Ohio Supreme Court often rules against public records

From The Telegraph-Forum More often than not, the Ohio Supreme Court rules against people requesting public records from government officials.

The Ohio Coalition for Open Government recently found the court ruled against records requests and open meetings 20 times — 62.5 percent of the 32 cases reviewed between July 2010 and July 2015. Researchers did exclude some cases over the four years: ones from prisoners or others with no clear winner.

"The court most often ruled against the citizen or the journalist in favor of the government," said Dennis Hetzel, president of the open-government coalition. The nonprofit organization is associated with the Ohio Newspaper Association.

Among the current judges, Justice Terrence O’Donnell was most likely to deny access to records. He did so 77 percent of the time. Justice Judith French was the justice most likely to vote in favor of parties seeking access, voting against access 60 percent of the time, according to the research. Both are Republicans.

But Ohio Supreme Court officials said they are limited by the laws that legislators pass. If lawmakers say medical records aren't public, the court must agree. Also, the cases that reach the Ohio Supreme Court are often the most complicated or unclear.

"(T)o the extent that the analysis is meant to portray the Court as opposing open government, it is not fair," according to a statement from the Ohio Supreme Court.

Among the cases reviewed were several from the Cincinnati area. In 2013, the court withheld records from a man seeking rents charged at Findlay Market, saying they were trade secrets and did not need to be disclosed. The court also rejected the (Cincinnati) Enquirer's request for the names of two Cincinnati police officers injured in a 2010 motorcycle gang shootout. A person seeking the addresses of retirees in the city's retirement system was also rejected.

In 2009, the Enquirer sued Cincinnati Public Schools, seeking copies of superintendent applications locked in a post office box. School officials later retrieved the applications and provided redacted copies to the Enquirer. However, the Ohio Supreme Court found that the Enquirer wasn't entitled to attorneys fees for the trouble.

But the Ohio Supreme Court did award attorney fees and $1,000 to the Enquirer in 2015. That was after Butler County Prosecutor Michael Gmoser withheld 911 recordings in a 2012 murder. The court also ruled in favor of the Enquirer in 2014, unsealing records related to a Miami University student who posted an offensive flier about rape.

In Richland County, the state supreme court ruled against a person seeking records from municipal and common pleas court clerks, saying the clerks didn't have to produce records they didn't have.

Hetzel said the four-year review is a starting point to evaluate how judges fare on public records questions and how some laws favor government officials over citizens seeking records.

"A lot of the issues involve statutes that could use some improvement," Hetzel said.

Courier seeks "audit" over Findlay's tax practice

From The Courier The Courier on Tuesday filed a complaint with the state Auditor’s Office seeking a “sunshine audit” of the Findlay tax administrator’s practice of granting deferrals and installments of owed and overpaid city income taxes.

The state Auditor’s “Sunshine Audit” program “is to afford individuals who believe they are aggrieved as a result of a public entity’s refusal to release records recourse to seek release without the necessity of protracted and potential expensive litigation.”

The newspaper, citing “the public interest” in a Freedom of Information Act filing on June 8, requested the names of businesses and individuals paying taxes under a deferral or installment plan.

The newspaper has not sought the amounts involved.

The city denied the request, citing the privacy of income tax returns under state law and city ordinance.

The city has said about 40 taxpayers are involved and, generally, were contacted for the deferral or installment plans by city Tax Administrator Andrew Thomas.

The city has said that Thomas has no application, criteria, or other records of the program. The city objected to using the word “program” to describe the practice.

The newspaper and city officials as recently as last week tried and failed to resolve their differences in the matter, according to Courier Editor Peter Mattiace.

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

Editorial from The Columbus Dispatch

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

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

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

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

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

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

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

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

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

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

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

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

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

Vindicator editorial: Open government rulings in Ohio sobering, troubling

Editorial from The Vindicator

There’s bad news and good news on the open-government front in Ohio.

A recently released survey of open- government cases decided by the Supreme Court of Ohio between July 2010 and July 2015 found that of 32 definitive rulings, 12 favored openness and 20 favored restricting or denying access.

The report was compiled by the Ohio Coalition for Open Government, a nonprofit established by the Ohio Newspapers Foundation to focus on open government and public-access issues in the state.

There was a sizeable difference between justices on the percentage of votes against openness, but every sitting justice voted against transparency more often than for it in the OCOG analysis. Only one justice, Eric Brown, who sat on the court for part of 2010, hit the 50 percent mark, voting 2-2 on four cases.

Justice Terrence O’Donnell voted for openness only 23 percent of the time in 30 cases covered by the study. Justice Judith French favored openness 40 percent of the time on the 15 cases she heard. Between French and O’Donnell are Chief Justice Maureen O’Connor and Paul E. Pfeifer, both 38 percent; Sharon L. Kennedy, 36 percent; William M. O’Neill, 35 percent; and Judith Ann Lanzinger, 31 percent.

Those are disturbing statistics, but the Supreme Court had a response. It said the court’s role is to “interpret and apply the public-records access laws passed by the General Assembly [and it] … is not free to use cases to legislate its own views on open government.”

That’s true to a point. But the fact that some justices vote against openness considerably more than others shows that justices are capable of reading the law in different ways. Unfortunately, the OCOG study shows that all the justices read the law well over half the time in ways that help keep information from the public.

That may be an indictment of how the court reads the law or it could be an indictment of the General Assembly and how it has written – and rewritten – public records and open-meetings law.

GOLDEN AGE IS GONE

Ohio has clearly passed its Golden Age of open government, which we’d say began in the 1960s and blossomed with passage of strong public records and open-meetings legislation in the mid-1970s. Exceptions to openness were relatively few and were clearly spelled out. When in doubt, a public employee or official was to err on the side of openness.

It has been this newspaper’s experience that when there was a question of openness to debate, public officials and employees took the opposite tact. What they did and how they decided to do it was their business, and the records they were required to keep were their records – not the public’s. They held that position until they faced the possibility of losing in court – or until they lost in court and had to pay a price.

Had the Supreme Court used the standard of “err on the side of openness” in its deliberations, we’d suggest that even Justice O’Donnell would have gotten it right at least 50 percent of the time.

Not that the General Assembly hasn’t made it easier over the years for the Supreme Court to find ways of siding with government secrecy over the public’s right to know. Amendments to the “Sunshine Law” have added exception after exception to what is or isn’t a public record – from charter school financial records, to concealed-carry permit information, to virtually anything that JobsOhio, a huge government entity, chooses to do behind closed doors.

But whether it is a matter of how Ohio’s elected representatives write the law or how elected Supreme Court justices interpret the law (or a combination of both), the people of the state are losing too many battles for openness. Often those battles are being fought by the press, and too often some people see that as the press acting in its own self- interest rather than fighting for the kind of government that benefits the people over politicians and bureaucrats. And many times, the battles are being fought by private citizens, at great personal expense, both in time and money.

These battles represent a swinging pendulum. And in recent years, it has swung into an arch of government secrecy.

We began this piece by saying there was bad news and good on the open government front, and so here’s the good news. Dennis Hetzel, executive director of the Ohio Newspaper Association, reports a recent string of court decisions that favor open government. That’s good, but a string does not make a trend. It is unlikely that the pendulum will swing back in the public’s favor until voters see government secrecy an inimical to their own best interests and begin voting accordingly.

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

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.