunshine Audit” program through an amendment in the $71.5 billion two-year state budget. They question whether Yost, as auditor, has the authority to oversee such a program. Though they pulled this misguided amendment from the budget bill after a groundswell of criticism, they indicated they may revisit the question in coming months.

There’s no need to. Yost’s program helps rectify a major problem with Ohio’s Sunshine Laws — a problem created a few years ago when state lawmakers placed unnecessary caps on the amount of damages and attorneys fees agencies would pay out for violating the law. Those changes in the law may discourage people with valid complaints from pursuing legal action against government agencies or public employees all while incentivizing those agencies to violate Ohio’s Sunshine Laws.

Lawmakers should — but won’t — restore the financial sanctions that were once the teeth of these laws. Regardless, Ohioans and government agencies still need a free program to resolve these disputes and head off prolonged litigation. As auditor, Yost clearly has the right to step in.

The Ohio Attorney General’s Office already offers a mediation program for citizens with complaints against local governments. Yost’s program applies to state agencies. His office will also step in if mediation involving local agencies fails or one party refuses to participate. After reviewing the complaint, giving each side a chance to respond and determining that a violation has occurred, the auditor’s office issues a non-compliance finding. The decisions aren’t binding, but they are an honest attempt to resolve issues outside of a courtroom.

What’s the harm in that?

As he did in calling for a financial audit of JobsOhio in 2013, Yost again appears to be standing up for Ohioans and open government. Instead of questioning Yost’s authority, state lawmakers should be supporting his efforts.

What to say when the police tell you to stop filming them

From The Atlantic First of all, they shouldn’t ask.

“As a basic principle, we can’t tell you to stop recording,” says Delroy Burton, chairman of D.C.’s metropolitan police union and a 21-year veteran on the force. “If you’re standing across the street videotaping, and I’m in a public place, carrying out my public functions, [then] I’m subject to recording, and there’s nothing legally the police officer can do to stop you from recording.”

“What you don’t have a right to do is interfere,” he says. “Record from a distance, stay out of the scene, and the officer doesn’t have the right to come over and take your camera, confiscate it.”

Officers do have a right to tell you to stop interfering with their work, Burton told me, but they still aren’t allowed to destroy film.

Yet still some officers do. Last week, an amateur video appeared to show a U.S. Marshal confiscating and destroying a woman’s camera as she filmed him.

“Photography is a form of power, and people are loath to give up power, including police officers. It’s a power struggle where the citizen is protected by the law but, because it is a power struggle, sometimes that’s not enough,” says Jay Stanley, a senior policy analyst at the American Civil Liberties Union (ACLU).

Continue Reading>>

State health department turns over records to abortion rights group

From The Columbus Dispatch The Ohio Department of Health has turned over public records it previously refused to release to an abortion-rights group regarding health officials’ contact with Ohio Right to Life.

NARAL Pro-Choice Ohio Foundation moved last week to dismiss a lawsuit it had filed against the health department for illegally withholding records, leading the Ohio Supreme Court to dismiss the case today.

Court-ordered mediation between NARAL and state health officials led to the release of the records, NARAL lawyer Subodh Chandra wrote in his motion to dismiss the case.

The health department previously rejected the organization's request for records of calls to telephone numbers associated with Ohio Right to Life and its leaders’ emails to the health officials, saying the request was “overly broad.”

Kellie Copeland, executive director of NARAL-Ohio, said previously that the group sought the records in a bid to determine if Ohio Right to Life wielded undue influence at the health department.

Continue Reading>>

Tips on shooting newsworthy video and protecting your rights

From Kentucky.com It seems almost everyone has a smartphone. That's why we're seeing more videos of police shootings, natural disasters, violent demonstrations, accidents, acts of heroism and other unusual events.

But some smartphone users may not be prepared for the moment when they need to record such an occurrence. The video has to be shot well to show clearly what happened. In addition, the video may have monetary value if the right steps are taken to protect it.

Things to keep in mind:

■ Get an "establishing" or wide shot first that shows the entire scene. Unless something is happening quickly, do not begin with a tight shot of people or the event. Get at least a 10-second shot from enough distance to show all the key elements.

■ Hold the camera steady. This is hard to do with a smartphone, especially if you have to move to keep up with the action. Buy a hand grip that is made for smartphone video. They are inexpensive and small enough to fit in a pocket.

■ Practice with the grip. When it comes time to record the event, you may not be able to get close and will need to zoom in. As the shot gets tighter, the slightest camera movement can ruin the video. The grip will help you hold the camera steady while zooming or panning. Always shoot horizontally.

■ Protect yourself. Try not to let those involved know you are recording them. If someone committing a crime sees you doing so, you could be in danger. Also, police have confiscated cameras and arrested those shooting video even when the person was on public property and out of the way. And don't ever go onto private property.

If the video has financial value, you need to take steps to preserve it:

Continue Reading>>

Could police body cameras cause rollback of public record laws?

From The New York Times

Police departments around the country have been moving with unusual speed to equip officers with body cameras to film their often edgy encounters with the public. But the adoption of these cameras has created a new conflict over who has the right to view the recordings.

In Seattle, where a dozen officers started wearing body cameras in a pilot program in December, the department has set up its own YouTube channel, broadcasting a stream of blurred images to protect the privacy of people filmed. Much of this footage is uncontroversial; one scene shows a woman jogging past a group of people and an officer watching her, then having a muted conversation with people whose faces have been obscured.

“We were talking about the video and what to do with it, and someone said, ‘What do people do with police videos?’ ” said Mike Wagers, chief operating officer of the Seattle police. His answer: “They put it on YouTube.”

... Some state legislatures, though, are coming out against broad disclosure policies. Among a flurry of 87 bills related to body cameras that have been introduced in 29 legislatures, 15 states are moving to limit what the public is allowed to see from the recordings. In some cases, lawmakers have sought to remove the videos from public records laws, according to data from the National Conference of State Legislatures.

“The issue challenges the assumption that everything that happens in public should be public,” said James McMahan, policy director for the Washington Association of Sheriffs and Police Chiefs. “But I don’t know that we want a woman standing there with bruises and scratches and other signs of domestic violence to be posted on YouTube. The instance of her being posted online forever might be a greater crisis than the original incident.”

Continue Reading>>

100-plus local governments respond to Josh Mandel's invitation to post checkbooks online

From The Plain Dealer In the week since they were mailed invitations, more than 100 local governments have expressed interest in posting their checkbooks in a public online database through the Ohio treasurer's office.

One large county, Mahoning County in Northeast Ohio, has formalized its intentions in a partnership with the treasurer's office.

In December, the state's checkbook became searchable online through OhioCheckbook.com. The database contains more than 112 million transactions by state agencies and boards over the past seven years, through June 2014. Expenditures can be searched by agency, vendor or keyword with comparisons to past years as well as other agencies and departments.

That effort drew praise from outside public interest advocates. The database ranked No. 1 among state spending databases in 2014 in the U.S. Public Interest Research Group's annual "Following the Money" report in March.

State Treasurer Josh Mandel touted the idea to promote government transparency. He also has said that shining light on public expenditures likely will also promote more restrained government, one of his personal goals.

Continue Reading>>

Enquirer threatens lawsuit over streetcar bid docs

From The Cincinnati Enquirer The Enquirer on Thursday threatened legal action against the Southwest Ohio Regional Transit Authority because the public agency refuses to release documents that will give taxpayers information about how much it will cost to run Cincinnati's streetcar each year.

In a March 30 public records request, The Enquirer sought documents submitted by companies bidding to run the day-to-day operations of the city-owned streetcar. SORTA denied that request Monday, saying releasing the proposals to the public before awarding the contract could compromise the competitive process.

State law does not allow for such an exemption, Enquirer attorney Jack Greiner said in a letter to SORTA.

"Further," Greiner wrote, "federal law specifically requires such disclosures of public records as commanded by state law. Consequently, there is no basis for your withholding the requested records. If you persist in doing so, The Enquirer reserves its rights to proceed with (legal) action that will seek statutory damages and attorneys' fees."

Continue Reading>>

Ohio Auditor fighting mad over GOP move to kill public-records rulings

From The Columbus Dispatch Ohio Auditor Dave Yost is fighting mad over a move by fellow Republicans in the House of Representatives to prevent his office from ruling on complaints that state agencies are violating public-records laws.

“This came out of the darkness of the night like a brick through the window,” Yost told The Dispatch this afternoon. “This is a full frontal assault on the independence of my office and I’m not going to stand for it.”

A measure in the House GOP state budget rewrite introduced yesterday would kill the “Sunshine Audit" program that Yost unveiled last month during the national Sunshine Week observance of government transparency.

“I don’t know if I would be welcome to testify, but I certainly plan to be heard in every corner of this state. If this can stand, they can protect anybody they want. Just make the Finance Committee of the House in charge of the world,” Yost said.

House Speaker Cliff Rosenberger said the provision makes a clear delineation of the auditor’s duties. “It’s our prerogative that the legislature does so. We’re not really telling him. We’re clarifying, in my opinion.”

The Clarksville Republican added, “There’s a place for everything. I don’t know that that’s the place for the auditor.”

Rep. Ryan Smith, R-Bidwell, chairman of the House Finance Committee, said there are already processes for people to settle public-records disputes.

“I think most people understand the auditor is going to audit public institutions on their finances,” he said. “Public records requests are a whole different animal.”

Yost said he hasn’t had “a lick of communication from across the street” and does not know what GOP lawmakers find objectionable.

“On the merits, someone needs to explain why it is a bad idea to have a quick, easy, cheap resolution to routine public records requests,” he said.

Continue Reading>>

Editorial: Charter reform bill falls short of the goal of full transparency

Editorial from The Vindicator If the Republican majority in the Ohio General Assembly is sincere about fixing the broken charter school system, it will kill the measure now before the House and introduce one that guarantees accountability and transparency.

We have long argued that charter schools should be governed by the same rules and regulations as public schools, seeing as how more than $1 billion has been redirected from local districts to the charters. It has been 18 years since Republicans in the General Assembly adopted school choice as a major plank in their political platform and decided that public dollars should follow the students who move out of public schools.

The GOP, responding to the wishes of major campaign donors, also made sure there would not be any impediments, such as the prying eyes of the taxpayers, to operation of charter schools.

Thus today, the 120,000 students in the 300 schools are at the mercy of the owners and operators. And as Ohio Auditor David Yost revealed recently, the overreporting of attendance is a systemic problem.

Yost’s office conducted an informal audit of 30 community schools and found shockingly low attendance rates at half the schools, Indeed, at the Academy for Urban Scholars in Youngstown, auditors did not find a single student in school. Two months earlier, the school reported 2014-15 attendance at 95.

Attendance, or lack thereof, is just one in a long list of problems that have plagued the charter school industry for years.

That’s why House Bill 2 before the General Assembly is too little, too late.

The measure would prohibit poor-performing charter schools from regularly switching sponsors, require contracts between schools and management companies to be filed with the state and posted online, and push for increased public information about charter school performance.

Democratic state Sen. Joe Schiavoni of Boardman, the minority leader, is pushing for legislation that would clamp down on charter sponsors and operations.

“Ohio’s system of regulating public charter schools is broken. ... There are just too many examples of students being cheated out of a good education and tax dollars being wasted for the General Assembly to ignore the problem any longer.”

State governance

The only way to accomplish this is to change the governance of the industry so that the Ohio Department of Education would exert the same authority as it does with the public school system, and the state auditor would have free rein to regularly audit the books of the charter schools and to conduct special audits when needed.

Republicans can no longer argue that the sanctity of school choice must be preserved and that state government should keep its hands off the charters.

As the list of irregularities grows, the need for transparency and accountability has never been greater. Ohio’s open records law should be applied so taxpayers can track expenditure of public funds.

The creators of the charter school industry in Ohio made a lot of promises about the education of children and the management of taxpayer dollars that have not been kept. Public school districts, including the academically and fiscally embattled one in Youngstown, are losing significant amounts of money to a system that is not a viable alternative.

It’s time for the Republican-controlled Legislature and Republican Gov. John Kasich to make things right.

Justices will decide if Olentangy board met illegally via email

From The Columbus Dispatch The Ohio Supreme Court will determine if the Olentangy school board illegally circumvented open-meetings laws when school board members exchanged emails ahead of an eventual decision.

The court today accepted the appeal of Adam White, a school board member who accuses his colleagues of illegally “deliberating” via email in making a decision out of public view.

White is appealing an appeals court decision upholding a trial court decision that the Delaware County school board did not meet illegally.

Allowing the prior rulings to stand “sets a dangerous precedent which allows all public agencies in the state to avoid the Sunshine Law simply by deliberating electronically, rather than in person,” White argued in his filing.

The case centers on the four school board members — White was excluded — writing one another to authorize a letter to the editor of The Dispatch in response to an editorial criticizing a new board policy White viewed as aimed at him.

After White’s investigation uncovered misspending by two high-school athletic directors, the board passed a policy requiring its members to communicate with employees only through the superintendent or treasurer.

On the day White filed his illegal-meeting lawsuit in April 2013, the board voted to approve the letter to the editor sent six months earlier. A judge subsequently dismissed White’s lawsuit, and an appellate court upheld the dismissal that found the emails were not a prearranged discussion of public business.

The Ohio Coalition for Open Government, Common Cause Ohio and the League of Women Voters of Ohio filed a “friend-of-the-court” brief on Monday supporting White’s appeal.

Cleveland lawyer David Marburger, the author of the brief supporting White, wrote that “the Sunshine Law’s democracy-sustaining purpose cannot survive if a quorum of a public body can retreat to their email inboxes” to avoid scrutiny.

The school board argues that the exchange of emails did not constitute an illegal prearranged discussion of public business.

NFOIC and SPJ combine war chests to fight for Freedom of Information

The Society of Professional Journalists and the National Freedom of Information Coalition are joining forces – and legal war chests – to help citizens and journalists fight for public records. The two groups will band together to help litigants who sue for access to government information. The NFOIC can provide court fees and SPJ can assist with attorney fees. Both organizations also will use their combined national networks of journalists and citizens to apply public pressure to government agencies that flaunt the law.

“This is such an exciting collaborative project, one that will lend significant weight to our collective efforts in preserving our right of government oversight and accountability,” said Barbara Petersen, NFOIC president. “I’m honored to be part of it.”

As part of the partnership approved during national Sunshine Week, SPJ and NFOIC will:

• Have staff and volunteers from both organizations solicit applications and monitor public record battles at the state and federal levels for worthy cases. • Give priority to cases that a) have a strong legal basis, b) have the ability to establish good case law, and c) will help citizens and journalists, regardless of the profession or standing of the plaintiff. • Write or join amicus curiae briefs and/or intervene in cases where appropriate. • Coordinate publicity and advocacy. • Solicit other partners, when merited, such as state coalitions and other national access organizations.

“More than ever, it’s essential for groups to unite in helping citizens fight for government information,” said David Cuillier, SPJ Freedom of Information Committee chair. “Together we are much more powerful against a system that is not weighted in the public’s favor.”

The SPJ Legal Defense Fund was created in 1972 to fight for the First Amendment, primarily for public records and open meetings. Litigants apply for funds and the applications are considered by a six-member committee, aided by SPJ’s attorney. The committee can provide grants of up to $5,000, and larger amounts are considered by the SPJ Board of Directors. The fund has about $75,000 available, and is replenished by donations, interest and an annual auction. In 2014 the SPJ Board approved the creation of an endowed advocacy fund that can also be used for litigation. The endowment currently generates about $4,000 annually.

The Knight FOI Fund was created by NFOIC in 2010 through a grant from the Knight Foundation to help litigants fight for open government. The fund pays for court costs, filing fees, depositions and related expenses, typically $2,000-$3,000 per case. The fund, currently at $444,000, does not pay for attorney fees, nor dictate what attorney is used in the case. The fund stipulates that if the grantee wins and receives an award then they must repay NFOIC. A Litigation Committee decides the merits of applications.

Founded in 1909 as Sigma Delta Chi, SPJ promotes the free flow of information vital to a well-informed citizenry; works to inspire and educate the next generation of journalists; and protects First Amendment guarantees of freedom of speech and press. For more information about SPJ, please visit spj.org.

The National Freedom of Information Coalition is a national organization that supports our right to open government. Forty-four state and regional coalitions are currently connected through the NFOIC, representing a nonpartisan alliance promoting collaboration, education and advocacy for open government, transparency and freedom of information.

Jack Greiner: Arrest record may be erased by court, but not by media

By Jack Greiner, published in the Cincinnati Enquirer Most states have some form of an expungement statute. Subject to whatever conditions the applicable law requires, the statutes allow people to have an arrest removed from their record.

And once that happens, the person can truthfully tell prospective employers or colleges their record is clean. So in that respect, the expungement statutes rewrite official history. But that begs the question – what about “unofficial” but accurate accounts of the arrest? Are they affected by the law?

The United States Court of Appeals for the Second Circuit recently answered that question with a resounding “no.” As a result, a Connecticut resident was not able to compel the Hearst Corporation to erase from its online archives reports of the person’s arrest.

A woman named Lorraine Martin was arrested on multiple drug offenses in 2010. Several local newspapers published accurate reports about the incident. In 2012, the court dismissed the charges against Martin and ordered her record “erased” under the Connecticut Records Erasure Statute.

After the records were erased, Martin requested the newspapers take the 2010 articles off their Web sites. The newspapers refused, and Martin filed libel and false light claims against them. Martin’s theory was, given the erasure, which essentially established that the arrest never happened, the continued reporting on the arrest was false. Call it retroactive libel if you will. But whatever you call it, the trial court wasn’t impressed. It granted summary judgment in favor of the newspapers, and Martin appealed.

On appeal, the Second Circuit agreed the after-the-fact erasure of Martin's arrest could not create any civil liability on the part of media outlets that accurately reported on the arrest at the time it happened. While the statute creates a legal fiction, it does not alter historical fact.

The Second Circuit also found it significant that while the statute erases the record legally, it does not require the state to physically erase the record of related proceedings. Those records may still be used, for example, in a subsequent perjury action. In addition, the police may retain identification records such as photographs and fingerprints related to the arrest.

While the Second Circuit focused on a specific statute, the larger implication is that in the United States, courts are not likely to recognize a “right to be forgotten.”

Last year, a European court made big news when it recognized such a right and forced search engines like Google to eliminate links to accurate, but dated reports of a person’s previous legal troubles. It’s unlikely that concept will be imported here.

Otterbein University says attorney general gave poor records advice

From The Canton Repository A private Ohio college fighting the release of police records says the state attorney general gave it bad public-records advice, something the attorney general’s office disputes.

At issue is a lawsuit filed by a student journalist against Otterbein University asking for arrest records and other information.

Otterbein argues it is exempt from public-records laws as a private institution and federal law requires it to protect certain information about students from release.

In a filing last year, attorneys for the suburban Columbus school noted that private universities don’t have the same government immunity from defamation lawsuits that could arise if they were required to release the names of accused suspects.

The attorneys cite the case of former Xavier University basketball player Dez Wells, who was expelled over what he says was a false rape allegation. Last year, Wells settled his lawsuit, which had claimed Xavier and its president used him as a scapegoat to demonstrate an aggressive response to sexual assault allegations in the wake of two unrelated federal investigations.

Lawyers for the journalist in the Otterbein case say Wells’ lawsuit involved Xavier’s “University Conduct Board,” not its campus police department.

Student journalists at the liberal-arts college have battled Otterbein over the release of records since the campus security force became a full-fledged police department of state-certified officers in 2011.

College attorneys said in a court filing Wednesday they relied “to their detriment” on advice from the attorney general’s office at an open records training event that Otterbein’s police department is not subject to the open records law.

An assistant attorney general gave the advice in answering questions from college representatives, the filing said.

Otterbein’s attorneys aren’t commenting on how they believe that advice affects their case. The school’s security department became a police department in July 2011, and two representatives of the new department attended open records training offered by the attorney general’s office in November of that year.

But a spokesman for the attorney general’s office says it does not provide legal advice during such training. The office makes it clear to people attending the events to consult their lawyers about open records issues, added spokesman Dan Tierney.

Attorney General Mike DeWine believes records held by police departments at private institutions are public, Tierney said.

If the college misconstrued any statements during the training, “it can easily remedy the situation by immediately producing the public records sought in the lawsuit,” Tierney said in an email.

Rep. Bill Patmon, a Cleveland Democrat, has introduced a bill that would put under the open records law information held by police departments established by a private college or university.

Access denied: Reporters say federal officials, data increasingly off limits

From The Washington Post

Stacey Singer, a health reporter for the Palm Beach Post in Florida, was perusing a medical journal in 2012 when she came across something startling: a federal epidemiologist’s report about a tuberculosis outbreak in the Jacksonville area. Singer promptly began pursuing the story.

But when she started seeking official comment about the little-reported outbreak, the doors began closing. County health officials referred her to the state health department. State officials referred her to the federal Centers for Disease Control and Prevention. Even though the CDC’s own expert had written the investigative report, the agency’s press office declined to let Singer speak with him. A spokesman told her it was a local matter and sent her back to the state office in Tallahassee.

Through public records requests, Singer eventually was able to piece together the story of a contagion that had caused 13 deaths and 99 illnesses — the worst the CDC had found in 20 years.

“It’s really expensive to fight this hard” for public information, said Singer, now an editorial writer at the newspaper. She suspects that officials were slow to respond because news of the TB outbreak might have harmed Florida’s tourism industry. “They know that to delay is to deny. . . . They know we have to move on to other stories.”

The stories aren’t always as consequential or as dramatic as a TB outbreak, but Singer’s experience is shared by virtually every journalist on the government beat, from the White House on down. They can recite tales with similar outlines: An agency spokesman — frequently a political appointee — rejects the reporter’s request for interviews, offers partial or nonresponsive replies, or delays responding at all until after the journalist’s deadline has passed.

Continue Reading>>

Mason meeting raises questions of secrecy

From The Cincinnati Enquirer Should local governments be allowed to meet in secret to discuss economic incentives granted to private corporations?

That's the question some are asking after Mason's city council met March 17 in a closed-door session to discuss a $34 million incentives package for consumer product giant Procter & Gamble.

Legal experts say that when it comes to public tax breaks, deliberations of those matters should be subject to public scrutiny.

"When you don't take money from your businesses, you have to make up the funds elsewhere. That clearly is a matter of public debate and is certainly a matter of public interest," said Christo Lassiter, a law professor at the University of Cincinnati.

Some legal experts say the issue could be among the first to call into question the scope of a provision passed in the 2014-2015 state budget that created an exception to the state's Open Meetings Act.

Continue Reading>>

When strike ends, identities of replacement teachers are public record

Editor's Note: This is a very good open government decision. It should also be noted that OCOG contributed an amicus brief, crafted by Dave Marburger, to this case. From Court News Ohio

Five months after a contentious school strike ended, little evidence showed that the replacement teachers faced any serious threats of harm and their names could be released to the teacher’s union requesting their identities, the Ohio Supreme Court ruled Wednesday.

The 5-2 ruling affirms the decision of the Eighth District Court of Appeals, which ordered the Strongsville City School District Board of Education to release the names of the teachers to David Quolke, president of the Cleveland Teacher’s Union. The per curiam decision also upheld the order to pay Quolke $7,973 for court costs and attorney fees.

Strike Starts Strongsville’s 385 teachers and other licensed personnel are represented by the Strongsville Education Association, which filed a notice to strike beginning March 4, 2013. On March 3, the school board began interviewing applicants for replacement teachers at Strongsville City Hall. About 75 to 100 people were chanting, jeering, and cursing the applicants as they exited the building, and school administrators led the applicants out the back door to their cars with a police escort.

Continue Reading>>

Chris Quinn: I wish Sunshine Week could evolve into an annual reminder of what government should be

By Chris Quinn, The Plain Dealer Sunshine Week concluded over the weekend, closing out a week of stories in the media about crumbling access to public records. I suspect most people skip over these stories, seeing the pieces not so much as public affairs reporting but as the annual whining of the media about its eternal battles with government.

Sadly, we in the media somehow have allowed this debate to be framed as the quarreling of two entities, the press and government, rather than a debate about how we choose to govern ourselves. We have let the framers of the debate portray the government as corporeal, as a functioning organism that is somehow apart from us.

I wish Sunshine Week could become an annual reminder that government is not independent of us. It is us. Remember what Lincoln said. Of the people. By the people. For the people. We send people to city halls, Columbus and Washington not to rule over us but to carry out our wishes, to provide the services that we as a community have determined we should provide to each other. Records created in pursuit of these goals do not belong to elected leaders. They are ours -- of us, by us and for us.

Imagine having a meeting in your household in which you elected to prohibit all family members from looking through your front window out on to whatever is happening on your street. Preposterous, right? That's what happens when our representatives vote to close off portions of public records. They are shuttering the windows through which we can see and assess the services we provide each other.

In one of those Sunshine Week pieces I mentioned earlier, Dennis Hetzel, executive director of the Ohio Newspaper Association, noted last week that the original public records law, passed in 1963, was two paragraphs long and contained few exceptions. Today, he noted, the law runs for 10 pages, and state code has at least 129 exemptions.

That's 129 times that our state legislators -- the people who are "of us" -- have closed windows through which we can review how we operate. The Ohio Supreme Court has closed even more windows with odd rulings, like one that lets government withhold records if requests are "overly broad." What that means is open to wide interpretation, and believe me, government interprets it widely, keeping secret no end of public information.

The records law in Ohio has become so complicated that it takes a good book to figure it out. That book, "Access with Attitude," by lawyer Dave Marburger and Kent State University Professor Karl Idsvoog, is the ideal antidote to secrecy and would be great reading for high school civics classes, where we might train future generations about their right to information.

The book is on the bookshelves of many a newsroom, as we in local news organizations do end up being the most frequent wagers of war on the public records front. Our founding fathers, in their infinite wisdom, institutionalized the notion of a free press, recognizing that the republic would not long survive without a protected entity independent of government to demand transparency of those we elect to represent us.

News organizations regularly must resort to lawsuits or threats of lawsuits to persuade elected leaders to obey laws about access. That's part of our duty in this community, one we perform proudly. Because we perform it so regularly, though, people have come to perceive that the records law is for the media, that Sunshine Week is about the media.

What Sunshine Week should be is a time to assess who we wish to be: people who govern ourselves with transparency and openness, or people who are governed by leaders who we allow to shutter our windows on the public services we pay taxes to fund.

Our windows keep closing. Every legislative sessions brings more proposals to close off parts of the public record.  If you think that transparency is the best way to guarantee honesty among those we elect, then the next time a candidate for Congress or the state Legislature is courting you for your vote, ask them to open some of those windows they have been so busy shuttering.

Tell them to let the sun shine in.