the ohio public records act ksu administrative policy 3342-5-15.1

Presentation Prepared by the Office of University Counsel for Educational Use, 2008

The Ohio Public Records ActKSU Administrative Policy 3342-5-15.1

Presented byJames R. Watson, Esq.Associate University CounselKent State University


The Ohio Public Records Act

Along with the Open Meetings law referred to as “Sunshine Laws”

governed by Ohio Revised Code Chapter 149.43

applies to state offices such as Kent State University

Amended by Substitute House Bill 9


3342-5-15.1 Administrative policy regarding public records. Based on the Model Policy created by the Ohio

Attorney General’s office under Substitute House Bill 9

Created under the authority of 3342-5-15, University policy regarding records retention

http://www.kent.edu/policyreg/chap5/5-15-1.cfm It is the policy of Kent State University to adhere

to the state’s Public Records Act.


It is the policy of Kent State University that openness leads to better informed citizenry, which leads to better government and better public policy.

Policy 3342-5-15.1 (A) Purpose


Policy 3342-5-15.1 (B) Definitions

Record. • contains information stored on a fixed medium

(paper, computer, film, e-mail, etc.);• is created, received, or sent under the

jurisdiction of the university; • documents the organization, functions,

policies, decisions, procedures, operations, or other activities of the university; and

• exists at the time of the request.


Policy 3342-5-15.1 (B) Definitions(2) Requestor. Any person who wishes to make a request to

inspect or receive copies of records. A requestor does not have to provide his or her identity or the intended use of the requested record.

(3) Request. Although no specific language is required to make a request, the requester must at least identify the records requested with sufficient clarity to allow the university to identify, retrieve, and review the records. The requester does not have to put a records request in writing but it is helpful to the university to know what records are being sought.

(4) Exemption. Social security numbers and personal bank routing information are exempted from disclosure when responding to public record requests. All other exemptions to disclosure are to be construed in their narrowest sense.


Policy 3342-5-15.1 (B)(4) Exemption.Examples of Specific Exemptions FERPA- protected student records HIPAA- protected medical records peace officer, firefighter, or EMT residential information Ongoing investigation records security and infrastructure records “expressed exceptions,” including: Job and Family

Services records; Intellectual Property records; “catch-all exceptions,” including: Attorney Client

Privilege; medical board; child abuse; student education; “personal notes”, “drafts”, witness or “included parties” identification.


REDACTION University Counsel

reviews every document and redacts exempted information prior to release.

Redactions don’t apply to documents that have been demanded by subpoena


Policy 3342-5-15.1 (B)(4) Exemption.Attorney-Client Privilege

The right of the University to refuse to disclose confidential communication with its lawyers.

Fundamental to preserve the constitutionally-based right to effective assistance of legal counsel, in that lawyers cannot function effectively on behalf of their clients without the ability to communicate with them in confidence.

Source: American Bar Association http://www.abanet.org/media/issues/acprivilegeqa.html


Policy 3342-5-15.1 (C) Scope

(1) All records of Kent state university are public unless they are specifically exempt from disclosure under the Ohio Revised

Code or federal law.


Policy 3342-5-15.1 (C) ScopeAll records of KSU are public unless specifically exempt

Rule of Thumb:

Assume everything you send, receive, and create for the University is a public record.


Policy 3342-5-15.1Examples of Public Records

A Tenure Review File after the review is completed

Ongoing Personnel Files (personally identifiable information is redacted)

Student directory information

Bids and Final Contracts An e-mail about an

employee discipline issue sent to your gmail account


Policy 3342-5-15.1 (D) Implementation

(1) Record maintenance. As required by Ohio law, records will be organized and maintained as much as is practicable so that they are readily available for inspection and copying. Maintenance standards for e-mail are specifically provided for in (D)(5) of this policy.


Policy 3342-5-15.1 (D) (1)Record Retention The university’s record retention schedules

pursuant to policy 3342-5-15 are available online.

http://www.kent.edu/policyreg/chap5/upload/3342.5.15.pdf

From University Policy 3342-5-15: “(C) Responsibility for adhering to the policies and

procedures regarding records shall reside with the head of the respective unit where the records are maintained.”


Policy 3342-5-15.1 (D) (1)Record Retention Schedules

The custodian of a document that must be disposed of by “destroying” has to fill out a document destruction form.

Online and searchable at http://www.kent.edu/universitycounsel/RecordsRetention/Welcome.cfm


Policy 3342-5-15.1 (D) (1)Record Destruction Form

http://www.kent.edu/universitycounsel/upload/RecordDestructionForm.pdf


Policy 3342-5-15.1 (D) Implementation

(2) Public record requests.

(a) All public records requests for Kent state university shall be directed to the office of university counsel.

Call us at 330-672-2982

E-mail us at [email protected]

Send written requests to us via scan and email, fax (330-672-7821) or campus mail


Pursuant to KSU Administrative Policy…


Policy 3342-5-15.1 (D)(2)(b) Evaluating Record Requests

(i) If it is not clear what records are being sought, and if the requestor has provided contact information, the office of university counsel must contact the requester for clarification, and should assist the requestor in revising the request by informing the requestor of the manner in which the university keeps its records.

(ii)Each request should be evaluated for an estimated length of time required to gather the records. Routine requests for records should be satisfied as soon as feasible.

(iii) If the responsive records are readily available in an electronic format that can be e-mailed or downloaded easily, responses should be made as quickly as the equipment allows.

(iv) Any denial of records in response to a valid request must be accompanied by an explanation, including statutory legal authority, as outlined in the Ohio Revised Code. If the request is in writing, the explanation must also be in writing.


Policy 3342-5-15.1 (D)(2)(c)&(d) Availability of Public Records

(c) Public records are to be available for inspection during regular business hours, with the exception of university holidays.

(d) Public records must be made available for inspection promptly and copies of public records must be made available within a reasonable period of time. Always consult with University Counsel


Policy 3342-5-15.1 (D)(2)(f)Denial of Public Records

Any denial of public records requested [from University Counsel] must include an explanation, including statutory legal authority. If portions of a record are public and portions are exempt, the exempt portions are to be redacted and the rest released. If there are redactions, each redaction must be accompanied by a supporting explanation, including statutory legal authority.


Those seeking public records will be charged only the actual cost of making copies:

(a) The charge for paper copies is 10 cents per page.*

(b) The charge for downloaded computer files to a compact disc is $1 per disc.

(c) There is no charge for documents e-mailed. (d) The actual charge for copy services or

mediums – including but not limited to maps, color copies, hard drives, and audiotapes – will be charged to the requestor.

* The first set isn’t counted if a second set is made after redacting.

Policy 3342-5-15.1 (D)(3)Cost for Public Records


Policy 3342-5-15.1 (D)(4)Delivery

Requesters may ask that documents be mailed or shipped to them.

They will be charged the actual cost of the postage and mailing supplies.


Policy 3342-5-15.1 (D)(5)E-Mail

Documents in electronic mail format are records as defined by the Ohio Revised Code when their content relates to the business of the university. E-mail is to be treated in the same manner as records in other formats and should follow the same retention schedules as provided for in (D)(1) of this policy.


Policy 3342-5-15.1 (D)(5)Private E-Mail Accounts

(a) Records in private e-mail accounts used to conduct university business are subject to disclosure, and all employees or representatives of the university are instructed to retain e-mails that relate to university business (See (B)(1)) and make them available in response to requests.

(b) The records custodian is to treat the e-mails from private accounts as records of the university, filing them in the appropriate way, retaining them per established schedules and making them available for inspection and copying in accordance with the Public Records Act.


Policy 3342-5-15.1 (D)(5)Private E-Mail Accounts

Rule of Thumb:

Don’t do University business on private e-mail accounts!


Policy 3342-5-15.1 (E)Failure to respond to a public records request.

(1) Kent state university recognizes the legal and non-legal consequences of failure to properly respond to a public records request. In addition to the distrust in government that failure to comply may cause, the university’s failure to comply with a request may result in a court ordering the university to comply with the law and to pay the requester attorney’s fees and damages.


Your Responsibilities

What to do when you receive a public records request for University records?

Forward the request to the Office of University Counsel to be reviewed.

Make the records requested available to the Office of University Counsel to be reviewed and redacted if necessary.

The Office of University Counsel will contact and make the records available to the requestor, directly or through the custodian’s office.

Subpoenas


If you receive one of these…

IN ANY COURT OF ANY KIND* * * * * ANY KIND OF SUBPOENA * * * * *

JOHN DOE :PLAINTIFF : Case No.: 2008 OH 01234

VS :JOHN Q. PUBLIC : JUDGE: I. MEENBISNIS

DEFENDANT :

TO: KENT STATE UNIVERSITY (Name)P.O. BOX 5190 (Address)KENT, OH 44242 (City-State-Zip)

YOU ARE HEREBY COMMANDED TO: PRODUCE STUFF


…forward it to University Counsel.

We will review and get back to you with instructions as soon as possible.


The Open Meetings Act


What is an open meeting?

An open meeting under Ohio law is:

(1) a prearranged gathering (2) of a majority of the public body (3) to conduct or discuss public business.

The ONLY University public body and therefore the only body subject to the open meetings law is the Kent State University Board of Trustees


Records and ArchivingSpecial Collections and Archives

Administration of University Archives.

Appraisal

Acquisition

Processing

Preservation

Access.

Stephen H. Paschen, University [email protected]



Not a records center.

Special Collections and Archives holdings are for permanent retention.

We do not arrange for temporary storage or disposal.

Historically important records.

Generally not interested in artifacts.



University Archivist – assists with:

Backlogs of records in offices.

Offices with matters of records disposition.

Coordinated efforts across campuses.



Records Advisory Committee. Surveys records practices. Reviews IUC retention schedules. Communicates best practices. Consultation and collaboration. Identifies contacts in offices. Considers electronic records issues.



When to consult the University Archivist. Retention schedule questions.

Historically important materials.

Questions regarding records destruction.

Before shipping records to the archives.

Preservation and conservation issues.

Reference questions regarding the University’s history.



Stephen H. Paschen

University Archivist

330-672-1639

[email protected]

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