Paper: Blue Ash violated records retention policy

From The Cincinnati Enquirer The Community Press filed a complaint against the city of Blue Ash on June 8 for failing to provide and properly retain public records.

In early May, The Community Press requested a copy of a contract and related documents between the city and Inner Summit LLC, which conducted evaluations and questionnaires of senior staff members regarding key competencies and skill areas.

The city did not provide the records. Assistant City Manager Kelly Harrington said the city did not have a contract with Inner Summit for the project. Harrington said the city classified the completed questionnaires and result reports as notes, because they were shared only with employees and not kept at city offices.

Jack Greiner, attorney for The Community Press, stated in court documents that the city violated its record retention schedule and the Ohio Revised Code.

“Ohio law defines a record as any document created or received by a public office that documents the functions, operations or other activities of the office. Performance evaluations of senior staff members of the city of Blue Ash obviously are covered by this definition,” Greiner said in a comment about the lawsuit.

Blue Ash Community and Public Relations Coordinator Mary Grace Fitzgerald said the city was disappointed to hear about the lawsuit.

“No documents related to this case, public or otherwise, have been destroyed. The city always meets its obligation under the Ohio Public Records Act, fulfilling hundreds of requests each year. What The Community Press is currently seeking are personal notes, which are not matter of public record. The Community Press is not entitled to these notes under Ohio law,” Fitzgerald said.

Blue Ash provided a proposal between the city and Inner Summit.

The 360 Feedback evaluations were conducted in 2014 and 2015 of Harrington, City Manager David Waltz, Parks and Recreation Director Chuck Funk, Police Chief Paul Hartinger, Public Works Director Gordon Perry, Treasurer/Administrative Services Director Sherry Poppe and Fire Chief Rick Brown, according to the proposal. It included a cost of $5,600.

“And as a matter of public policy, tax payers should be able to review the performance of employees who are paid by those very tax dollars. Why Blue Ash would try to hide that information is a mystery,” Greiner said.

The Community Press is requesting the court award a forfeiture of $1,000, have Blue Ash pay attorney fees court costs and award any other relief it is entitled to.

Blue Ash has yet to file a response to the complaint.

Records denials block agency’s oversight

From The Columbus Dispatch Those of us who fight public records battles were struck by how the Ohio Department of Rehabilitation and Correction started messing with the Correctional Institution Inspection Committee, which has the statutory duty of, well, inspecting correctional institutions.

After years of few problems, Reporters Alan Johnson and Randy Ludlow discovered that last fall the state agency started denying even routine records requests with language similar to that used when state officials want to keep the general public in the dark.

For instance, the department denied use-of-force records until the investigation was complete — a dubious rationale to hide information from the public, much less the group charged with investigating such things.

Corrections officials wouldn’t even convert information kept by fiscal year into calendar year. That probably conforms with the letter of the law, but really?

A request for “cost-savings initiatives” was deemed too vague to answer. The same response came when the committee asked for any action plans to fix problems pointed out in earlier inspection reports.

Still, one of the all-time take-the-cake responses came when the panel asked for any positive points that prison officials wanted in the report.

They declined, saying the request also was too “vague, ambiguous.”

Ohio attorney general launching new website, initiative to protect consumers

From The Akron Beacon Journal Ohio Attorney General Mike DeWine on Friday announced a new website and media campaign to educate consumers against scams.

The new site, www.ohioprotects.org, will be a one-stop shop for consumers to learn about scams, research businesses and file a consumer complaint. It will also connect to the attorney general’s site, but is more focused on consumer needs, DeWine said during a morning news conference to announce the new initiative.

The agency is using $2 million, money the agency has received from lawsuit settlements, for the initiative. It will include three video commercials highlighting scams and will air in all Ohio markets in various mediums, including television, online, radio and cinema ads, DeWine said.

The ads take a humorous spin and highlight that not all scammers are as obvious as portrayed in the commercials.

The three types of scams highlighted include:

• The computer-repair scam: A caller will say there’s a problem with your computer and they want access to fix it. But instead, the scammer will take information from your computer and possibly add a virus to the computer to make the consumer pay to remove it.

• The IRS scam: A caller threatens that the IRS will be suing the person or threatens some other sort of action for money. Variations also include people pretending to be from other law enforcement agencies.

• The contractor scam: The person will ask for money up front or a significant amount and not complete the job.

“While we are very aggressive in trying to prosecute people who commit scams and have done that relatively extensively, the sad truth is that for many people, once the scam artist has been successful and taken money from them, they will never see [that] money again,” said DeWine, who acknowledged that the advertisements and website do not include his name. DeWine, who has not officially announced if he will run for governor in 2018, but confirmed he is interested, said that was a conscious decision to leave off his name.

DeWine did, however, say the longer he’s been attorney general, the more he’s realized he should use his “bully pulpit” to educate consumers about these scams, because there are still many people who are caught off guard and fall for them.

“This initiative will help Ohioans understand how scams may not be obvious at first and how the attorney general can help them,” he said.

DeWine was joined at the news conference in Columbus by representatives of the Ohio Chamber of Commerce, Better Business Bureau and AARP, who all praised the effort to educate consumers.

“If it works the way we hope it works, there will be fewer Ohioans who are getting ripped off,” DeWine said. “We want fewer victims.”

Mark it done: Cheap, quick public-records appeals

From The Columbus Dispatch Some people not prone to hyperbole are praising the General Assembly’s unanimous -- and long-needed -- passage of a bill leveling the public-records playing field between government and citizens.

Senate Bill 321 authored by Senate President Keith Faber, R-Celina, gives Ohioans a low-cost method to potentially leverage loose improperly withheld records without the generally prohibitive cost of hiring a lawyer and filing a lawsuit.

For the mere cost of a $25 filing fee, an Ohioan who believes a governmental entity is illegally withholding public records can file a complaint with the Ohio Court of Claims. The case will go to mediation to see if it can be quickly resolved and, if not, a judge will issue a binding ruling.

“It’s big,” said Dennis Hetzel, president of the Ohio Coalition for Open Government and executive director of the Ohio Newspaper Association.

“Right now, many citizens and organizations give up because they can’t afford the time and cost of litigation” to pry public records away from governmental entities with tax-paid lawyers. “In 90 to 95 percent of the disputes, the law is pretty settled, so this should expedite getting records."

Mark Weaver, a Columbus lawyer and Sunshine law expert, took to Twitter to proclaim: “This is easily the biggest change to Ohio public records law since I started practicing in this area in 1995.”

The bill also tinkered with the recovery of legal fees by citizens who sue to obtain public records, notably casting aside a Ohio Supreme Court ruling that government can duck the payment of opponents’ legal bills by turning over records after they have been sued, but before a court or judge issues a ruling.

Other changes open new paths to the recovery of legal fees in public-records litigation, but one change makes them more difficult to obtain. An award of attorney fees remains unusual in public-records cases, even when citizens prevail over public officials acting in bad faith.

A separate bill allocated $500,000 to cover the costs of the new duty assigned to the Court of Claims.

As its Sunshine rulings emerge, Ohioans seemingly will have more legal backup to cite in arguing for the upfront release of records. Court of Claims rulings still can be appealed in other courts by the losing side.

The law will take effect 90 days after its signing by Gov. John Kasich.

Complaints of government fraud often kept confidential

From The Columbus Dispatch Ohioans who want to check out their school district or city won't learn much from a fraud-complaint database maintained by Auditor Dave Yost.

Since lawmakers mandated the list — and limited, specified information — be placed online in 2012, the auditor's office has received nearly 2,500 complaints.

However, nearly 1,500 of the complaints, or 59 percent, are considered confidential by Yost's office since they involve investigations, both current and completed.

Every complaint marked as "in progress" or referred to another agency for a closer look reveals nothing about which governmental entity is involved or the nature of the suspected wrongdoing.

"While we are strong advocates for transparency, we also have a responsibility to follow state law governing law-enforcement records and protect information that must be shielded from disclosure," said Ben Marrison, Yost's spokesman.

The fraud-reporting program that allows tips to be submitted online or through phone calls and emails has led to millions of dollars in audit findings for recovery, criminal convictions and civil actions, he said.

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Why open-government advocates are feeling good about the news from Ohio

From The Columbia Journalism Review Here comes the sun,

Here comes the sun, and I say,

It’s all right.

George Harrison could have written those words about Ohio in recent weeks, as a pair of legal developments have called attention to freedom-of-information issues in the Buckeye State and promise to make state and local government more open.

As one of my friends in the legal world there put it, “Not sure who flipped the switch, but it feels like Sunshine Week … right now.”

First, Ohio Senate President Keith Faber, a Republican, introduced a bill last week empowering citizens to challenge public-record denials without the need for a lawyer by paying $25 for the Ohio Court of Claims to resolve the dispute. One of its judges would do so after a special master mediated the dispute and issued a recommendation. Faber told The Columbus Dispatch that he expects the entire process, from start to finish, would take no more than 45 days. (Alternatively, citizens could still file a traditional lawsuit.)

The program would likely replace others operated by the Ohio Auditor and the Ohio Attorney General. I discussed them a year ago when the auditor, Dave Yost, a Republican and a former reporter for the long-defunct Columbus Citizen-Journal, announced that his office would start taking complaints about public-records violations by state agencies. The Republican-controlled legislature tried unsuccessfully to kill the program, arguing that it wasn’t the auditor’s role to monitor public-records law. Eventually, the legislature blinked and Yost went ahead with his program, called Sunshine Audits.

Meanwhile, the attorney general’s program offers a free mediation service as an alternative to litigation. Its shortcoming, though, is that it accepts only complaints involving local government agencies, because the attorney general’s office acts as legal counsel to state agencies.

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Why won't Ohio EPA answer reporters' questions?

By Alan Miller, The Columbus Dispatch It said: “Ohio EPA officials would not agree to an interview for this story.”

Unfortunately, it is not unusual.

The story was about how bright green algae already is blooming in Grand Lake St. Marys in western Ohio, and that the Ohio Environmental Protection Agency had awarded the city of Celina an $8 million grant to improve its drinking-water treatment plant.

The grant and the improvements are needed largely because of the algae. And that grant is on top of roughly $20 million the state already has spent in recent years trying to clean the lake, which is filled with toxic algae that grows in part because of fertilizer runoff from properties in the watershed — primarily farms.

So why would EPA officials not agree to an interview? And why should you care?

Reporter Laura Arenschield first contacted the agency’s public information office a week and a half before her deadline. She asked to speak with someone who had been working on Grand Lake’s water issues.

The EPA is loaded with experts on all aspects of environmental science and policy, but sources tell us that they and at least some of their counterparts at the Ohio Department of Natural Resources have been forbidden to talk with the media.

Instead, we are asked to work with “media relations managers” or “public information officers,” some of whom are helpful and some of whom are not. And virtually none of them are experts in environmental science or policy. In fact, sometimes they give us information that is flat out wrong. We do fact-checking and find that their “facts” are incorrect.

Clearly, if you were seeking information about toxic algae affecting a public water supply, you’d want to speak with an expert, not a middle man with a layman’s knowledge of the topic. And we are working on your behalf, so we push for access to experts and accurate information.

In this case, even the public information person wouldn’t agree to an interview with Arenschield, and instead said that she should provide questions in writing so that they could consider them.

Here’s the problem with that: It comes with no promise of answers, or accurate answers, or answers in a timely manner — or that we would have the opportunity for follow-up questions. And follow-up questions are important for many reasons:

We want to make sure we clearly understand the answers, and we sometimes need clarification. Sometimes, spokespeople, and even experts, use jargon or unfamiliar terms, and we need to press for clear answers to ensure accuracy. And sometimes, they are purposely vague, seemingly to avoid answering the question. When that happens during an interview, we can look them in the eye and know for sure — and call them out as needed.

But when these taxpayer-funded public information officers won’t even get on the phone to hear the question, it is clear that they and their bosses in Gov. John Kasich’s administration are being obstructionists and really have no interest in providing information to the public.

Our goal is to write accurate and fair stories. We will seek to write those stories with or without agency officials. Their unwillingness to cooperate will not cause us to drop the story, as we suspect they sometimes hope.

In this case, because Arenschield received no help from the agency funded by your tax money, she sought and obtained information from expert voices from outside the agency.

This is a long-standing problem with the Ohio EPA. In an episode of this theater of the absurd last year, Arenschield showed up at a public forum to ask questions of some EPA experts on the panel. A school student in the room asked a question and received an answer from the experts, but when Arenschield followed up with a question, a public information officer held up a hand and stopped her mid-sentence, telling her that she was not allowed to ask questions of the experts at a public forum.

As Arenschield says, “The EPA has some really smart people working for it. Limiting public access to these experts is very troubling.”

And she says that not because it makes her job more difficult, but because you, the public, deserve to hear from the experts you are paying to do those jobs.

Ohio Supreme Court: Details of legal work done by outside firm for city not public record

From Ohio Court News When attorney-fee billing statements with detailed information about the tasks undertaken by a law firm representing a city are intertwined with summaries of the legal work performed, the detailed information is not a public record, the Ohio Supreme Court ruled today.

The Supreme Court voted 5-2 to affirm a Ninth District Court of Appeals decision to release redacted copies of invoices from a law firm representing Avon Lake to James E. Pietrangelo II. The records are connected to pending litigation between Avon Lake and Pietrangelo. In a per curiam decision, the Court majority reasoned that Pietrangelo may acquire information useful in his litigation strategy against the city if provided more details than what the Ninth District permitted to be released.

In a dissenting opinion, Justice Sharon L. Kennedy wrote that only the narrative summary portion of the bills describing the work the firm did can be withheld and that Pietrangelo is entitled to more information as well as damages from Avon Lake.

Detailed Information Sought Pietrangelo requested from the city and its law director the invoices from a law firm for services it rendered concerning his lawsuit. The city provided copies of invoices with the name of the firm, the general matter for which services were provided, the date of the invoice, the total fees billed for the period, and itemized expenses.

The city redacted the remaining information on the invoices citing exemptions for attorney-client privilege and attorney-work product. The information that was redacted included narrative descriptions of the particular legal services rendered, the name of each attorney in the firm providing services along with the service provided, the time spent, the billing rate, the total number hours billed, and the total fee attributed to each attorney.

Pietrangelo filed a writ of mandamus with the Ninth District to compel the city to provide unredacted invoices and requested statutory damages and attorney fees. Pietrangelo and Avon Lake both filed for summary judgment, but the Ninth District determined it could not side with a party without more information and ordered the city to file unredacted copies of the billing statements for the judges to review under seal.

After review, in March 2015 the Ninth District concluded the city disclosed all the records not exempt from disclosure by the Ohio Public Records Act, which is R.C. 143.43, except for one portion. The Ninth District found the part of the invoice titled “professional fee summary,” that described the hours, rates, and money charged for services was not exempt. It ordered the city to provide Pietrangelo with copies of the billing statements that included the professional fee summary.

The Ninth District denied Pietrangelo’s request for the fully unredacted records plus damages and attorney fees. He appealed to the Supreme Court, which agreed to hear the case.

Extent of Attorney-Client Privilege at Issue Citing its 2011 State ex rel. Dawson v. Bloom-Carroll Local School Dist. decision, the Court’s opinion explains that narrative portions of itemized attorney billing statements containing descriptions of legal services are protected by attorney-client privilege and are not public records.

Pietrangelo argued that based on the Court’s 2012 State ex rel. Anderson v. Vermillion decision he is entitled to all the dates legal services were performed along with the hours and rates of services, which is more than what is provided in the professional fee summary. The Court in Anderson stated that “the general title of the matter being handled, the dates services were performed, and the hours, rates and money charged for the services,” on an attorney billing statement need to be disclosed.

The Court explained that Anderson was the former mayor of Vermillion and was seeking the billing statements regarding the legal services provided to the new mayor. His entire request was denied. The Court ordered Vermillion to turn over all of the billing statements, ruling only the narrative portions were exempt from the public records act by attorney-client privilege.

Avon Lake argued the situation with Pietrangelo is similar to the Dawson case where a parent sought billing statements for legal services provided to the school district regarding pending litigation between the district, the parent and her children. The district provided summaries with the attorney’s name, invoice total, and the matter involved, but withheld the actual invoices because they contained confidential information.

The Court allowed the district to withhold the invoices because the information in the invoices was “either covered by attorney-client privilege or so inextricably intertwined with privileged materials as to also be exempt from disclosure.”

“Like Dawson, the records that Pietrangelo seeks relate to the pending litigation between the parties. If disclosed, Pietrangelo may acquire information that would be useful in his litigation strategy against the city, whereas in Anderson, any harm from disclosure of attorney-client communication was remote and speculative,” the Court stated. “To the extent that Pietrangelo requests the dates, hours, and rates not identified in the professional-fee summary, they are inextricably intertwined with the narratives of services that are privileged materials. Such information is exempt from disclosure.”

Pietrangelo also sought $1,000 in statutory damages and attorney fees because the Ninth District found the city did not fully comply with the public records law. The Court affirmed the Ninth District’s denial of Pietrangelo’s request because Avon Lake reasonably believed it was entitled to withhold the information it did.

Chief Justice Maureen O’Connor and Justices Paul E. Pfeifer, Terrence O’Donnell, Judith Ann Lanzinger, and William M. O’Neill joined the opinion.

More Disclosure Required, Dissent Maintains In her dissent, Justice Kennedy stated she would order the redaction of only the narrative services information and release all the other information on the billing statements to Pietrangelo in accordance with the Ohio Public Records Act.

She further disagreed with the majority’s conclusion that the relevant distinction between Dawson and Anderson regarding what information is subject to disclosure is whether litigation is pending between the record requestor and the government entity. Instead, Justice Kennedy wrote that the fact the records requestor is involved in litigation against the government body should have no bearing on whether the records are public.

“Whether a public-records requestor and a government entity are engaged in litigation is irrelevant to the question of whether the information in an itemized attorney-fee billing statement is privileged and exempt from disclosure. Instead, our case law mandates the proper focus is on the information sought and whether that information is privileged,” she wrote.

The relevant distinction between the two cases was that the school board in Dawson reduced the nonexempt information to a summary and released it, whereas the city in Anderson denied the request and failed to provide an alternative record.

Justice Kennedy recognized that the narrative portions of a billing statement containing descriptions of legal service are protected by the attorney-client privilege and not subject to disclosure. She explained that the billing statements at issue contain summary information on the first two pages, and that all subsequent pages contain four independent columns divided into the categories of date, name, services, and hours. Each billing statement concluded with the total number of hours invoiced, a professional fee summary, disbursements and expenses, and a total invoice amount.

She wrote the majority’s reliance upon Dawson to conclude that the date, name, and hours information was inextricably intertwined with the narrative of the services was disingenuous. She noted that Dawson offered little discussion of how the billing statements were constituted, whereas the format used in the statements to Avon Lake separated the information about the attorneys providing the services and the hours billed so that they “are not intertwined with the narrative services column.”

Justice Kennedy reasoned that the ability to redact the narrative services column mandated all remaining portions of the billing statements be released. By affirming the appellate court's decision not to release the remaining non-exempt portions of the billing statements the majority created a new “redundancy” exemption not authorized by the General Assembly she concluded.

Justice Kennedy would have also granted Pietrangelo damages because after Anderson decision it should have been clear to Avon Lake what information in a billing statement was privileged and what must be disclosed.

“Subsequently, no well-informed public office could reasonably believe that any portion of an attorney-fee billing statement, other than the narrative description of the legal services performed, is subject to redaction,” she wrote.

Justice Judith L. French joined the dissent.

2015-0495. State ex rel. Pietrangelo v. Avon Lake, Slip Opinion No. 2016-Ohio-2974.

Cleveland City Hall ignores own promises to share RNC permit applications

By Mark Naymik, Plain Dealer City Hall has reneged on a promise.

For three weeks now, the city has ignored written and verbal public records requests from cleveland.com for copies of permit applications from people who want to use streets, sidewalks and parks during the Republican National Convention that runs from July 18 to 21.

This is confounding because top-level officials in the administration of Mayor Frank Jackson had agreed to share the permits on a weekly basis.

The city arranged a conference call for me in mid-April with a representative of the law department and with Valarie McCall, the city's chief of government and international affairs and Jackson's point person on RNC matters. During the call, McCall assured me that the city would be forthcoming with permit information. She also said she saw no reason why the city couldn't provide the information every week.

The city delivered one time.

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Knight, Columbia commit $60 million to launch digital-era First Amendment center

From The Columbia Journalism Review The Knight Foundation and Columbia University today announced the creation of a new center that will use research, education, and litigation to advance First Amendment rights in the digital age. An independent 501(c)(3) nonprofit organization, the Knight First Amendment Institute at Columbia University is backed by $60 million in funding—and it is launching at a time of growing concern about the First Amendment’s application to new technologies.

Knight and Columbia will contribute $5 million each in operating funds and $25 million each in endowment funds, according to a press release announcing the effort. The institute will use the funds to work on court cases that present opportunities to define—or redefine—free-expression principles, with an emphasis on digitally oriented cases. The plan also calls for research, publications, and events to educate the legal community on emerging First Amendment issues.

There’s no hard timeline for the institute’s opening, but a search is ongoing for a director, said Lee C. Bollinger, president of Columbia University. The institute is expected to take shape in the coming year, with a board that will include faculty from Columbia’s law and journalism schools and people from outside the university.

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Editorial: A $611,375 lesson on open meetings in Putnam County

Editorial from The Lima News Anything worth doing is worth doing right.

It’s a million dollar piece of advice, or at least $611,375 — and counting — for the Putnam County commissioners.

A visiting judge recently ordered Putnam County must pay $611,375 worth of legal fees in the ongoing Road 5 case. Back in 2012, the commissioners decided to use eminent domain to grab 10 feet on either side of Road 5 between Pandora and Leipsic, making a stretch of 11.2 miles 24 feet wide instead of its previous 20 feet.

Some landowners along the path objected, saying they didn’t want the extra truck traffic that would come with the wider road.

Unfortunately, the commissioners didn’t follow the Ohio’s laws to the letter and intent of the law. They skipped a few steps along the way, and the 3rd District Court of Appeals ruled in 2014 the commissioners violated Ohio’s Sunshine Laws.

“Ignorance appears to have been bliss with this board,” Visiting Judge Dale Crawford, of Franklin County, wrote in his ruling.

So what exactly did Putnam County get for this $611,375 payout? More accurately, it’s what the public didn’t get. The rules included $500 fines for each of the 13 times the commissioners skipped proper procedures involving public meetings:

• The commissioners didn’t have a written rule with a general policy regarding meeting notices.

• The county didn’t properly notify each landowner about the meetings.

• The county didn’t keep full and accurate minutes of the meetings.

• The commissioners improperly entered executive sessions on Feb. 16, 2012, and April 5, 2012.

• The commissioners also didn’t have minutes from meetings with the county prosecutor Feb. 21, 2012, or July 12, 2012.

The testimony of one commissioner during a hearing March 30 showed the judge the commissioners just didn’t understand Sunshine Law well enough. And that’s sad in Putnam County, where all three sitting commissioners have been re-elected at least once.

It’s especially sad in Putnam County, which had to pay $5,000 in damages and $31,399.74 in attorney fees in 2013 for 17 violations of Ohio’s Sunshine Laws involving the board of elections, including eight illegal executive sessions.

Obviously we have a stake in the game when it comes to governments operating in an open and fair way. It’s our job to tell you what’s happening, and we just can’t do that in closed-door meetings with no minutes kept. Executive sessions have limitations on how they can be used. They’re not just a tool to exclude the public when things get tense.

Residents of Putnam County should be equally frustrated, though. This $611,375 payout is a sizable chunk of money that could be better spent securing the county, paving the county’s roads or investing in better systems for county agencies. Instead, this money — your money as a taxpayer — will line the pockets of lawyers.

Sure, the commissioners could decide in a public meeting Tuesday to appeal. They’ll likely lose that too, since they’re in an indefensible position. They ignored the laws, and now they’ll have to pay the penalty, with your taxpayer dollars.

The cash register is still cha-chinging on this mistake, too. About half a dozen property owners still haven’t been paid for their property, although money has been set aside in escrow for what the county believes it will pay those landowners who didn’t accept the county’s original offers.

It’s too late to return Road 5 to its previous condition, as the appellate court noted, it would be a “tremendous waste of public resources.”

Public officials everywhere need to read the Sunshine Laws carefully to understand what they can and can’t do. Those laws are there for everyone’s protection. Yes, they can make government a bit slow and tedious, but that’s by design to make sure you’re not making another $611,375 mistake.

Dispatch editorial: Court's decision favors sunshine

Editorial from The Columbus Dispatch

Last week, the Ohio Supreme Court issued a crucial ruling to ensure public access to the discussions and decisions of governmental bodies such as school boards, city councils and the like. Had the ruling gone the other way, Ohio’s elected officials would have had a virtual carte blanche to conduct public business in secret.

In White vs. King, the court ruled that email discussions conducted by a majority of the Olentangy Board of Education constituted an illegal private meeting to discuss public business and take a decision on action.

The case dates to 2012, when school-board member Adam White independently investigated two district athletic directors and found that they had made improper expenditures. As a result, one director resigned and both were required to repay the district.

Unhappy with White’s action, four of his colleagues approved a policy requiring board members to seek permission of the district superintendent or treasurer before communicating with other district staff members. Shortly thereafter, The Dispatch published an editorial criticizing the board for putting a leash on board members, saying that board members “ought to be free to seek out firsthand knowledge of how their district is performing. Boards would be better advised to make free communication the policy, and then deal as needed with any problems that might arise.”

White’s colleagues decided to send an official board response as a letter to the editor. But they did not discuss this and make a decision in a public meeting, as required by law. Instead, they, the superintendent, and several other members of the district staff conferred about and composed the letter entirely via email, leaving White out of the process. He filed a lawsuit alleging that this was an illegal meeting of the board that violated Ohio’s Open Meetings law. Apparently rattled, White’s colleagues held a public vote to retroactively ratify the letter to the editor and to deny that they had violated Ohio’s open-meetings laws, actions that indicated nervousness, if not outright guilt.

But two lower courts ruled against White, arguing that conducting business by email did not constitute a “meeting” under state law. Last week, a solid 5-2 majority of the Supreme Court reversed the lower courts, finding that the email consultations and decision were indeed a meeting. The high court ordered the trial court to reconsider the case consistent with this ruling.

Had the Supreme Court affirmed the rulings of the lower courts, the result would have been dire for the right of the public to monitor the actions of government. As attorney David Marburger wrote in a friend-of-the-court brief, had the lower-court rulings been allowed to stand, all public bodies would be free to do what the Olentangy school board did.

“Public bodies, by design are policymakers,” he wrote. “If they can deliberate and decide issues via email, then later go through the sham exercise of ‘ratifying’ those earlier decisions, then the Sunshine Law is, as a practical matter, a dead letter…”

Marburger is right, and the importance of this ruling by the court can’t be overstated. It is possible that much public business already is being conducted by elected officials via email, phone, text and other forms of communication. If so, those officials now are on notice that this is illegal. And those who suspect this is happening and want to bring it to light now have the law on their side.

White, the Olentangy school-board member who brought this lawsuit, not only has served his school district well, he has benefited all Ohioans.

East Liverpool board meeting over almost before it starts due to legal ruling

From The Morning Journal Within minutes of convening in special session Wednesday night, the city school board adjourned after the treasurer said a proposed executive session would be illegal.

The meeting had been called by board members Patricia Persohn and Richard Wolf to consider complaints against public employees, specifically complaints made by Liverpool Township Police Chief Jayson Jackson against Superintendent Melissa Watson, buildings and grounds Director Sam Halstead and board member Bill Cowan.

Wednesday's printed agenda revealed the purpose of the meeting was to meet and discuss with ex-Steubenville Municipal Court judge John Mascio Sr. the scope of the investigation and the terms and conditions of his proposed hiring as investigator into Jackson's complaint.

Mascio was present in the audience.

When the meeting convened, Wolf moved to enter executive session to discuss Jackson's complaint, inviting Mascio to join the board, but Treasurer Kathy Jo Laughlin spoke up, saying the closed-door session was not allowable, according to the district's attorneys.

She referred to case law provided by attorneys, stating, "You didn't specify in your meeting notice that you were going into executive session," to which Wolf replied, "You can go into executive session at any meeting," but Laughlin replied, "Not according to law."

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Ohio Supreme Court says government bodies cannot conduct public business in private via email

From The Plain Dealer The Ohio Supreme Court ruled Tuesday that private prearranged discussion of public business, whether in person or electronically, is a violation of the Ohio Open Meetings Act if the discussion involves a majority of a public body's members.

In a 5-2 ruling, the court ruled that email correspondence between four board of education members and the school superintendent from the Olentangy School District in Delaware County constituted public business. Together, via email, the prepared a response to an editorial in The Columbus Dispatch that they found displeasing.

The fifth member of the school board appealed the action to the Supreme Court after his opening meetings lawsuit was dismissed at trial level and his appeal was rejected by the Ohio Fifth District Court of Appeals.

Justice Terrence O'Donnell, writing for the majority, wrote that state law requires that "(a)ll meetings of any public body are declared to be public meetings open to the public at all times." A meeting, under the Ohio Revised Code, is any prearranged discussion of the public business by a majority of its members.

"Nothing in the plain language of (the revised code) expressly mandates that a 'meeting' occur face to face. To the contrary, it provides that any prearranged discussion can qualify as a meeting," O'Donnell said.

A distinction between in-person communications and electronic conversations is a "distinction without a difference," O'Donnell wrote. Allowing public bodies to avoid the requirements of the Open Meetings Act by discussing public business via electronic communications would subvert the law.

One-on-one conversations would not be affected. But if the conversation includes a majority of a public body's members, the Open Meetings Act should apply.

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Dispatch editorial: Open-records bill is a winner

Editorial from The Columbus Dispatch

An open government is a more honest and efficient government. But Ohioans often face unnecessary delays and obstacles when they ask for records that document what government is up to — either because public officials don’t know open-records laws, misinterpret them or purposely stall to cover up misdeeds.

Unless a citizen has tens of thousands of dollars and years to spend on a court lawsuit, he’s out of luck. Crooked or obstinate government officials know this, and use it to exploit the law.

A new bill proposed by Ohio Senate President Keith Faber would provide a much-needed fix, making it quick, cheap and easy for Ohioans to get a court order to produce denied records. Citizens could still file a lawsuit, but Faber’s bill supplies another option: Ohioans would be able to pay a $25 filing fee and have the case heard by the Ohio Court of Claims.

This court was created to hear claims against state entities, including elected officials, state boards, departments and universities; it typically hears cases involving things such as contract disputes, property damage, employment discrimination, personal injury and medical malpractice. This makes it a great choice as an independent arbiter on public-records denials, since it already hears cases involving alleged government wrongdoing.

Faber expects people would not have to hire a lawyer, and that cases should be decided within 45 days. A court mediator would try to resolve the case and then send his recommendation for review to a judge, who would issue a ruling.

“It’s about keeping government open, accessible and accountable to our citizens,” Faber said. “ Remember, the goal here for most seeking public records is to get the records. It is not to run up expenses and legal fees.”

Faber’s proposal drew immediate support from Ohio Attorney General Mike DeWine, Ohio Auditor of State Dave Yost and Dennis Hetzel, executive director of the Ohio Newspaper Association. Ohio Chief Justice Maureen O’Connor commended the bill for finding ways “to increase, speed up and make less costly Ohioans’ access to public records.”

If passed, this process likely would replace Yost’s Sunshine Audit, a complaint program he started last year to try to marshal help for Ohioans denied records. Faber’s process also would replace a separate mediation program for local government records that DeWine runs.

“This is a superior process,” Yost said of Faber’s bill.

Hetzel called it “a terrific piece of legislation that is going to open up access and information for all Ohio citizens. These are public records — they are not the government’s records.” He noted that 28 other states have a process in place to appeal public-records denials without having to file a lawsuit.

Faber, who is mulling a run for Yost’s auditor’s job in 2018, said he expects to see action on this before his members head home for summer break in early June.

Since Faber has the power to speed this legislation, he should act with the same alacrity to end theft by overbilling by online charter schools (some of whose owners are major GOP donors at the Statehouse). There is a bill to do this sponsored by Senate Minority Leader Joe Schiavoni, D-Boardman. That bill is a good starting point and, with Faber's help, could be shaped into an effective protection for Ohio taxpayers.

Ohio bill adds mediation option for public record disputes

From The Plain Dealer New legislation in the Ohio Senate aims to speed up and reduce the costs of public records disputes.

Senate President Keith Faber is proposing a court mediation process as an alternative to filing a lawsuit, if a public records request is denied or delayed. Lawsuits require attorneys, which aren't available to many citizens and cost taxpayers money on the government's end.

What's the problem?

Ohio's Public Records Act defines a "public record" as any record "kept by any public office, including, but not limited to, state, county, city, village, township, and school district units." If the record doesn't fall under one of several exemptions, the public office must make the record available for inspection or copying.

If the office refuses to release the records, a mandamus action, often through the Ohio Supreme Court, is the way to force officials to release records. Many people drop their request because they can't afford to hire lawyers. And if complaints go to court, they can take more than a year to be resolved, while taxpayers foot the bill defending the public office.

How would the bill work?

1. If a request for public records is denied or delayed, the requester can file a complaint in their county clerk's office for the Ohio Court of Claims. The fee to file would be $25.
2. The government entity would have seven days to respond.
3. The Court of Claims would attempt to mediate the problem between the two parties, and could do so by phone from Columbus.
4. If the mediation fails, a special master would render advisory opinion that would then be considered by a Court of Claims judge, who would issue a legally binding decision.
5. Either party can appeal, but the appeal would also be handled into expedited manner.

Faber said at a Wednesday press conference that most complaints would likely be resolved through mediation. The bill's time line calls for a legally binding decision within 45 days.

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Dispatch editorial: Police should release records

Editorial from The Columbus Dispatch

At a time the public is demanding greater transparency from law enforcement, Columbus police are waging a fight in the state’s highest court to continue concealing public records involving closed murder cases.

It is hard to think of many other government records that, if withheld, could pose a greater danger to the public or permit a greater injustice. The public has a necessary interest in being able to examine police investigation files, which has led to the exoneration of the wrongly convicted and could identify the true perpetrators to protect future victims.

But the city’s police division maintains that, for anyone to obtain these crucial case files, the person convicted must be dead or finished serving his sentence — life, for many.

“You can’t have a fair justice system if the people going through it have to be dead to gain access to records to make sure it’s working,” Columbus lawyer Fred Gittes previously noted.

In arguments before the Supreme Court on Wednesday, Gittes said that Columbus had provided full records disclosure up until 2010. “Suddenly a steel door came down,” he told the justices, “… and now we can’t get any information out of Columbus.”

Columbus police argue that a 2000 Cleveland appeals court decision forbids the release of records as long as defendants might ever file an appeal. Gittes argues this no longer applies following a 2010 change in criminal-discovery rules that expands access to documents held by police and prosecutors.

Withholding the case file to avoid compromising an investigation is not at issue. But once the case is prosecuted, the greater harm lies in not disclosing the records and allowing the public to serve as an additional check in the justice system.

Exemptions within the existing public-records act, such as protecting confidential informants, could still be used to withhold sensitive information, Gittes said. Instead, Columbus police are making blanket denials of case-file requests by journalists, justice advocates, private investigators and others.

The matter came before the court after the Ohio Innocence Project was denied records in the case of Adam Saleh, 28, who said he was wrongly imprisoned for 38 years to life in the 2005 murder of Julie Popovich, 20, of Reynoldsburg.

A lawyer representing the city of Columbus and Police Chief Kim Jacobs faced tough questioning by the court as the attorney argued that the city believes criminal-case records cannot be released as long as a suspect is able to appeal his conviction, even decades later.

“Your argument seems ridiculous,” Justice Paul E. Pfeifer told her.

Holding onto police case files until a convicted person is dead makes them all but useless. It does have one advantage, though: It covers up police misconduct or prosecutorial mistakes until so much time has passed that people can’t be held accountable and damages are mitigated because the person wrongly convicted has died in prison.

It is not surprising that other police departments across the state are said to be latching onto Columbus’ flawed interpretation to deny access to records. The high court, having pulled the shades on the state’s once-strong Sunshine Laws in some recent years’ rulings, has a chance with this case to defend transparency and protect the public.

As Dennis Hetzel, executive director of the Ohio Newspaper Association, has noted in support of the Innocence Project’s case, “I can’t think of anything more important from a transparency perspective than to be able to scrutinize the activity of police: They’re armed. They can take away your liberty.”

Columbus police should open records in closed cases, lawyer tells Ohio Supreme Court

From The Columbus Dispatch The refusal of Columbus police to release records underlying closed criminal cases could keep the innocent in prison and the true killers walking the streets, the Ohio Supreme Court was told Wednesday.

Past court decisions on which Columbus police rely to deny records should be overturned because a 2010 change in criminal discovery rules gave defendants expanded access to records held by police and prosecutors, Columbus lawyer Fred Gittes argued.

Gittes represents Donald Caster, an Innocence Project lawyer who claims that police violated public-records laws by refusing to release records in the case of Adam Saleh, who was convicted of the 2005 murder of Julie Popovich, 20, of Reynoldsburg.

Columbus police refused to release the case file, arguing that court decisions forbid the release of records as long as defendants have potential appeals, which generally can be filed anytime. Defendants also must use discovery rules, rather than records laws, to obtain records in their cases.

The Innocence Project, private investigators, journalists and others have an interest in obtaining criminal case files, with their work sometimes freeing the wrongly convicted or identifying true perpetrators, Gittes said.

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Ohio Coalition for Open Government update, consider making a donation

By Dennis Hetzel, OCOG President April is shaping up to be a busy month with regards to open government legislation in Ohio. The Ohio Coalition for Open Government (OCOG) is tracking a number of bills in the General Assembly which would directly affect open government issues, including one bill to require by statute the ongoing use of the successful OhioCheckbook.com database of government spending. We also hope to see a bill that would join Ohio with the majority of states that have some type of statutory appeals process to use following the denial of access to a public record.

If you’re interested in seeing all of the open government bills we’re tracking, along with summaries of the bills and their pros and cons, consider becoming an OCOG member. All OCOG members automatically received our “OCOG Legislative Watch List” several times a year.

Meanwhile, we’re awaiting court decisions in several cases important to open government:

• The Ohio Supreme Court should rule soon on a case involving the Olentangy School District outside Columbus in which school board members used email to deliberate while excluding one of the board members.
• The OSC will be hearing oral arguments this month on a very important police records case that could open access to case files in closed cases involving capital punishment.
• The Cincinnati Enquirer is pursuing two cases that the Supreme Court will be considering involving public access to video taken by police dashboard and body cameras.
• OCOG also is supporting a federal case that will be heard in Cincinnati to maintain access to booking photographs of people indicted or charged with federal crimes.

This follows an unusually successful 2015 on the court front, in which OCOG contributed to court victories in open records cases.

As always, OCOG is in great need of financial support. You can help by becoming a sustaining member at a very low cost by clicking here.

We also are looking for volunteers to help with our plans to hopefully do major fund raising in 2017 – OCOG’s 25^th anniversary. If you’d like to be part of the planning team, please contact me at dhetzel@ohionews.org.

As always, thanks for your interest. Please consider increasing your support, and check us out at www.ohioopengov.com.

Ohio Wesleyan faculty meetings no longer open to student newspaper

From The Transcript After more than 35 years, faculty meetings will no longer be open to reporters.

On April 18, Ohio Wesleyan faculty members voted to disallow The Transcript, the school’s independent student newspaper, from attending future faculty meetings.

Bob Gitter, professor of economics and a member of the faculty’s Executive Committee, presented the motion. Faculty asked the Executive Committee to reconsider the issue of banning The Transcript’s attendance, according to the faculty meeting agenda.

Gitter read the agenda and said, “Faculty meetings will not be open to reporters and a new mechanism in the form of a faculty meeting summary will be made available to the public within 24 hours after the end of the faculty meeting.”

Gitter then called for executive session, which was supported.

The vote was 47-21 in favor of the motion.

“It has a chilling effect on what people are willing to say if they feel the comments are going to be published in the newspaper,” he said.

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