Ohio HB 9 Public Records Amendments

Dino Tsibouris dino@tsibouris.com

(614) 228-9707 www.tsibouris.com

• Ohio Open Records audit shows compliance is spotty at best (Cleveland Plain Dealer 6/13/04)

• Government employees followed state law only half the time when asked for public documents, a recent open-records test found.

• In 53 percent of cases, record seekers got what they wanted the same day or the next

• The rest of the time, they were denied records or received them only after identifying themselves, submitting a written request or facing other conditions that are not required by state law

How We Got Here

• Ohio Open Records audit shows compliance

is spotty at best (Cleveland Plain Dealer 6/13/04) • The results were worse in a companion survey of 20

communities in Greater Cleveland, done by The Plain Dealer and the Akron Beacon Journal

• Record requests locally were granted hassle-free only a third of the time

• Those seeking documents found suspicion and even hostility

How We Got Here

• “Record” includes records documenting the “the depletion, expenditure, or depreciation of the resources of the public office, even if unauthorized by that office”

• “Public record” includes records of governmental entities that get housing subsidies

• AG must develop public records training

HB 9Bill Summary

• AG to develop model public records policy

• Public offices to adopt public records policy

• State auditor to monitor compliance with training and policy provisions

HB 9Bill Summary

• Office of the Public Access Counselor

• Public Access Counselor appointed by the Chief Justice of the Supreme Court

• Handles formal/informal complaints under Public Records and Open Meetings Law

• Dispute resolution – informal complaint• Investigation/Advisory opinion – formal complaint

HB 9Bill Summary

• Requires every public office to prepare promptly all public records and make them available for inspection at all reasonable times and during regular business hours

• Upon request and within a reasonable period of time … must make copies available at cost

The Public Records Law149.43

• Any document, device, or item, regardless of the physical form or characteristic, created or received by or coming under the jurisdiction of any public office of the state or its political subdivisions that documents the depletion, expenditure, or depreciation or the resources of a public office, even if unauthorized by that office

Definition of “Records”149.011(G)

• Records kept by any public office, including, but not limited to, state, county, city, village, township, and school district units and records pertaining to the delivery of educational services by an alternative school in Ohio kept by a nonprofit or for profit entity

Definition of “Public Record”149.43(A)(1)

• Public officials to be trained how to make public records available for public inspection and copying

• Training must be approved by the Attorney General

Public Records Law Trainingfor Public Officials

• Attorney General to provide training for elected officials

• 3 hours for every term of office

• Training must provide guidance to help develop or update policies as required by HB9

• No fee

Public Records Law Trainingfor Public Officials

• AG to provide a model public records policy for responding to public records requests• May not limit the number of public records made

available to any one single person• May not limit the number of records you may

make available in a fixed period of time• May not establish fixed period of time before you

respond (unless under 8 hours)

Adoption of Public Records PolicyBy Each Public Office

• “Elected Official” means an official elected to a local or statewide office. Does NOT include judges or court clerks.

• "Designee" means a designee of the elected official in the public office (if the only elected official in the public office) or of all the elected officials in the public office if the public office involved includes more than one elected official.

• “Public office" definition not changed.

Definitions for Purposes of Training109.43(A) and 149.43(A)(12)

• Inspection and copying of public records

• Records must be promptly prepared and made available for inspection to any person at reasonable times during regular business hours

• Upon request and payment in advance of the cost of making copies of the requested public record under this section, a public office or person responsible for public records must make copies available at cost, within a reasonable period of time

Request for Public Records149.43(B)(1)

• “Redaction” means obscuring or deleting any information that is exempt from the duty to permit public inspection or copying from an item that otherwise meets the definition of a “record”

Request for Public Records149.43(A)(11)

• If record is exempt, still must make available all of the information that is not exempt

• Notify the requester of redactions or make them visible

• Redactions are a denial of a request unless authorized by law

Request for Public Records149.43(B)(1)

• Must organize and maintain records in a manner that they can be made available for inspection or copying

• Must have a publicly available copy of current records retention schedule

• If request is ambiguous or does not reasonably identify public records being requested:

• May deny the request• Must provide opportunity to revise request by

explaining how records are maintained and accessed in the ordinary course of the public office's duties

Organization and Availability149.43(B)(1) – (2)

If a request is denied (in part or in whole)

• Must explain why (include legal authority)

• Written requests to be answered in writing

• May offer information about filing formal or informal complaint with the Public Access Counselor

Explanation for Denial149.43(B)

• Generally may not limit or condition the access by requiring disclosure of the requester's identity or intended use of the public record

• A requirement constitutes a denial of the request

Requester’s Identity, Use of Records149.43(B)(4) – (5)

• May ask for a written request, the requester's identity, or the intended use of the information only:

• AFTER disclosing a written request is not mandatory and that the requester may decline to reveal their identity or intended use

• IF it would benefit the requester by helping identify, locate, or deliver the public records sought by the requester

Requester’s Identity, Use of Records149.43(B)(4) – (5)

• Requester may choose copy in

• Paper

• The same medium in which the record is currently kept, or

• Any other medium it can be reasonably duplicated

• Now may require advance payment of duplication

Choice of Duplicating Medium149.43(B)(2) – (6)

• Send by mail or by any other means of delivery or transmission within a reasonable period of time

• Require up-front payment of the cost of mailing, delivery, or transmission

• Public office may adopt policy and procedures

• Repeals the old limit to the number of copies to be transmitted by United States mail

Choice of Duplicating Medium149.43(B)(7)

• Parties claiming a denial or any other failure of a public office to comply with an obligation may do either of the following:

• File either an informal complaint or a formal complaint with the Public Access Counselor, or

• Commence a mandamus action (order, court costs, attorneys fees)

• If you file a mandamus you cannot file a formal or informal complaint with the Public Access Counselor

Mandamus149.43(C)(1)

• Requester entitled to statutory damages if both occur:

• Person filed informal or formal complaint with the Public Access Counselor

• The public office failed to respond within ten (10) business days after receipt by hand delivery or certified mail, or any additional time that is necessary due to any of the following:

1. Age of the records2. Volume of the records if more than 100 pages3. Examination for privileged or exempt information 4. Redaction of information5. Format of records no longer easily accessible.

Statutory Damages149.43(C)(2)

• $100 for each business day during which the public office failed to make records available

• Begins the day on which the requester files a mandamus action up to a maximum of $1,000

• Compensation for lost use of the requested information

Statutory Damages149.43(C)(2)

• Office of the Public Access Counselor

• Public Access Counselor appointed by the Chief Justice of the Supreme Court

• Admitted to practice law in Ohio

• Four year term

• May appoint any employees necessary

Office of Public Access Counselor2743.31

• Assist AG with training programs and seminars

• Receive informal complaints and initiate dispute resolution

• Receive formal complaints, investigate the allegations in the formal complaint, and issue an advisory opinions

• Make recommendations to the General Assembly and to the Supreme Court concerning ways to improve public access to public records and to ensure public attendance at public meetings

Duties of Public Access Counselor2743.32

• Requester is not required to file an informal complaint or formal complaint with the Counselor before filing an action in court

• Must cooperate with the Counselor in any proceeding dealing with informal complaints and formal complaints

Duties of Public Access Counselor2743.33 (A) and (B)

• May not file both an informal complaint and a formal complaint if based on the same facts

• Counselor will prescribe the form of informal and formal complaints

• Must file within 30 days after the date of the alleged denial

Formal and Informal Complaints2743.33(C); 121.22(K) and 149.43

• Counselor must engage in early intervention, mediation, conciliation, or any other form of dispute resolution; or

• Facilitate discussion between the parties involved in the complaint in order to encourage them to reach an agreement on the issues raised in the complaint as soon as practicable

Informal Complaints2743.33 (F)(1)

• Counselor must engage in early intervention, mediation, conciliation, or any other form of dispute resolution; or

• Facilitate discussion between the parties involved in the complaint in order to encourage them to reach an agreement on the issues raised in the complaint as soon as practicable

Informal Complaints2743.33 (F)(1)

• Investigation. Counselor must investigate the facts alleged in the complaint

• Agreement. Parties may agree to settle dispute, supervised by Counselor

• Advisory opinion. Counselor must generally issue an advisory opinion 14 days after the complaint is filed

Formal Complaints2743.33 (G)

• Withdrawal of complaint• May withdraw a complaint at any time by notifying

the Counselor in writing of the withdrawal

• May choose to bring an action in court on the same facts that are the subject matter of the withdrawn complaint

• Does not toll the statute of limitations

Changing Course2743.34

• Ohio Historical Society shall function as the state archives administration for Ohio and political subdivisions

• HB 9 adds the function of a state archives administration to preserve government archives, documents, and records of historical value from public or private sources

State Archives Administration2743.33 (F)(1)

• May employ an archivist or records manager to serve under its direction:• To provide rules for retention and disposal of

records of the county

• To review applications for one-time disposal of obsolete records and schedules of records retention and disposition submitted by county offices

County Records Commission2743.33 (F)(1)

• County records commission must forward any application for one-time disposal of obsolete records or any schedule of records retention and disposition to the Ohio Historical Society for approval

• OHS must review within 60 days

• Society then forwards the application to the State Auditor for approval

County Records Commission2743.33 (F)(1)

House Bill 9

QUESTIONS?