Ohio
Open Government Guide
CompareAuthor
Andrew Geronimo
Stanton Foundation Fellow, First Amendment Project
Case Western Reserve University School of Law
11075 East Boulevard
Cleveland, Ohio 44106
David Marburger
Marburger Law LLC
14700 Detroit Ave., Suite 1
Cleveland, OH 44107
With research contributions from Marcus Mazurowski, Coreen Debelak, and Max Marhulik, students in the First Amendment Lab at Case Western Reserve University School of Law.
CompareForeword
CompareOpen Records
Public records have a long history in Ohio. The Ordinance of 1787, which Congress passed in 1787, governed Ohio before it became a state. The Ordinance required Congress to appoint a secretary for the Northwest Territory, which included Ohio. The secretary's duties included keeping and preserving "the public records" of the territory.
Long before 1963, when Ohio's General Assembly enacted the public records statute, Ohio courts recognized a common law right of the public to inspect and copy governmental records. At about the turn of the century, an Ohio court in Cincinnati recognized that unrestricted public access to governmental records was one of the elements distinguishing American government from the government of England. The court stated:
In England the fountainhead of justice is the king. . .. The courts are his courts, and the government is his government. Whatever power the people have he has granted to them; and if no grant has been made to them to examine the public records, it may well have been in England that they have no such power.
But in this country . . . the people are the fountainhead of justice. The courts are their courts, and the government is their government. Whatever power they have not granted to their officials remains with them. . ..
As public records are but the people's records, it would seem necessarily to follow that unless forbidden by a constitution or statute, the right of the people to examine their own records must remain.
Wells v. Lewis, 12 Ohio N.P. 170 (Superior Ct. of Cincinnati 1901).
The Wells case evidences a colorful history of the public right of access to records, and shows that times have not changed as much in the passing century as one might think. Two men, Mr. Wells and Mr. Schroeder, sought to inspect and make copies of the Hamilton County "fair books" for a particular ward within the county. The "fair books" listed the name and address of each owner of real estate, and the assessed value of each real estate parcel as made by the county. The Hamilton County Auditor, Mr. Lewis, maintained the "fair books" as one of the duties of his office. Lewis was in the midst of running for re-election, and Wells was a democrat running against Lewis. Wells lived in Hamilton County, and was a taxpayer. Schroeder, also a democrat, was a resident of Hamilton County, but not a taxpayer.
Wells and Schroeder alleged that public statements about a reduction in the property tax rate had created a misimpression among the citizenry that property taxes would in fact go down. Wells and Schroeder wanted to see the "fair books" to try to show that the county had increased the valuation of real estate and, thus, a reduction in the tax rate would not mean an actual reduction in taxes.
When Wells and Schroeder went to Lewis' office to inspect the "fair books," the books were absent from their customary shelves. Lewis said that one of his clerks was in the process of duplicating the books, and they would not be available to Wells or Schroeder. In the subsequent suit by Wells and Schroeder against Lewis, the court rejected Lewis' argument that the English rule of public access should apply. The English rule asserted that no one had a right to inspect the records of a public officeholder unless the person seeking inspection had an interest in seeing the records that was peculiar to that person and distinct from the community at large. Lewis argued that Wells and Schroeder could inspect records about their own properties, but not about any other properties.
In rejecting the English rule, the court stated that all citizens "have a right to as full knowledge of all the official acts of their officers as the officers themselves have, so as to enable them to ascertain whether their officers have performed their duty in such manner as is acceptable to them with a view to determine whether they will continue them in office or not." The court added:
[T]he records in the auditor's office are the public records of the people of Hamilton county, bought with their money, kept in a public place built with their money, and in the charge of public officials paid by their money and selected by them. The officials in charge of these books, therefore, can be no other than trustees in possession of property belonging to the people of Hamilton county.
If then the auditor holds these books in trust for the people of Hamilton county, it is but an elementary proposition of law that the beneficiaries of the trust may inspect such property, subject only to the limitation that such inspection does not endanger the safety of the books or interfere with the discharge by the auditor of his official duties.
Wells, Ohio N.P. at 176.
Today's public records statute codifies Ohio's common law, and incorporates the common law philosophy that "public records are the people's records, and officials in whose custody they happen to be are merely trustees for the people." E.g., State ex rel. Warren Newspapers Inc. v. Hutson, 70 Ohio St. 3d 619, 640 N.E.2d 174 (1994).
The history of open meetings in Ohio lacks the color and legal precedent of the history of open records in Ohio. Although it cited no authoritative history, the Ohio Supreme Court has opined that there was no common law right of public access to governmental meetings in Ohio. Beacon Journal Publishing Co. v. City of Akron, 3 Ohio St. 2d 191, 209 N.E.2d 399 (1965).
The Ohio Supreme Court is probably mistaken. Ohio has a long history of open meetings of public bodies. In 1795, the legislature of the Northwest Territory, which included Ohio, held its first recorded session. The Territory's only newspaper at that time, The Centinel of the Northwest Territory, announced the time and place of the meeting. The territorial legislative sessions were open to the public. C.B. Galbreath, "Legislature of The Northwestern Territory, 1795," Ohio Archaeological and Historical Society Publications 14, 18 (1921).
In 1802, Ohioians held a constitutional convention to adopt a state constitution. All citizens had a right to address that body "openly or in writing." C.B. Galbreath, "Legislature of The Northwestern Territory, 1795," Ohio Archaeological and Historical Society Publications 203 (1921).
The product of the constitutional convention was the Ohio Constitution of 1802, which provided that "[t]he doors of each house, and of committees of the whole, shall be kept open." Ohio Const. of 1802, Art. I, § 15.
The primary organ of local governmental authority in the Northwest Territory was the court of Quarter Sessions, the forerunner of the board of county commissioners. The courts of Quarter Sessions operated in a combination of legislative, executive, and judicial capacities. The proceedings of the courts of Quarter Sessions were open community affairs. R. Ireland, "Politics of County Government," Kentucky: Its History and Heritage 75 (1978).
At the municipal level, open town meetings were the norm. W. Rose, Cleveland: The Making Of A City 115-116 (1950).
Ohio's open meetings statute was first passed in 1954.
CompareI. Statute
CompareA. Who can request records?
Compare1. Status of requester
"Any person" is entitled to inspect or receive a copy of a public record; the right is not limited to U.S., state, or community citizens. Ohio Rev. Code § 149.43(B).
The term "any person" is "broad and permits anyone, including any recognized business entity (defendants, newspapers, researchers, designees and/or nondesignees) to obtain records." State ex rel. Quolke v. Strongsville City School Dist. Bd. Of Edn., 142 Ohio St.3d 509, 514, 33 N.E.3d 30, 34 (2015).
An incarcerated person, however, must obtain a judge's consent before gaining access to public records unless the judge decides that the records would support a "justiciable claim" of the inmate. Ohio Rev. Code § 149.43(B)(8); State ex rel. Sevayega v. Reis, 88 Ohio St. 3d 458, 727 N.E.2d 910 (2000).
Compare2. Purpose of request
Usually, the requester's purpose cannot affect his right to receive public records. State ex rel. Quolke v. Strongsville City School Dist. Bd. Of Edn., 142 Ohio St.3d 509, 514, 33 N.E.3d 30, 34 (2015)(“the identity of the original requester, as well as his reason for requesting the records, is irrelevant.”). But Ohio Rev. Code § 149.43(B)(8) creates an exception where an incarcerated person has no right to see a public record unless a judge determines that the inmate's purpose is to "support what appears to be a justiciable claim" of the inmate. State ex rel. Barb v. Cuyahoga Cty. Jury Comm’r, 124 Ohio St.3d 238, 921 N.E.2d 236, 2010-Ohio-120.
Where the requester is seeking access to records of the Bureau of Motor Vehicles, a commercial purpose other than newsgathering may increase the cost. Ohio Rev. Code §§ 149.43(F)(1); 149.43(F)(3).
Also, a public school "may require disclosure of the requester's identity or the intended use" of "directory information concerning any students" to "ascertain whether the directory information is for use in a profit-making plan or activity." R.C. 3319.321. Federal law defines student directory information: "Student's name, address, telephone listing, date and place of birth, major field of study, participation in officially-recognized activities and sports, weight and height of athletic teams, dates of attendance, degrees and awards received, and the most recent previous educational agency or institution attended by the student." 20 U.S.C. 1232g(a)(5)(A) (Family Educational Right to Privacy Act–FERPA).
Compare3. Use of records
The statute places no restrictions on subsequent use of the records provided.
Where the requester is seeking access to records of the Bureau of Motor Vehicles, a commercial purpose other than newsgathering may increase the cost. A commercial purpose includes those who themselves may not intend a commercial use, but who intend to forward the records to someone else who will put them to a commercial use. Ohio Rev. Code § 149.43(F).
Compare4. Can an individual request records on behalf of a third party or organization?
CompareB. Whose records are and are not subject to the Act
Compare1. Executive branch
The statute's language is broad enough to literally apply to the executives themselves, such as a governor or other chief executive officer. However, the Ohio Supreme Court has recognized that the constitutional doctrine of separation of powers may inhibit the statute's application to the Governor, Lieutenant Governor, Secretary of State, State Auditor, State Treasurer, and Attorney General. That doctrine does not inhibit the law's application to mayors or other chief executives of political subdivisions. State ex rel. Plain Dealer Publishing Co. v. City of Cleveland, 75 Ohio St.3d 31, 661 N.E.2d 187 (1996). The separation of powers limitation creates a qualified privilege that may be overcome where a requester demonstrates a particularized need to review the communications which outweighs the benefits of according confidentiality to communications. State ex. rel. Dann v. Taft, 109 Ohio St.3d 364, 848 N.E.2d 472 (2006).
The statute does not distinguish among the functions of an executive officer, or any other official, in determining whether the public has a right of access to records.
Compare2. Legislative bodies
The Ohio Supreme Court declined to order a state legislator to release copies of emails about specified legislation because the legislator already had released all existing emails to the requester, making the suit moot. Neither the court nor the legislator raised any doubt that the statute applied. No one raised constitutional separation of powers either. State ex rel. Glasgow v. Jones, 119 Ohio St.3d 391, 894 N.E.2d 686, 2008-Ohio-4788, ¶ 19. The constitutional doctrine of separation of powers may inhibit the statute's application to the state legislature in some contexts. See State ex rel. Plain Dealer Publishing Co. v. City of Cleveland, 75 Ohio St.3d 31, 661 N.E.2d 187 (1996).
In the meantime, the General Assembly has immunized certain classes of its internal legislative records from the Public Records Act, specifically records that arise out of the relationship between legislative staff and a member of the General Assembly, but are not filed with the clerk of the General Assembly, presented at a committee hearing or floor session. Ohio Rev. Code § 101.30.
Compare3. Courts
Public access to records filed in court generally is governed by Rules 44 and 45 of the Rules of Superintendence adopted by the Ohio Supreme Court. Those rules keep certain personal information, such as credit card numbers and bank account numbers, outside the broad scope of court records that are presumptively open to the public. They provide for anyone to make a request to the clerk of the courts or to the court to see any record, which is presumptively open to the public.
If the court has restricted public access to certain records, a requester must file a formal motion with the court to see it.
Those rules, which the Ohio Supreme Court adopted in 2009, do not have the same force of law that a statute has, but courts follow them, paying little attention to any other source of law governing public access to records. Buckmaster v. Buckmaster, 2014-Ohio-793 (4th Dist.-Highland).
The rules remove from presumptive public access the following kinds of records filed in court:
• social security numbers, except for the last four digits;
• financial account numbers, including but not limited to debit card, charge card, and credit card numbers;
• employer and employee identification numbers;
• a juvenile’s name in an abuse, neglect, or dependency case, except for the juvenile’s initials or a generic abbreviation such as “CV” for “child victim.”
• a juvenile’s previous disposition in abuse, neglect, and dependency cases, juvenile civil commitment files, post-adjudicatory residential treatment facility reports, and post-adjudicatory releases of a juvenile’s social history;
• notes, drafts, recommendations, advice, and research of judicial officers and court staff;
• information on or obtained from the Ohio Courts Network, except that the information shall be available at the originating source if not otherwise exempt from public access;
• in a court of common pleas or a division thereof with domestic relations or juvenile jurisdiction, the following documents:
(i) health care documents, including but not limited to physical health, psychological health, psychiatric health, mental health, and counseling documents;
(ii) drug and alcohol use assessments and pre-disposition treatment facility reports;
(iii) guardian ad litem reports, including collateral source documents attached to or filed with the reports;
(iv) home investigation reports, including collateral source documents attached to or filed with the reports;
(v) child custody evaluations and reports, including collateral source documents attached to or filed with the reports;
(vi) domestic violence risk assessments;
(vii) supervised parenting time or companionship or visitation records and reports, including exchange records and reports;
(viii) financial disclosure statements regarding property, debt, taxes, income, and expenses, including collateral source documents attached to or filed with records and statements;
(ix) asset appraisals and evaluations.
Before adopting the Rules of Superintendence, the Ohio Supreme Court applied the Public Records Act to compel courts to open court records. State ex rel. Scripps Howard Broad. Co. v. Cuyahoga County Court of Common Pleas, Juv. Div., 73 Ohio St. 3d 19, 652 N.E.2d 179 (1995); State ex rel, MADD v. Gosser, 20 Ohio St. 3d 30, 485 N.E.2d 706 (1985); State ex rel, Harmon v. Bender, 25 Ohio St. 3d 15, 494 N.E.2d 1135 (1986).
"[A]ny record used by a court to render a decision is a record subject to R.C. 149.43." State ex rel. WBNS TV Inc. v. Dues, 101 Ohio St. 3d 406, 805 N.E.2d 1116 (2004). But see, State ex rel. Cincinnati Enquirer v. Winkler, 101 Ohio St.3d 382, 805 N.E.2d 1094, 2004-Ohio-1581 (records sealed by an adjudication are not public records).
When a party to an action requests a transcript from that action, the party must pay the fees designated by Ohio Rev. Code § 2301.24, and cannot take advantage of the lower "at cost" fees imposed under the Public Records Act. State ex rel. Slagle v. Rogers, 103 Ohio St. 3d 89, 814 N.E.2d 55, 2004-Ohio-4354, clarified on reconsideration by State ex rel. Slagle v. Rogers, 106 Ohio St.3d 1402, 2005-Ohio-3040 (party to an action may not circumvent payment of official court reporter fees for a copy of a transcript under 2301.24, but may “freely inspect, without copying … as permitted by R.C. 149.43(B)”).
But constitutional separation of powers bars the statute from compelling judges to release personal notes taken in cases over which they are presiding, and that the notes are not records kept by a "public office" and therefore not "public records." State ex rel. Steffen v. Kraft, 67 Ohio St. 3d 439, 619 N.E.2d 688 (1993). The court later relied on Kraft to adopt a "judicial mental process" privilege to exempt from disclosure an attorney-examiner's report to a county Board of Tax Appeals. The court reasoned that the BTA is a quasi-judicial body when discharging its adjudication duties and, therefore, requires the privacy to deliberate granted the courts. TBC Westlake Inc. v. Hamilton County Board of Revision, 81 Ohio St.3d 58, 689 N.E.2d 32 (1998).
Compare4. Nongovernmental bodies
A "public office" is the entity that has "public records." Neither the Public Records Act nor its related statutes explicitly address private entities to whom a public office has delegated the performance of public services or that function as a de facto public office.
Ohio Rev. Code § 149.011(A) defines “public office” as “organized body, office, agency, institution, or entity established by the laws of this state for the exercise of any function of government.” R.C. 149.011(A).
Before 2001, the Ohio Supreme Court regularly found that private entities carrying out public services on the government's behalf had to allow public inspection of records that documented carrying out those services.
In the first of those cases, the court decided that a private nonprofit corporation whose only function was to operate a city-owned hospital under a rent-free lease with the city, and whose records were subject to the city's control, had to allow a newspaper to inspect the minutes of the meetings of the corporation's board of trustees in managing the hospital.. State ex rel. Fostoria Daily Review Co. v. Fostoria Hospital Ass'n, 40 Ohio St. 3d 10, 531 N.E.2d 313 (1988).
In 2001, the Ohio Supreme Court started to retreat from opening the records of privatized governmental services when it declined to apply the Fostoria Daily Review decision to a similar arrangement between a private nonprofit corporation managing a different city-owned hospital run by board of trustees whose members were appointed by local mayors. State ex rel. Stys v. Parma Cmty. Gen. Hosp., 93 Ohio St. 3d 438, 755 N.E.2d 874, 2001-Ohio-1582.
Since the Stys decision, the Ohio Supreme Court has retreated significantly from allowing the public to compel a nongovernmental body to open any of its records even though the body gained its authority from the government to make and keep the records for a public purpose.
Since 2006, the Ohio Supreme Court has applied a "functional-equivalency" test to decide whether a private entity entangled with government must comply with the statute. Under that test, the court analyzes "(1) whether the entity performs a governmental function, (2) the level of government funding, (3) the extent of government involvement or regulation, and (4) whether the entity was created by the government or to avoid the requirements of the Public Records Act.” State ex rel. Oriana House, Inc. v. Montgomery, 110 Ohio St.3d 456, 854 N.E.2d 193, 2006-Ohio-4854.
The prime difficulty in overcoming the functional-equivalency test is that it requires the government to "control the day-to-day operations" of the private entity. That level of control virtually never exists when the government chooses to privatize its services. See State ex rel. Repository v. Nova Behavioral Health, Inc., 112 Ohio St.3d 338, 859 N.E.2d 936, 2006-Ohio-6713, ¶ 34.
The Ohio Supreme Court did not reach the functional-equivalency test when it ruled that a private, nonprofit corporation operating a public city-owned market under a contract with the city could redact from public view certain terms from its leases with shop owners as trade secrets. State ex rel. Luken v. Corp. for Findlay Market, 135 Ohio St.3d 416, 988 N.E.2d 546, 2013-Ohio-1532.
“The fact that a private entity receives government funds does not convert the entity into a public office for purposes of the Public Records Act.” Oriana House, 110 Ohio St.3d 456, 854 N.E.2d 193, 2006-Ohio-4854, at ¶ 29.
The Ohio Supreme Court declined to apply the functional-equivalency test in ruling that a private college's campus police department had to release to a student newspaper records of arrests that campus officers made. The court relied on a state law that gave private colleges their only authority to hire their own "police officers" with the same powers as police officers hired by local governments. A private college's campus police are empowered to arrest people, conduct searches, seize property, and to use deadly force. R.C. 1713.50. So campus police departments of private and public colleges are established by law to exercise a fundamental and historically "function of government"—a prime criterion to be a "public office." R.C. 149.011(A); State ex rel. Schiffbauer v. Banaszak, 142 Ohio St.3d 535, 33 N.E.3d 52, 2015-Ohio-1854.
But when a county charter authorized a newly-structured county government to establish advisory groups of private citizens and public officials to recommend additional components for the new government, the Ohio Supreme Court ruled that the advisory groups were not subject to the Public Records Act. State ex rel. Am. Civ. Liberties Union of Ohio, Inc. v. Cuyahoga Cty. Bd. Of Comm’s, 128 Ohio St.3d 256, 943 N.E.2d 553 (2011).
A relator seeking to enforce the Public Records Act must demonstrate by clear and convincing evidence that an entity is the functional equivalent of a public office. State ex rel. Am. Civ. Liberties Union of Ohio, Inc. v. Cuyahoga Cty. Bd. Of Comm’s, 128 Ohio St.3d 256, 943 N.E.2d 553 (2011).
When the Court decided the Fostoria case, it looked to whether state or local government had authorized a private entity to perform "a public service" as "supported by public taxation." State ex rel. Fostoria Daily Review Co. v. Fostoria Hospital Ass'n, 40 Ohio St. 3d 10, 11-12, 531 N.E.2d 313, 315 (1988).
Under that former test: State ex rel. Plain Dealer Publishing Co. v. City of Cleveland, 75 Ohio St. 3d 31, 661 N.E.2d 187 (1996) (resumes received by private executive search firm hired by city to find candidates for post of city police chief); State ex rel. Toledo Blade Co. v. Univ. of Toledo Foundation, 65 Ohio St. 3d 258, 602 N.E.2d 1159 (1992) (records of donors to private corporation that functioned as alter-ego of state university); State ex rel. Mazzaro v. Ferguson, 49 Ohio St. 3d 37, 550 N.E.2d 464 (1990) (workpapers of a private accounting firm generated in auditing the finances of a municipality); State ex rel. Findlay Publishing Company v. Hancock County Board of Commissioners, 80 Ohio St. 3d 134, 684 N.E.2d 1222 (1997) (settlement agreement prepared by the attorney for the county's insurer); State ex rel. Freedom Communications Inc. v. Elida Community Fire Company, 82 Ohio St. 3d 578, 697 N.E.2d 210 (1998) (investigative report prepared by private, nonprofit corporation that contracted with townships to provide fire-fighting services). But see State ex rel. Farely v. McIntosh, 134 Ohio App. 3d 531, 731 N.E.2d 726 (Montgomery App. 1998) (records compiled by court-appointed psychologist are personal, not public, records).
Ohio Rev. Code § 149.431 requires nonprofit corporations receiving public funds to make available to the public financial statements and the contracts pursuant to which the corporations receive the public funds.
Ohio Rev. Code § 9.92 exempts from the public records statute private organizations receiving public funds and named as official county organs to reward citizens who provide tips leading to the solving of crimes (citizen reward programs).
Aside from analyzing whether providing public services under governmental authority subjected a private entity to the Public Records Act as a de facto public office, the Ohio Supreme Court has subjected private entities to the public's right to inspect and copy records to the extent that those records document performing services delegated to them by the government. That theory applies where the government monitors the private entity's performance of the delegated services and has access to the private entity's records for that purpose. State ex rel. Mazzaro v. Ferguson, 49 Ohio St. 3d 37, 550 N.E.2d 464 (1990).
But the court rejected the Mazzaro delegation theory when it declined to require advisory groups of private citizens and public officials to open various records even though a county charter authorized the county to retain those groups to study various components of local government and to recommend components for the county to adopt. State ex rel. Am. Civ. Liberties Union of Ohio, Inc. v. Cuyahoga Cty. Bd. Of Comm’s, 128 Ohio St.3d 256, 943 N.E.2d 553, 2011-Ohio-625 (where an entity only produces recommendations for a public office, the records used to produce those recommendations are not public records).
A requester may sue either the public office or a "person responsible for a public record." Ohio Rev. Code § 149.43(C)(1).
A "person responsible" can be a private entity performing a delegated or privatized governmental service. "[T]he disjunctive used in R.C. 149.43(C) manifests an intent to afford access to public records, even when a private entity is responsible for the records.” State ex rel. Mazzaro v. Ferguson, 49 Ohio St. 3d 37, 550 N.E.2d 464 (1990); State ex rel. Findlay Publ'g Co. v. Hancock Cty. Bd. of Comm'rs, 80 Ohio St. 3d 134, 684 N.E.2d 1222 (1997) (ordering disclosure of settlement agreement when county's attorney possessed the agreement).
Compare5. Multi-state or regional bodies
The statute does not expressly address Multi-state or regional bodies, but to the extent that the membership of such bodies includes a majority of the members of a public body of Ohio or a political subdivision, records generated by the multistate or regional board that pertain to the business of the Ohio body likely would be available to the public. State ex rel. The Fairfield Leader v. Ricketts, 56 Ohio St. 3d 97, 564 N.E.2d 486 (1990) (Village’s charter required it to create and make available minutes for meeting among County, Village, and Township officials arranged jointly by Mayor and property developer to discuss plans for future development).
Compare6. Advisory boards and commissions, quasi-governmental entities
The statute does not address advisory boards, commissions, and quasi-governmental entities, but if such a board or commission possesses records generated in the course of performing a duty delegated by a public office and such records may be subject to some degree of control by the office, it is likely that the records would be available to the public under the public records statute. See State ex rel. Mazzaro v. Ferguson, 49 Ohio St. 3d 37, 550 N.E.2d 464 (1990); but see State ex rel. Am. Civ. Liberties Union of Ohio, Inc. v. Cuyahoga Cty. Bd. Of Comm’s, 128 Ohio St.3d 256, 2011-Ohio-625.
Compare7. Others
Records kept by any "public office" are public records and subject to mandatory disclosure. Ohio Rev. Code § 149.43(A)(1). "Public office" is defined as including "any state agency, public institution, political subdivision, or other organized body, office, agency, institution, or entity established by the laws of this state for the exercise of any function of government." Ohio Rev. Code § 149.011(A).
Where an organization or entity is not obviously a "public office," the key to determining whether any of its records must be released is to apply either the functional-equivalency test or the Mazzaro delegation test. E.g., State ex rel. Am. Civ. Liberties Union of Ohio, Inc. v. Cuyahoga Cty. Bd. Of Comm’s, 128 Ohio St.3d 256, 2011-Ohio-625.
CompareC. What records are and are not subject to the act?
Compare1. What kinds of records are covered?
All "public records" are available for public inspection and copying. A "public record" is any record that is "kept by any public office." Ohio Rev. Code § 149.43(A),(B).
A "record" is "any document, device, or item, regardless of physical form or characteristic, including an electronic record, . . . created or received by . . . any public office of the state or its political subdivisions, which serves to document the organization, functions, policies, decisions, procedures, operations, or other activities of the office." Ohio Rev. Code § 149.011(G).
The statute used to define "public record" as those records required by law to be kept by a public office, but the Ohio General Assembly amended the statute to delete that language. The statute now defines "public record" as simply "records kept by any public office," which broadens the scope of what kinds of records qualify as public records.
Notwithstanding that legislative amendment, the Ohio Supreme Court has ruled that, if information recorded in physical form is kept by a public office, it may not qualify as a "record" under Ohio Rev. Code § 149.011(G), and therefore cannot be a "public record." Examples: Unsolicited letters received and read by a judge in which the authors advocated leniency in the sentencing of a convicted rapist did not count as "records" because the judge testified that she did not base her subsequent sentencing decision on anything in the letters. State ex rel. Beacon Journal Publishing Co. v. Whitmore, 83 Ohio St. 3d 61 (1998). See also State ex rel. Sensel v. Leone, 85 Ohio St. 3d 152, 707 N.E.2d 496 (1999) (reinstating trial court's judgment that unsolicited letters from parents received and read by public school superintendent and high school principal, which criticized and praised controversial high school basketball coach, were not "records" and could be thrown away at the sole discretion of the public school officials).
A city employee's personal handwritten notes in carrying out his official duties at city hall were not "records" because they were taken for his own convenience, were not kept as part of the city's official records, and no other city officials had access to or used the notes. State ex rel. Cranford v. Cleveland, 103 Ohio St. 3d 196, 814 N.E.2d 1218, 2004-Ohio-4884.
Jury questionnaire questions are "records," but the potential jurors' responses are not "records" because the court does not use the answers "in rendering its decision, but rather collect[s] the questionnaires for the benefit of litigants." State ex rel. Beacon Journal Publ'g Co. v. Bond, 98 Ohio St. 3d 146, 781 N.E.2d 180, 2002-Ohio-7117 (ordering disclosure of the questionnaire responses, juror names, and juror addresses on constitutional grounds).
State employee home addresses are not "records" because they do not "document the organization, functions, policies, decisions, procedures, operations, or other activities" of the state agencies and are kept by the state only as an administrative convenience. State ex rel. Dispatch Printing Co. v. Johnson, 106 Ohio St. 3d 160, 833 N.E.2d 274 (2005). A roster of names and addresses of minors who signed up for a municipal recreation department's voluntary identification-badge program was not a "record." State ex rel. McCleary v. Roberts, 88 Ohio St. 3d 365, 725 N.E.2d 1144, 2000-Ohio-345. See also State ex rel. O'Shea & Assocs. Co., L.P.A. v. Cuyahoga Metro. Hous. Auth., 131 Ohio St. 3d 149, 159, 962 N.E.2d 297, 307, 2012-Ohio-115, ¶ 49 (questionnaires and releases from liability used by a county agency to identify children suspected of being exposed to lead are public records subject to disclosure with redactions to protect personally identifiable information).
Internal e-mails generated by county employees on county time using county computer systems, which allegedly contained racist epithets, did not qualify as "records" because the e-mails did not document the authorized activities of that county agency. State ex rel. Wilson-Simmons v. Lake County Sheriff's Dept., 82 Ohio St. 3d 37, 693, N.E.2d 789 (1998).
A public record does not lose its status as a "public record" though a public office transfers possession of a public record to a private entity. State ex rel. The Cincinnati Enquirer v. Krings Hamilton App. No. C-000408, 2000 Ohio App. LEXIS 5854 (Dec. 15, 2000) ("The respondents in this case cannot play a shell game with public records. The public has a right of access to the records, regardless of where they are physically located, or in whose possession they may be."); State ex rel. Findlay Publ'g Co. v. Hancock Cty. Bd. of Comm'rs, 80 Ohio St. 3d 134, 684 N.E.2d 1222 (1997) (ordering disclosure of settlement agreement when county's attorney possessed the agreement).
Compare2. What physical form of records are covered
A "record" includes "any document, device, or item, regardless of physical form or characteristic," including those “created, generated, sent, communicated, received, or stored by electronic means.” Ohio Rev. Code §§ 149.011(G), R.C. 1306.01(G).
A public record includes microfilm, video or audio tape, email, and electronically stored documents. State ex rel. Cincinnati Enquirer v. Ohio Dept. of Pub. Safety, 148 Ohio St.3d 433, 71 N.E.3d 258, 2016-Ohio-7987 (police dash-camera video recordings documenting police chase and subsequent arrest); State ex rel. Toledo Blade Co. v. Seneca Cty. Bd. of Commrs., 120 Ohio St. 3d 372, 383, 899 N.E.2d 961, 973, 2008-Ohio-6253, ¶ 41 (deleted emails); State ex rel. Carr v. London Corr. Inst., 144 Ohio St.3d 211, 41 N.E.3d 1203, 2015-Ohio-2363 (emails);Lorain County Title Co. v. Essex, 53 Ohio App. 2d 274, 373 N.E.2d 1261 (1976)(microfilm); State ex rel. Harmon v. Bender, 25 Ohio St. 3d 15, 494 N.E.2d 1135 (1986)(videotapes of contempt trial); State ex rel. Multimedia Inc. v. Whalen, 48 Ohio St. 3d 41, 549 N.E.2d 167 (1990)(audiotapes of officer-involved shooting); State ex rel. Slagle v. Rogers, 103 Ohio St. 3d 89, 814 N.E.2d 55, 2004-Ohio-4354 (audiotapes of a suppression hearing); State ex rel. Data Trace Info. Servs., L.L.C. v. Cuyahoga Cty. Fiscal Officer, 131 Ohio St. 3d 255, 263, 963 N.E.2d 1288, 1297, 2012-Ohio-753, ¶ 41(digital copies of deeds and other real estate records kept by county recorder).
Public offices are entitled to deny requests that qualify as too broad, despite amorphous judicially-created criteria for judging whether a request is too broad. But public offices must “organize and maintain public records in a manner that they can be made available for inspection or copying” and “provide the requester with an opportunity to revise the request by informing the requester of the manner in which records are maintained by the public office and accessed in the ordinary course of the public office's or person's duties.” Ohio Rev. Code § 149.43(B)(2). Plus, for electronically-stored records, public offices must “keep and make readily available to the public the machines and equipment necessary to reproduce the records and information in a readable form.” Ohio Rev. Code § 9.01.
Where a public record is recorded electronically or on some medium other than paper, a requester has a right to choose to receive a copy of the record on paper, upon the same medium on which it is kept by the public office, or on some other medium upon which the public office can reasonably duplicate the record. Ohio Rev. Code § 149.43(B)(6); State ex rel. Dispatch Printing Co. v. Morrow Cty. Prosecutor's Office, 105 Ohio St. 3d 172, 824 N.E.2d 64 (2005) (public entitled to 911 audiotape, not just a transcript).
More recent cases have analyzed relevant questions about new types of media (e.g., text messages) without specifically finding whether the content qualified as public record. State ex rel. Glasgow v. Jones, 119 Ohio St.3d 391, 894 N.E.2d 686, 2008-Ohio-4788, ¶ 19 (declining to decide whether text messages sent and received by a state representative were public record); State ex rel. Cincinnati Enquirer v. Deters, 148 Ohio St. 3d 595, 600, 71 N.E.3d 1076, 1081, 2016-Ohio-8195, ¶ 21 (analyzing whether requested release of police body camera footage was prompt without explicitly adjudicating that the footage was public record).
Recorded public information is supposed to be disclosed even if not organized in the format requested. State ex rel. Cater v. City of N. Olmsted, 69 Ohio St. 3d 315, 631 N.E.2d 1048 (1994) (relator who requested list of police aptitude scores was entitled to the underlying documents even when the requested list did not exist).
Compare3. Are certain records available for inspection but not copying?
The statute provides that every record available for public inspection is also available for copying. Ohio Rev. Code § 149.43(B).
When a party to any court action requests an official court transcript under Ohio Rev. Code § 2301.24, the party must pay the fees designated by that statute, and cannot take advantage of the lower "at cost" fees imposed under the Public Records Act. State ex rel. Slagle v. Rogers, 103 Ohio St. 3d 89, 814 N.E.2d 55, 2004-Ohio-4354, clarified on reconsideration by State ex rel. Slagle v. Rogers, 106 Ohio St.3d 1402, 2005-Ohio-3040 (party to an action my not circumvent payment of official court reporter fees for a copy of a transcript under 2301.24, but may “freely inspect, without copying … as permitted by R.C. 149.43(B)”).
Compare4. Telephone call logs
The public records statute does not explicitly address telephone call logs, and the Ohio courts have not explicitly adjudicated the status of telephone logs, but such logs are almost certainly public records. See State ex rel. Dispatch Printing Co. v. Morrow County Prosecutor's Office, 105 Ohio St.3d 172, 824 N.E.2d 64, 2005-Ohio-685 (audio tapes of 911 calls are public record);
State ex rel. Bott Law Group, LLC v. Ohio Dep’t of Nat. Res., Ohio App. 10th Dist. No. 12AP-448, 2013-Ohio-5219 (Nov. 26, 2013)(ordering public office to prepare all non-exempt public records responsive to relator’s request, which included requests for call logs and notes); (State ex rel. Evans v. City of Parma, Ohio App. 8th Dist. No. 81236, 2003-Ohio-1159 (Mar. 13, 2003)(mandamus claim was moot in request for police dispatch and service call records when City provided responsive records).
Compare5. Electronic records (e.g., databases, metadata)
To be a "public record," the recorded information must first be a "record" under R.C. 149.011(G). That provision defines a "record" as "including an electronic record" as defined in another statute, Ohio Rev. Code § 1306.01.
Ohio Rev. Code § 1306.01 defines "electronic record" as "a record created, generated, sent, communicated, received, or stored by electronic means."
So if a public office keeps recorded information that qualifies as an "electronic record," that information would be available to the public to the same extent it would be if the public office stored the information on paper.
Another statute, Ohio Rev. Code § 9.01, authorizes public offices to store information electronically as well as by other means, including electronically. Section 9.01 requires all public offices using non-paper media for records storage to "keep and make readily available to the general public the machines and equipment necessary to reproduce the records and information in a readable form." Ohio Rev. Code § 9.01.
The Ohio Supreme Court's first thorough analysis of applying the Public Records Act to electronic records was in 1992, when it ordered the City of Cleveland to make copies of magnetic computer tapes containing data about how long it took for police to respond to calls for service. State ex rel. Magolius v. City of Cleveland, 62 Ohio St.3d 456, 584 N.E.2d 665 (1992).
Since then, the court has routinely applied the Public Records Act to order public offices to allow the public to inspect electronically-stored records. E.g., State ex rel Data Trace Info. Servs. LLC v. Cuyahoga Cty Fiscal Officer, 131 Ohio St.3d 255, 963 N.E.2d 1288, 2012-Ohio-753 (electronically-stored digital replicas of deeds and similar real estate records); State ex rel. Toledo Blade Co. v. Seneca Cty. Bd. of Commrs., 120 Ohio St.3d 372, 899 N.E.2d 961, 2008-Ohio-6253 (deleted emails); see also State ex rel. Bott Law Grp., L.L.C. v. Ohio Dep't of Nat. Res., Ohio App. 10th Dist. No. 12AP-448, 2013-Ohio-5219, ¶ 51 (Nov. 26, 2013) (ordering public office to “search its journal for responsive e-mail correspondence that were deleted in violation of its records retention policy, and … make reasonable efforts to identify all responsive records stored on the shared servers or on the personal computers").
Comparea. Can the requester choose a format for receiving records?
The requester can choose the medium upon which public records will be copied. Thus, where public records are stored electronically, the requester has the right to choose a paper printout or a computer disk or computer tape. Ohio Rev. Code § 149.43(B)(6).
The requester can choose a format for receiving records so long as the computer is already programmed to produce the information in that format, but there is no duty to compile information in a way not already permitted by the existing computer program. State ex rel. Scanlon v. Deters, 45 Ohio St. 3d 376, 379, 544 N.E.2d 680 (1989), overruled on other grounds by State ex rel. Steckman v. Jackson, 70 Ohio St.3d 420, 639 N.E.2d 83 (1994).
Compareb. Can the requester obtain a customized search of computer databases to fit particular needs
The Public Records Act does not compel a public office “to do research or to identify records containing selected information.” State ex rel. Shaughnessy v. Cleveland, 149 Ohio St. 3d 612, 614, 76 N.E.3d 1171, 1174, 2016-Ohio-8447, ¶ 10; but see, State ex rel. Bott Law Grp., L.L.C. v. Ohio Dep't of Nat. Res., (Ohio App. 10th Dist. No. 12AP-448) 2013-Ohio-5219, ¶ 51 (Nov. 26, 2013)(ordering public office to “search its journal for responsive e-mail correspondence that were deleted in violation of its records retention policy, and … make reasonable efforts to identify all responsive records stored on the shared servers or on the personal computers").
The requester should be entitled to conduct a search of electronic records using “the machines and equipment necessary to reproduce the records and information in a readable form” under Ohio Rev. Code § 9.01.
Where each requested digital tax map "is a new image that the computer creates when the requester inputs search terms," the requester may obtain paper copies "by inputting search terms into the computer at the engineer's office and paying the cost for each document printed." State ex rel. Gambill v. Opperman, 135 Ohio St.3d 298, 301-302, 986 N.E.2d 931, 935, 2013-Ohio-761, ¶ 16.
Comparec. Does the existence of information in electronic format affect its openness?
No. State ex rel. Athens County Property Owners Ass'n, Inc. v. City of Athens, 85 Ohio App. 3d 129, 619 N.E.2d 437 (Ohio App. 4th Dist. 1992); State ex rel. Margolius v. City of Cleveland, 62 Ohio St. 3d 456, 584 N.E.2d 665 (1992).
Compared. Online dissemination
The Public Records Act does not require a public office to post public records online on the office's website. State ex rel. Patton v. Rhodes, 129 Ohio St.3d 182, 950 N.E.2d 965, 2011-Ohio-3093.
The statute authorizes a public office to choose "to provide some or all of its public records on a web site that is fully accessible to and searchable by members of the public at all times." Ohio Rev. Code § 149.43(b)(7)(c)(ii).
A related statute bars a public office from including individual social security numbers on public records that the office posts on its website. Ohio Rev. Code § 149.45(B).
The same statute allows a public office to comply with a request by any individual to redact that individual's "personal information" from any public record on the office's website. Personal information is an individual's social security number, tax identification number, financial account number, and medical account number. Ohio Rev. Code § 149.45(A), (C).
In addition to redacting personal information, a public office may redact a law enforcement officer's address from a record posted on the office's website. Ohio Rev. Code § 149.45(D).
Compare6. Email
Compare7. Text messages and other electronic messages
Compare8. Social media posts
Compare9. Computer software
Proprietary software is not a public record, even if needed to access public records. State ex rel. Recodat Co. v. Buchanan, 46 Ohio St. 3d 163, 546 N.E.2d 203 (1989).
The owner of a real estate appraisal business used to obtain from a county engineer digital copies electronically-stored aerial photographs and tax maps to use in his business. When the county changed software, the engineer's office could no longer create data files for the public in readable form because the data was only readable with copyrighted software licensed to the county.
The county demanded $2,000 to retrieve the requested electronic maps and photographs and then separate the data from the copyright-protected software. The business owner sued, but didn't claim that the software was public record, and did not he seek a copy of the software.
The business owner argued that the raw data was public, and that the county should bear the $2,000 cost to separate the data from the software. The Ohio Supreme Court ruled that the business owner had to pay the $2,000 cost if he wanted the data separated from the software. But if he wanted the data together with the copyright-protected software, he could not get it because of the federal Copyright Act, which protected the copyright owner from unauthorized copying of the software. The county relied on an exception in the Public Records Act for records "the release of which is prohibited by state or federal law." State ex rel. Gambill v. Opperman, 135 Ohio St.3d 298, 986 N.E.2d 931, 2013-Ohio-761.
Compare10. Can a requester ask for the creation or compilation of a new record?
CompareD. Fee provisions
Compare1. Types of assessable fees (e.g., for search, review, duplication) and levels or limitations on fees
The statute provides that copies are available "at cost." Ohio Rev. Code § 149.43(B).
The statute does not define "cost," but the Ohio Supreme Court has interpreted "cost" as actual cost, and does not include any labor expenses for public employee time. See State ex rel. Data Trace Info. Servs., L.L.C. v. Cuyahoga Cty. Fiscal Officer, 131 Ohio St. 3d 255, 264, 963 N.E.2d 1288, 1297, 2012-Ohio-753, ¶ 43. In effect, "cost" is limited to the "actual cost" of depleted supplies, such as toner and paper, used in making copies. Id., citing State ex rel. Warren Newspapers Inc. v. Hutson, 70 Ohio St. 3d 619, 626, 640 N.E.2d 174, 180 (1994); See also State ex rel. Strothers v. Murphy, 132 Ohio App. 3d 645, 725 N.E.2d 1185 (Ohio App. 8th Dist. 1999) (police department required to charge no more than five cents per page for copying public records).
For computer-stored records, the cost charged should generally be the cost of copying the electronic records. State ex rel. Margolius v. City of Cleveland, 62 Ohio St. 3d 456, 584 N.E.2d 665 (1992) (holding that copying computer tapes creates an "increased financial burden" on the public office so the cost can be passed on to the requester). The Ohio Supreme Court held that a county had to pay for the cost of retrieving improperly deleted e-mails where the relator asked to inspect, not to copy, the records. State ex rel. Toledo Blade Co. v. Seneca County Bd. of Comm’rs, 120 Ohio St. 3d 372, 382, 899 N.E.2d 961, 2008-Ohio-6253.
Public offices may pass on the costs of contractors used to extract data from the copyright-protected software entangled with it. State ex rel. Gambill v. Opperman, 135 Ohio St. 3d 298, 305, 986 N.E.2d 931, 938, 2013-Ohio-761, ¶ 31 (reasonable for public office to pass on contractor’s quote for extracting requested electronic data from copyright-exempted software and copying it onto a hard drive as part of the actual cost); see also State ex rel. Margolius v. City of Cleveland, 62 Ohio St. 3d 456, 584 N.E.2d 665, FN4 (1992)(Public Records Act did not preclude the public office from passing costs of copying computer tapes with outside contractors directly to the requester).
The right to inspect, rather than copy, records cannot be conditioned on the payment of any fee, even if officials have to redact information exempt from disclosure before allowing the inspection. State ex rel. Warren Newspapers Inc. v. Hutson, 70 Ohio St. 3d 619, 624, 640 N.E.2d 174, 178 (1994).
Compare2. Particular fee specifications or provisions
Copies of public records through the mail: public offices must comply with a request that copies of records be transmitted to a requester by mail; but may charge a fee in advance before transmitting copies of public records by mail. The fee is limited to the cost of postage and related depleted supplies. Ohio Rev. Code § 149.43(B)(7).
An indigent criminal defendant is only entitled to one free copy of his criminal trial transcript. Additional requests, under the Public Records Act, require him to pay "cost" for additional copies and for postage and mailing supplies. State ex rel. Call v. Fragale, 104 Ohio St. 3d 276, 819 N.E.2d 294, 2004-Ohio-6589.
The Public Records Act authorizes the Bureau of Motor Vehicles to charge additional fees, including a net profit, for responding to a special kind of request. That special kind of request has the following elements: (1) it seeks copies of a record or information in a format other than the format already available, or information that cannot be extracted without examining all items in a database or class of records and (2) the requester intends to use or forward the copies for surveys, marketing, solicitation or resale for commercial purposes. Ohio Rev. Code § 149.43(F).
Under the special provision for Bureau of Motor Vehicles records, commercial purposes does not include newsgathering, nonprofit educational research, and gathering information to assist citizen oversight or understanding of the activities of government. For responding to those bulk commercial requests, the bureau may charge its actual costs (depleted supplies, mailing costs, and the like) plus labor plus 10 percent. The bureau also may charge for redacting information the release of which is prohibited by law. A requester need not specify his intended purpose. If the requester has a noncommercial purpose, he need only assure the bureau that he "does not intend to use or forward the requested copies for surveys, marketing, solicitation, or resale for commercial purposes." Ohio Rev. Code § 149.43(F).
The Ohio Supreme Court applied the Bureau of Motor Vehicles provision to justify a county engineer's demand for $2,000 to separate electronic public records from proprietary software even though the provision explicitly applies only to the Bureau of Motor Vehicles. State ex rel. Gambill v. Opperman, 135 Ohio St. 3d 298, 305, 986 N.E.2d 931, 938, 2013-Ohio-761.
Compare3. Provisions for fee waivers
The statute contains no provision for fee waivers, and no case law addresses the matter. As a practical matter, on an ad hoc basis related to convenience and the small number of pages copied, public offices occasionally charge no fees for copying public records.
A limited fee waiver resides in the statute's provision for requests to extract electronically-stored records of the Ohio Bureau of Motor Vehicles. In response to such requests, the Bureau of Motor Vehicles may charge the cost of depleted supplies and similar operating costs, labor, plus 10 percent when providing bulk volumes of information in formats not already available and for commercial marketing purposes.
Commercial marketing purposes does not include "reporting or gathering news, reporting or gathering information to assist citizen oversight or understanding of the operation or activities of government, or nonprofit educational research."
A requester who gives written assurance that he "does not intend to use or forward the requested records, or the information contained in them, for commercial purposes" is treated as having a noncommercial purpose, and so is subject to a lower fee. Ohio Rev. Code § 149.43(F).
Compare4. Requirements or prohibitions regarding advance payment
The statute allows the public office or person responsible for the public record to require advance payment for the cost involved in producing and mailing or transmitting the copy. Ohio Rev. Code § 149.43(B)(6),(7); State ex rel. Dehler v. Spatny, 127 Ohio St.3d 312, 939 N.E.2d 831, 2010-Ohio-5711.
As a practical matter, public offices usually do not require advance payment.
Compare5. Have agencies imposed prohibitive fees to discourage requesters?
Yes. Since the Ohio Supreme Court ruled in 1994 that labor charges could not be included as "cost" and that no fees can be charged for inspection, the imposition of prohibitive fees has diminished somewhat. See State ex rel. Warren Newspapers Inc. v. Hutson, 70 Ohio St. 3d 619, 640 N.E.2d 174 (1994).
Compare6. Fees for electronic records
CompareE. Who enforces the Act?
Only a person aggrieved by a public office's failure to produce requested records can sue. The appropriate mechanism for compelling compliance with the act is either by (1) an action in mandamus in the court of common pleas, court of appeals, or Ohio Supreme Court Ohio Rev. Code §§ 149.43(C)(1), or (2) filing a complaint in the Court of Claims, Ohio Rev. Code § 2743.75(C)(1).
Compare1. Attorney General's role
The Ohio Attorney General has no role in public records matters except to the extent that it advises state agencies and represents them when a requester sues them.
Compare2. Availability of an ombudsman
There is no ombudsman.
Compare3. Commission or agency enforcement
There is no administrative agency that enforces the Public Records Act.
CompareF. Are there sanctions for noncompliance?
The act provides fixed statutory damages of $100 per business day for non-compliance with a request, so long as the request is delivered by hand-delivery or certified mail. Ohio Rev. Code § 149.43(C); See, e.g., State ex rel. DiFranco v. S. Euclid, 138 Ohio St. 3d 367, 374, 7 N.E.3d 1136, 1142, 2014-Ohio-538, ¶ 28.
Statutory damages are not punitive, but instead represent the presumptive injury suffered by a requester for lost use of the requested records—due to the public office's delay in providing them.
A requester's eligibility for statutory damages does not begin until the day that a requester sues, so that is the first day that the public office could be liable for the $100-a-day damages. The most in statutory damages that a requester can recover for the public office's delay in providing the requested records is $1,000.
“Stacking” of statutory damages for “essentially the same records request” is not allowed, as “no windfall is conferred by the statute.” State ex rel. Dehler v. Kelly, 127 Ohio St.3d 309, 939 N.E.2d 828, 2010-Ohio-5724.
The statute authorizes a reviewing court to reduce statutory damages in whole or in part if it finds a person well-informed about the state of the law would conclude that the public office was complying with the current state of the law, and that nondisclosure furthered the public policy underlying whatever authority the public office relied upon in denying access to the records. Ohio Rev. Code § 149.43(C)(1).
The statute authorizes courts to award reasonable attorneys’ fees to a prevailing requester, but that award is discretionary with the court in most instances. Ohio Rev. Code § 149.43(C)(3). The court must award attorneys’ fees only where the public office ignores a request without responding at all, or where the office promises to provide the requested records within a specified period of time, but breaks that promise. Ohio Rev. Code § 149.43(C)(3).
A successful litigant is not entitled to attorney fees when the work is done by in-house counsel who did not receive any compensation beyond counsel's regular salary. State ex rel. Beacon Journal Publ'g Co. v. Akron, 104 Ohio St. 3d 399, 819 N.E.2d 1087, 2004-Ohio-6557.
CompareG. Record-holder obligations
Compare1. Search obligations
Compare2. Proactive disclosure requirements
The Ohio Revised Code contains numerous provisions requiring agencies to affirmatively disclose certain documents. See, e.g., Ohio Rev. Code §§ 107.41 (governor’s performance measures required to be posted online) 113.41 (online database of state-controlled real property); 125.112(B) (searchable website containing information about state contract awards); 125.20(A)(1) (state employee compensation database); 125.20(A)(2)(tax credit database); 1701.87(F)(1) (list of domestic corporations which have filed a certificate of dissolution or had its articles of incorporation cancelled); 3517.106(I) (campaign contributions and expenditures filed with secretary of state); 3797.08(C) (sex offender registry); 5120.66(B)(2) (internet database of custodial inmates), etc.
Much of this information (and more information not subject to mandatory disclosure by statute) is available online at Ohio’s Transparency website, https://www.ohio.gov/government/transparency/.
Compare3. Records retention requirements
The Public Records Act requires that public offices make a copy of its current records retention schedule “at a location readily available to the public.” Ohio Rev. Code. § 149.43(B)(2). Further, the Department of Administrative Services is required to establish a state records program, including the establishment of “general schedules” for disposal of records. Ohio Rev. Code § 149.331.
The State Auditor is required to retain the “work papers, documents, and materials prepared by a public account in the course of his audit of a public office” for a period of three years from the release date of the audit report. Ohio Rev. Code § 117.21.
If a public office deletes emails that are public records and retrievable by a technician, the office must produce those records upon request if the public office's records-retention schedule did not validly authorize their destruction. State ex rel. Toledo Blade Co. v. Seneca Cty. Bd. Of Commrs., 120 Ohio St.3d 372, 899 N.E.2d 961, 2008-Ohio-6253.
Compare4. Provisions for broad, vague, or burdensome requests
CompareII. Exemptions and other legal limitations
CompareA. Exemptions in the open records statute
Compare1. Character of exemptions
Exemptions are specific. Absent an express statutory exemption, records are open to the public. State ex rel. MADD Gosser, 20 Ohio St. 3d 30, 485 N.E.2d 706 (1985).
But even where no statutory exemption exists, recorded information kept by a public office may be unavailable to a requester because (1) the information fails to qualify as a "record" under the definition of "record" in Ohio Rev. Code § 149.011(G), or (2) the information is within the scope of the constitutional right to privacy under the 14th Amendment. See, e.g., State ex rel. McCleary v. Roberts, 88 Ohio St. 3d 365, 725 N.E.2d 1144, 2000-Ohio-345.
A public office cannot enter into enforceable promises to keep public records confidential. State ex rel. Findlay Publishing Co. v. Schroeder, 76 Ohio St. 3d 580, 669 N.E.2d 835 (1996) (coroner's promise to suicide victims' families to keep reports of his findings confidential); State ex rel. Dispatch Printing Co. v. Wells, 18 Ohio St. 3d 382, 481 N.E.2d 632 (1985) (labor agreement with police union); State ex rel. Finday Publishing Company v. Hancock County Board of Commissioners, 80 Ohio St. 3d. 134, 684 N.E.2d 1222 (1997) (confidentiality provision in settlement agreement between a citizen and a public entity unenforceable).
Not all statutory exemptions are contained within the statute itself. The Ohio Revised Code contains more than 400 separate statutory provisions addressing public records, many of them setting forth exemptions.
Exceptions to disclosure are strictly construed against the custodian of public records, and the burden to establish an exception is on the custodian. State ex rel. Findlay Publ'g Co. v. Schroeder, 76 Ohio St. 3d 580, 582, 669 N.E.2d 835, 838, 1996-Ohio-360.
Generally, the statute does not bar public offices from releasing records that are exempt from disclosure, it merely does not require public offices to disclose them—which gives public offices the discretion either to disclose them or to withhold them. See, e.g, Bentkowski v. Trafis, 56 N.E.3d 230, 240, 2015-Ohio-5139 ¶ 31 (Public Records Act does not create a cause of action for disclosure of exempt materials, and does not explicitly and directly impose a duty upon a public office not to disclose records).
The Ohio Attorney General publishes a manual regarding the Public Records Act in which it characterizes exemptions into categories of “must not release” and “may release, but may choose to withhold.” Ohio Sunshine Laws 2017: An Open Government Resource Manual, at 27-28 (2017).
The exemptions in Ohio's statute are not patterned after the federal Freedom of Information Act. The Ohio Supreme Court specifically has rejected the federal FOIA as an interpretive model for exemptions related to the Ohio statute. State ex rel. Findlay Publishing Co. v. Schroeder, 76 Ohio St. 3d 580, 669 N.E.2d 835 (1996) (“FOIA does not apply to state agencies or officers.”); State ex rel. Thomas v. Ohio State Univ., 71 Ohio St. 3d 245, 248 643 N.E.2d 126, 129 (1994)(“FOIA does not apply here, and R.C. 149.43 contains no similar personal-privacy exception”; State ex rel. Toledo Blade Co. v. Univ. of Toledo Foundation, 65 Ohio St. 3d 258, 602 N.E.2d 1159 (1992) (FOIA personal privacy exemption is statutory, not common-law, and does not apply in Public Records Act cases); See also State ex rel. Dist. 1999 v. Gulyassy, 107 Ohio App.3d 729, 737, 669 N.E.2d 487, 492 (10th Dist. 1995) (refusing to adopt an exemption for predecisional deliberative privilege as found in 5 U.S.C. 552(b)(5) to R.C. 149.43).
Compare2. Discussion of each exemption
a. Medical records: "any document or combination of documents, except births, deaths, and the fact of admission to or discharge from a hospital, that pertains to the medical history, diagnosis, prognosis, or medical condition of a patient and that is generated and maintained in the process of medical treatment." Ohio Rev. Code § 149.43(A)(3); see § 149.43(A)(1)(a).
To be exempt, a "medical record" must be maintained or generated in the process of medical treatment. A patient care report generated by an emergency medical service squad did not qualify where the squad found the victim dead when it arrived, and thus provided no medical treatment. State ex rel. Ware v. City of Cleveland, 55 Ohio App. 3d 75, 562 N.E.2d 946 (1989).
A psychological exam administered to candidates for public employment for the purposes of making hiring decisions is not a "medical record," and is not subject to the exemption. State ex rel. Multimedia Inc. v. Snowden, 72 Ohio St. 3d 141, 647 N.E.2d 1374 (1995)
b. Records pertaining to parole proceedings or proceedings related to the imposition of community control sanctions and post-release control sanctions. Ohio Rev. Code § 149.43(A)(1)(b).
c. Records of a minor female's action in juvenile court for approval of an abortion without parental notification and to appeals of those actions. Ohio Rev. Code §§ 149.43(A)(1)(c); 2151.85, 2919.121(C)(7); 2505.073. When an appeal of an action under § 2151.85 is taken in a court of appeals under § 2505.073, the public is entitled to certain information that does not directly or indirectly identify the minor or otherwise compromise the minor’s anonymity. That includes “(1) the docket number, (2) the name of the judge, and (3) the decision including, if appropriate, a properly redacted opinion.” State ex rel. Cincinnati Post v. Second Dist. Court of Appeals, 65 Ohio St. 3d 378, 381 604 N.E.2d 153, 156 (1992).
d. Records pertaining to adoption proceedings, including the contents of an adoption file maintained by the Ohio Department of Health. Ohio Rev. Code § 149.43(A)(1)(d); Ohio Rev. Code § 3705.12 et seq.
e. Records filed with state agencies related to the putative father registry established by Ohio Rev. Code § 3107.062. The putative father registry contains the name and address of individuals for the purpose of receiving notice of a petition to adopt the minor he claims as his child Ohio Rev. Code § 149.43(A)(1)(e).
f. Records filed with the Ohio health department containing information identifying the biological relatives of an adopted child. Ohio Rev. Code § 149.43(A)(1)(f); Ohio Rev. Code § 3107.52(A) (Formerly § 3107.42(A)).
g. Confidential records pertaining to mediation communications. Ohio Rev. Code § 149.43(A)(1)(i); Ohio Rev. Code § 2710.03.
h. Confidential records generated by the Ohio Civil Rights Commission during a preliminary investigation of alleged unlawful discriminatory practices. Ohio Rev. Code § 149.43(A)(1)(i); Ohio Rev. Code § 4112.05.
i. DNA records of the Ohio Bureau of Criminal Identification and Investigation, which is part of the office of the Ohio Attorney General. Ohio Rev. Code § 149.43(A)(1)(j); Ohio Rev. Code § 109.573.
j. Inmate records regarding youths released by the Ohio Department of Rehabilitation and Corrections to the Ohio Department of Youth Services or a court of record. Ohio Rev. Code § 149.43(A)(1)(k); Ohio Rev. Code § 5120.21(E).
k. Records of the Ohio Department of Youth Services related to children in its custody that are released to the Ohio Department of Rehabilitation and Correction. Ohio Rev. Code §§ 149.43(A)(1)(l), 5139.05.
l. "Intellectual property records," which are the work of researchers at state colleges or universities that has not yet been patented, published or publicly released. Ohio Rev. Code §§ 149.43(A)(1)(m); 149.43(A)(5).
m. "Donor profile records," which are records "about" donors or potential donors to a state college or university. However, the names, reported addresses of actual donors, the amount donated, the dates of donations, and the conditions of donations are not exempted. Ohio Rev. Code §§ 149.43(A)(1)(n), 149.43(A)(6).
n. Information maintained by the Ohio Department of Job and Family Services in its new hires directory. Ohio Rev. Code §§ 149.43(A)(1)(o), 3121.894.
o. Trade secrets of a county or municipal hospital. Ohio Rev. Code § 149.43(A)(1)(q); see Ohio Revised Code § 1333.61.
p. The address, telephone number, birth date, Social Security number, medical information and photographic image of a minor as that information pertains to the recreational activities of the minor or the obtaining of privileges to use public recreational facilities, as well as the address and phone number of the minor’s parent, guardian, or emergency contact. Ohio Rev. Code §§ 149.43(A)(1)(r), 149.43(A)(8).
q. Various records of a child fatality review board. Ohio Rev. Code § 149.43(A)(1)(s).
r. Certain statements provided to or by the executive director of a public children services agency or a prosecutor related to the death of a minor likely to have been caused by abuse, neglect, or other criminal conduct. Ohio Rev. Code §§ 149.43(A)(1)(t), 5153.171.
s. Test materials, examinations, evaluation tools used in an examination to license a person as a nursing home administrator. Ohio Rev. Code § 149.43(A)(1)(u).
t. Proprietary information related to Ohio's Venture Capital Program. Ohio Rev. Code §§ 149.43(A)(1)(w), 150.01.
u. Financial statements and other data submitted to the Ohio housing finance agency or the controlling board related to financial assistance provided by the agency. Ohio Rev. Code § 149.43(A)(1)(x).
v. Certain records related to day-care facilities regulated by the State. Ohio Rev. Code. § 149.43(A)(1)(y)
w. Records filed with a county recorded related to certain military discharges. Ohio Rev. Code § 149.43(A)(1)(z).
x. Names, addresses, and usage information for residential and commercial customers of a public utility. Ohio Rev. Code § 149.43(A)(1)(aa).
y. Certain records related to JobsOhio, “a private non-profit corporation designed to drive job creation and new capital investment in Ohio through business attraction, retention and expansion efforts.” Ohio Rev. Code § 149.43(A)(1)(bb); Ohio Rev. Code § 187.04(C); https://jobs-ohio.com/about-jobsohio/.
z. Certain information and records related to manufacturers and suppliers of drugs for lethal injections. Ohio Rev. Code § 149.43(A)(1)(cc); Ohio Rev. Code § 2949.221(B) and (C).
aa. Individuals’ social security numbers, tax identifications numbers, driver’s license or other state identification number, and financial or medical account numbers. Ohio Rev. Code § 149.43(A)(1)(dd); 149.45(A)(1).
bb. The name, address, and other personally identifiable information for individuals who have applied with the secretary of state for the address confidentiality program for certain victims of crime and other applicants who attest to fears for safety. Ohio Rev. Code § 149.43(A)(1)(ee); Ohio Rev. Code § 111.42 et seq.
cc. Certain orders related to military service (time-limited to fifteen years after the date of the call to order). Ohio Rev. Code § 149.43(A)(1)(ff).
dd. Home addresses, home telephone numbers, bank account numbers, and a variety of similar personal information used to administer employment benefits to and to employ a variety of public-safety officers in state and local government are exempt from mandatory disclosure. That variety of information is labeled "residential and familial" information. Ohio Rev. Code §§ 149.43(A)(1)(p), (A)(7).
But a journalist making a signed written request asserting that information would be in the public interest may obtain the street address of a peace officer, parole officer, prosecuting attorney, assistant prosecuting attorney, correctional employee, youth services employee, firefighter, investigator of the Bureau of Criminal Identification and Investigation, or EMT's residence and certain information about their family members. Ohio Rev. Code § 149.43 (B)(9).
Ohio Rev. Code § 149.43(B)(9)(c) defines “journalist” as “a person engaged in, connected with, or employed by any news medium, including a newspaper, magazine, press association, news agency, or wire service, a radio or television station, or a similar medium, for the purpose of gathering, processing, transmitting, compiling, editing, or disseminating information for the general public.”
The exemption for "residential and familial" information used to exempt "any record that identifies a person's occupation as" a police officer, firefighter, or emergency medical technician, which allowed the City of Cleveland to withhold from a newspaper photographs kept by the city of several uniformed officers who had been the subject of a city-promoted "photo op" when they were honored for valor. That provision is no longer in the statute. See State ex rel. Plain Dealer Publishing Co. v. Cleveland, 106 Ohio St. 3d 70, 831 N.E.2d 987 (2005).
v. Trial preparation records: "any record that contains information that is specifically compiled in reasonable anticipation of, or in defense of, a civil or criminal action or proceeding, including the independent thought processes and personal trial preparation of an attorney." Ohio Rev. Code §§ 149.43(A)(1)(g), (A)(4).
Where a public office is litigating against a private party, and obtains records from that private party in discovery, those records ordinarily qualify as "trial preparation records" during "the discovery phase of the litigation." Cleveland Clinic Found. v. Levin, 120 Ohio St. 3d 1210, 1212, 898 N.E.2d 589, 591, 2008-Ohio-6197, ¶ 10.
“[W]hen an investigation has multiple purposes, the records of that investigation cannot be said to be trial preparation records.” State ex rel. Cincinnati Enquirer v. Sage, 142 Ohio St. 3d 392, 395–96, 31 N.E.3d 616, 621, 2015-Ohio-974, ¶ 14.
The recording of a 911 call in which the caller says that he murdered someone is not a "trial preparation record" because all of those calls are recorded automatically, regardless of whether they have any actual or potential relation to civil or criminal litigation. So they are not "specifically complied in reasonable anticipation of" litigation. State ex rel. Cincinnati Enquirer v. Sage, 142 Ohio St. 3d 392, 395–96, 31 N.E.3d 616, 621, 2015-Ohio-974.
Investigations that precede a decision to litigate—just "to find out what the facts were"—is not sufficiently linked to the prospect of litigation to generate "trial preparation records." State ex rel. Coleman v. Cincinnati, 57 Ohio St.3d 83, 84, 566 N.E.2d 151 (1991); Franklin Co. Sheriff's Dept. v. SERB, 63 Ohio St. 3d 498, 589 N.E.2d 24 (1992) (State Employment Relations Board had to submit its investigatory records to court to decide in camera whether they would qualify as "trial preparation records").
Police investigations to see if a crime was committed —that precede any decision to initiate or defend litigation—"do not easily fit within" the exemption for "trial preparation records." State ex rel. Coleman v. Cincinnati, 57 Ohio St.3d 83, 84, 566 N.E.2d 151 (1991).
Trial preparation records do not lose their exempt status merely because they were produced in discovery to a criminal defendant—even though the criminal defendant has no legal duty to keep them confidential. The criminal defendant has them, and may be free to disseminate them, but that doesn't mean that the public office must disclose them to the public upon request. State ex rel. WHIO v. Lowe, 77 Ohio St.3d 350, 673 N.E.2d 1360 (1997).
Where the record was a public record at its inception, and later became part of the prosecutor's file, the record retains its status as a public record. So, a tape of a 911 call containing a homicide confession, which was a public record at its inception, does not become an exempt trial preparation record merely because the prosecutor has chosen to use it as evidence in a criminal prosecution. State ex rel. Cincinnati Enquirer v. Hamilton County, 75 Ohio St. 3d 374, 662 N.E.2d 334 (1996).
A "trial preparation record" retains its exempt status only until the completion of all trial court and appellate court proceedings. State ex rel. Steckman v. Jackson, 70 Ohio St. 3d 420, 639 N.E.2d 83 (1994), rev’d on other grounds in State ex rel. Caster v. Columbus, 151 Ohio St.3d 425, 89 N.E.3d 598, 2016-Ohio-8394.
A record generated in anticipation of internal employee discipline is not a "trial preparation" record. State ex rel. Police Officers For Equal Rights v. Lashutka, 72 Ohio St. 3d 185, 648 N.E.2d 808 (1995).
Settlement agreements that end a lawsuit are not "trial preparation" records. State ex rel. Kinsley v. Berea Bd. of Edn, 64 Ohio App. 3d 659, 582 N.E.2d 653 (1990); see also State ex rel. Cincinnati Enquirer v. Dupuis, 98 Ohio St. 3d 126, 781 N.E.2d 163 (2002) (trial preparation exemption does not apply to a proposal to settle potential litigation).
w. Confidential law enforcement investigatory records. Ohio Rev. Code § 149.43(A)(1)(h); Ohio Rev. Code § 149.43(A)(2). Requesters often seek records that public offices insist fall within this sophisticated exemption.
First: To qualify under this exemption, the records first must pertain to a "law enforcement matter." But enforcing a law is not confined to enforcing laws with criminal penalties. It applies also to enforcing laws that have sanctions that are treated as civil or administrative, and so have no potential imprisonment of other criminal attributes. Enforcing a regulation of the state environmental protection agency counts under this exemption because the regulation has an administrative sanction for failing to comply with the duty that it imposes.
Deciding whether a public office is acting to enforce a law isn't always easy. When a city fires an employee for insubordination, is the city enforcing a law? Usually the answer is "no." Instead the city is exercising its right to end its informal contract to employ the discharged worker.
Unlike a contract—where both sides agree—a law is a rule that binds the public or some portion of the public whether they agree with the rule or not. Only a government body authorized by a city charter or a state or federal constitution to produce such binding rules can produce laws. Legislatures and city councils have the power to create laws. Administrative agencies have the power to adopt regulations that are enforceable as laws, but only if a legislature or council has authorized the agency to do that. A single public official in the executive branch, such as the mayor or the public safety director or the director of human resources, rarely has the authority to make a law.
So, when police undertake a background investigation of a prospective public employee, or when they investigate facts for an official to decide whether to discipline or fire an existing employee, police are not "enforcing" a "law." State ex rel. Multimedia v. Snowden, 72 Ohio St. 3d 141, 647 N.E.2d 1374 (1995); State ex rel. Police Officers For Equal Rights v. Lashutka, 72 Ohio St. 3d 185, 648 N.E.2d 808 (1995); State ex rel. Freedom Communications v. Elida Community Fire Company, 82 Ohio St. 3d 578, 697 N.E.2d 210 (1998) (investigation of alleged sexual assault conducted internally as personnel matter is not law enforcement matter); State ex rel. Lorain Journal Co. v. City of Lorain, 87 Ohio App. 3d 112, 621 N.E.2d 894 (1993) (results of polygraph tests given to prospective employee).
Also, an agency cannot withhold records produced by a law enforcement investigation where that agency was not the one doing the investigating, and had no authority to undertake the investigation. State ex rel. Strothers v. Wertheim, 80 Ohio St.3d 155, 684 N.E.2d (1997) (records of an investigation of alleged child abuse in the custody of county ombudsman office that has no law enforcement authority).
Second: Second, the release of the requested records must "create" a "high probability" of disclosing certain "taboo" information listed in the exemption.
One would expect that, where the press already has publicized the "taboo" information, then releasing a record of that information could not "create" the probability of disclosing the information because that information already is in the public domain.
But the Ohio Supreme Court has decided otherwise. An uncharged suspect's identity may be "confidential" and thus redacted—even though press coverage already has identified the suspect. State ex rel. WLWT v. Leis, 77 Ohio St.3d 357, 673 N.E.2d 1365 (1997)(overruled on other grounds in State ex rel. Caster v. Columbus, 151 Ohio St.3d 425, 89 N.E.3d 598, 2016-Ohio-8394); State ex rel. Master v. City of Cleveland, 76 Ohio St. 3d 340, 667 N.E.2d 974 (1996).
The "taboo" information is:
a. The identity of a suspect who has not been charged with the offense to which the record pertains. What about the record of the police arresting someone who has not been charged with an offense? The authorities have taken away that person's liberty. Does the absence of a formal charge against that person mean that police may conduct essentially secret arrests so long as they detain the person without formally charging him or her? No. The Ohio Supreme Court has ruled that the exemption does not apply to records of arrests—regardless of whether the arrested person has not been charged with any offense. State ex rel. Outlet Communications Inc. v. Lancaster Police Dept., 38 Ohio St. 3d 324, 528 N.E.2d 175 (1988); State ex rel. Moreland v. City of Dayton, 67 Ohio St. 3d 129, 616 N.E.2d 234 (1993).
A "suspect" is a person who is a subject of investigation, but who has not been arrested, has not received a citation, and has not been indicted or named as a defendant in a criminal complaint. State ex rel. Polovischak v. Mayfield, 50 Ohio St. 3d 51, 552 N.E.2d 635 (1990).
That the police have labeled an investigation "inactive" so that the person in question is not currently a suspect is irrelevant; the exemption still applies. State ex rel. Moreland v. City of Dayton, 67 Ohio St. 3d 129, 616 N.E.2d 234 (1993); State ex rel. Ohio Patrolmen's Benevolent Association v. City of Mentor, 89 Ohio St. 3d 440, 732 N.E.2d 969 (2000) (The "absence of pending or highly probable criminal charges is not fatal to the applicability of the uncharged-suspect exemption"); State ex rel. Musial v. North Olmsted, 106 Ohio St. 3d 459, 835 N.E.2d 1243 (2005) (rejecting argument that exemption does not apply when a grand jury declines to indict and charges are unlikely). But see, Bentkowski v. Trafis, 56 N.E.3d 230, 239, 2015-Ohio-5139, ¶ 26, (The uncharged suspect exemption does not apply “because the closed police investigation did not include the name of any suspect since no crime was committed”).
b. The identity of an information source to whom confidentiality has been reasonably promised. The obvious choice here is a confidential police informant. The exemption applies even where police did not put a promise of confidentiality in writing. State ex rel. Martin v. City of Cleveland, 67 Ohio St. 3d 155, 616 N.E.2d 886 (1993).
Before a promise of confidentiality can be reasonable, it must be made on the basis of an individualized determination by the official that the promise is necessary to obtain the information. State ex rel. Toledo Blade Co. v. Telb, 50 Ohio Misc. 2d 1, 552 N.E.2d 243 (1990).
c. The identity of a witness to whom confidentiality has been reasonably promised. This part of the exemption is bad policy. For someone to qualify as a "witness," that person must have firsthand knowledge of information that is relevant to a violation of the law that authorities are trying to enforce. Despite the statutory exemption, witnesses testify publicly in open court virtually always, and their identities are placed on witness lists that are open to the public when filed with the court. Therefore, promising confidentiality to a bona fide "witness" should rarely be "reasonably" promised because the court system mandates making that person's identity public, and exceedingly rarely would abide by the promise if the law enforcement agency insisted that the witness testify in some way that conceals the witness' identity.
The exemption did not authorize a university to promise confidentiality to employees in exchange for obtaining information for use in deciding whether to promote or give tenure to another employee. State ex rel. James v. Ohio State Univ., 70 Ohio St. 3d 168, 637 N.E.2d 911 (1994).
Where an agency is investigating whether one of the agency's supervisors for allegedly sexually harassing subordinate employees, the investigator reasonably promised confidentiality to the alleged victims when interviewing them, and to other employees whom he interviewed. State ex rel. Yant v. Conrad, 74 Ohio St. 3d 681, 684, 660 N.E.2d 1211, 1214 (1996).
d. Information provided by an information source or witness to whom confidentiality has been reasonably promised, which information would reasonably tend to disclose the source's or witness' identity. State ex rel. Beacon Journal Pub. Co. v. Kent State Univ., 68 Ohio St. 3d 40, 43, 623 N.E.2d 51, 54, 1993-Ohio-146 (“If the victim's name and any identifying features are deleted, the text of the letters would not, directly or by inference, identify the informant. Thus, releasing the redacted letters creates no 'high probability of disclosure' of the confidential informant's identity.").
e. Specific confidential investigatory techniques.
f. Specific confidential investigatory procedures. Routine investigatory procedures do not qualify under this exemption. State ex rel. Beacon Journal Pub. Co. v. Univ. of Akron, 64 Ohio St. 2d 392, 415 N.E.2d 310 (1980).
g. Specific investigatory work product. This is probably the most litigated part of the confidential law investigatory records exemption. It covers the records produced by investigators in the course of a law enforcement investigation. Work product “means notes, working papers, memoranda, or similar materials prepared by law-enforcement officials in anticipation of litigation.” State ex rel. Cincinnati Enquirer v. Sage, 142 Ohio St. 3d 392, 397, 31 N.E.3d 616, 622, 2015-Ohio-974, ¶ 18.
The exemption applies to coroners' autopsy reports. State ex rel. Cincinnati Enquirer v. Pike County Coroner’s Office, __ N.E.3d __, 2017-Ohio-8988 (Ohio Supreme Court).
But records that were public records before the investigation started retain that status even if investigators gather and keep them in the course of investigating—even if they contain evidence of a crime. State ex rel. Cincinnati Enquirer v. Hamilton County, 75 Ohio St.3d 374, 662 N.E.2d 334 (1996) (911 tape with confession of homicide is public record).
Records that are unquestionably nonexempt, e.g., newspaper articles, contracts, campaign contributions, do not become exempt simply because they are the subject of grand jury subpoenas. State ex rel. Gannett Satellite Network Inc. v. Petro, 80 Ohio St. 3d 261, 685 N.E.2d 1223 (1997).
Information gathered during an investigation is not specific investigatory work product when it is not clear that a crime has occurred, because the records are then compiled by law enforcement investigators to determine if any crime has occurred. State ex rel. Ohio Patrolmen's Benevolent Association v. City of Mentor, 89 Ohio St. 3d 440, 732 N.E.2d 969 (2000).
When police officers first respond to a call for service, they document on a preprinted form (or digital form) what they saw and heard when they arrived at the scene of the incident. Those reports often are referred to by the press and public as "police reports." Caselaw interpreting the exemption for specific investigatory work product calls them "incident" reports or "offense/incident" reports—which often is the title that appears at the top of the form.
Incident reports are not specific investigatory work product, and so are public records. E.g., State ex rel. Miller v. Pinkney, 149 Ohio St.3d 662, 77 N.E.3d 915, 2017-Ohio-1335.
Because initial offense incident reports are public records, a narrative attached to an incident report must be disclosed without redaction even though it contains the name of an uncharged suspect. State ex rel. Beacon Journal Publishing Co. v. Maurer, 91 Ohio St. 3d 54, 741 N.E.2d 511, 2001-Ohio-282.
But the Ohio Supreme Court later addressed its decision in Maurer, saying that Maurer “did not adopt a per se rule that all police offense-and-incident reports are subject to disclosure notwithstanding the applicability of any exemption.” State ex rel. Cincinnati Enquirer v. Ohio Dep't of Pub. Safety, 148 Ohio St. 3d 433, 442, 71 N.E.3d 258, 267, 2016-Ohio-7987, ¶ 44.
The court noted that it had ruled a decade earlier that an incident report could be redacted to delete personal information about a child rape victim. State ex rel. Beacon Jrnl Pub. Co. v. City of Akron, 104 Ohio St.3d 399, 819 N.E.2d 1087, 2004-Ohio-6557.
In the Cincinnati Enquirer case decided in 2016, the court declined to rule that all video and audio recordings from police squad car dash-cameras are per se outside the exemption for specific investigatory work product. In that case, the court ruled that some of the recording documented specific investigatory work produce, and some did not. The court ruled that the exemption applied to the part of the recording where police questioned a suspect after advising him of his Miranda rights.
The exemption for specific investigatory work-product ceases to apply to investigatory records once the trial for which the records were generated is over. State ex rel. Caster v. Columbus, 151 Ohio St.3d 425, 89 N.E.3d 598, 2016-Ohio-8394 (overturning State ex rel. Steckman v. Jackson, 70 Ohio St.3d 420, 639 N.E.2d 83 (1994), which held that the work-product exemption continued to apply until all trial and post-trial proceedings are over and the criminal defendant has no possibility of retrial, and State ex rel. WLWT–TV5 v. Leis, 77 Ohio St.3d 357, 360, 673 N.E.2d 1365 (1997), which held that the exemption applied “until all proceedings are fully completed.”).
h. Information that would endanger the life or physical safety of at least one of these kinds of people:
• law enforcement personnel;
• a crime victim (which is almost always an accusing witness);
• a witness (which would include the victim);
• a confidential informant (called a "confidential information source").
The proponent of this exemption must show that "disclosure of the records will really pose a risk." State ex rel. Lippitt v. Kovacic, 70 Ohio App. 3d 525, 591 N.E.2d 422 (Cuya. App. 1991).
Apart from the exemption, the Ohio Supreme Court and the United States Court of Appeals for the Sixth Circuit, whose jurisdiction includes Ohio, have interpreted the 14th Amendment to the United States Constitution as barring the release of records to protect law enforcement officers from potential threats to their safety. If release of the records would place a law enforcement officer at substantial risk of death or serious bodily harm, a public office cannot release the records even if the Public Records Act would require a public office to release it. State ex rel. Keller v. Cox, 85 Ohio St.3d 279, 707 N.E.2d 931 (1999); Kallstrom v. City of Columbus, 136 F.3d 1055 (6th Cir. 1998); but see Kallstrom on remand, 165 F.Supp.2d 686 (S.D. Ohio 2001) (same police officers had no constitutional privacy interest where much of the information claimed to be constitutionally-protected was already in the public domain).
x. Records the release of which is prohibited by state law. Ohio Rev. Code § 149.43(A)(1)(v). The Ohio Revise Code contains hundreds of separate provisions excluding classes of records as "public records."
It is possible that a protective order, issued by a judge, may qualify a confidential settlement for the state law exemption, thus maintaining the secrecy of the settlement terms. See State ex rel. Cincinnati Enquirer v. Dupuis, 98 Ohio St. 3d 126, 781 N.E.2d 163 (2002).
The Ohio Supreme Court has adopted principles grounded in the constitutional separate of powers to find an executive privilege for the Ohio Governor’s internal communications. See State ex rel. Dann v. Taft, 109 Ohio St.3d 364, 368-380, 848 N.E.2d 472, 477-487, 2006-Ohio-1825 ¶¶ 20-74.
y. Records the release of which is prohibited by federal law. Ohio Rev. Code § 149.43(A)(1)(v).
The Ohio Supreme Court has ruled that the federal Copyright Act barred a county engineer from releasing digital copies of public records where the county would also have to release a copy of copyright-protected software to make the records readable. State ex rel. Gambill v. Opperman, 135 Ohio St.3d 298, 986 N.E.2d 931, 2013-Ohio-761.
The United States Court of Appeals for the Sixth Circuit and the Ohio Supreme Court have interpreted the federal constitutional right of privacy as barring release of public records if the release poses a substantial risk of death or serious bodily harm, specifically to law enforcement officers, but the principle could apply to anyone. Kallstrom v. City of Columbus, 136 F.3d 1055 (1998) (names, addresses, drivers licenses of alleged undercover police officers contained in police personnel files when requested by attorney for dangerous criminal defendants); but see Kallstrom on remand, 165 F.Supp.2d 686 (S.D. Ohio 2001) (same police officers had no constitutional privacy interest where much of the information claimed to be constitutionally-protected was already in the public domain).
See also State ex rel. Keller v. Cox, 85 Ohio St.3d 279, 707 N.E.2d 931 (1999) (relying on the federal court of appeals' ruling in Kallstrom); State ex rel. McCleary v. Roberts, 88 Ohio St.3d 365, 725 N.E.2d 1144, 2000-Ohio-345 (home addresses and telephone numbers for minors who applied for identification badges to facilitate use of municipal recreation facilities to requester who posed no demonstrated threat of harm).
The Ohio Supreme Court also has applied the 14th Amendment right to informational privacy to social security numbers of public employees because releasing the social security numbers posed a threat that someone might use them for identity theft. State ex rel. Beacon Journal Publishing Co. v. City of Akron, 70 Ohio St.3d 605, 640 N.E.2d 164 (1994).
CompareB. Other statutory exclusions
The Ohio Revised Code contains more than 400 separate statutory provisions addressing public records. Many of them make specific kinds of records exempt from the mandatory public access requirements of the public records statute. Many of those exemptions are listed below.
1. Citizen reward programs. Private organizations receiving public funds and named as official county programs to reward citizens who provide tips leading to the solving of crimes. Ohio Rev. Code § 9.92(E).
2. Securities. Records of the ownership, registration, transfer, and exchange of securities are not public records, nor are the records of the financial institution or person who issued the securities. Ohio Rev. Code § 9.96(C)(5). Information obtained by the division of securities is not available except to those having a direct economic interest in the information. Ohio Rev. Code § 1707.12; State ex rel. Cincinnati Enquirer, Div. of Gannett Satellite Info. Network Inc. v. Joyce, 97 Ohio St. 3d 192, 777 N.E.2d 253 (2002) (complaints lodged with the Ohio Division of Securities are not public records).
3. Ohio ethics commission complaints, investigations. All papers relating the proceedings of the Ohio ethics commission are private and confidential, except where the accused person also requests that the evidence and record of a hearing before the commission be made public. Ohio Rev. Code § 102.06(F).
4. Ohio Bureau of Criminal Identification and Investigation ("BCI") records. Information and material furnished to or procured by the superintendent of BCI concerning persons convicted of crimes, and known and habitual criminals. Information acquired by the superintendent as part of the Ohio Law Enforcement Gateway which is a data processing system for the storage and retrieval of information, data, and statistics regarding criminals. Information acquired by the superintendent of BCI in investigation of potential employees of other governmental agencies is confidential. Ohio Rev. Code § 109.57(D).
5. Investigatory records of the Ohio Attorney General generated in the course of investigations to enforce consumer protection laws or investigations of charitable foundations. Ohio Rev. Code §§ 1345.05(A)(7); 109.28.
6. Preliminary audits by the Auditor of the State. Until the state auditor files an audit report with certain officials of other state agencies, the audit reports produced by the auditor are not public records. Ohio Rev. Code §§ 117.14, 117.15, 117.26.
7. Attorney-client privilege. Communications between a defendant and a public defender “fully protected by the attorney-client privilege to the same extent and degree as though counsel had been privately engaged.” Ohio Rev. Code § 120.38(B). All information obtained by the public defender in determining if a person is indigent is not public record. Ohio Rev. Code § 120.38(A). The attorney-client privilege applies to records containing communications between members of a public office and its counsel about the legal advice given. State ex rel. Thomas v. Ohio State Univ., 71 Ohio St. 3d 245, 643 N.E.2d 126 (1994). Preliminary drafts of public documents reflecting information provided by an attorney and the legal advice flowing from that information are protected. State ex rel. Benesch Friedlander, Coplan & Arnoff LLP v. City of Rossford, 140 Ohio App. 3d 149, 746 N.E.2d 1139 (Wood App. 2000). The attorney-client privilege applies to in-house counsel at state agencies, even if they do not serve under the Office of the Attorney General. State ex rel. Leslie v. Ohio Hous. Fin. Agency, 105 Ohio St.3d 261, 824 N.E.2d 990 (2005). Further, the privilege does not except the fee charged or time spent by a government attorney. State ex rel. Beacon Journal Publishing Company v. Bodiker, 134 Ohio App. 3d 415, 731 N.E.2d 245 (Franklin App. 1999).
8. Minority business loan financial data. Financial statements and data submitted for minority business enterprise loans are not public records. Ohio Rev. Code § 122.74(C)(2).
9. Retirement benefits for individual retirees. The amount of a monthly allowance or benefit paid to a retiree, beneficiary, or survivor from the public employees retirement board is not a public record, along with specified other information related to public employment retirement benefits. Ohio Rev. Code §§ 145.27, 3307.20(B) (teachers), 3309.22(A)(2) (school employees), 5505.04 (state highway patrol).
10. Personal history record (name, address, telephone, Social Security number, etc.) of any member of the Ohio Police and Firemen's Pension Fund. Ohio Rev. Code § 742.41.
11. Organized crime task force records. Information gathered by the organized crime task force is a confidential law enforcement investigatory record for purposes of the public records statute. Ohio Rev. Code § 177.03(D)(5).
12. Income, estate, and property tax returns. Except pursuant to judicial order, tax returns are confidential. Ohio Rev. Code §§ 718.13 (municipal), 5703.21 (audits), 5711.10 (submission of verified federal income tax return in lieu of listing income yielding investments), 5711.101 (financial statement or balance sheet of a business required to be filed), 5731.90 (estate taxes).
13. Geological investigations. The chief of the division of geological survey may treat the records of his investigation of geological or mineralogical conditions of the state as confidential “so that industry, commerce, education, public health, and recreation may be advanced.” Ohio Rev. Code § 1505.03.
14. Mining test borings. Results of test boring submitted by applicants to engage in surface mining are confidential, except in legal actions in which the truthfulness of the information is material. Ohio Rev. Code § 1514.02(A)(9).
15. Credit union proceedings. All conferences and administrative proceedings of the superintendent of credit unions regarding credit unions are confidential. Ohio Rev. Code § 1733.327.
16. Information acquired by an agent of the Public Utilities Common of Ohio with respect to the "transaction, property, or business" of any public utility. Ohio Rev. Code § 4901.16.
17. Records of employer's annual report to the Ohio Industrial Commission of the number of employees employed and their aggregate wages. Ohio Rev. Code § 4123.27.
18. Antitrust investigation. Materials provided to the Attorney General pursuant to an investigative demand under Ohio's antitrust law. Ohio Rev. Code § 1331.16(L).
19. Records pertaining developmentally disabled person for whom the Ohio Department of Developmental Disabilities is acting as guardian. Ohio Rev. Code § 5123.57.
20. Information that would identify a person who provides to a board of education information about theft of or damage to school property. Ohio Rev. Code § 3313.173.
21. School pupils. Personally identifiable information concerning any pupils attending public school. Ohio Rev. Code § 3319.321.
22. Farmer information. Information furnished annually to the Ohio Director of Agriculture by farmers. Ohio Rev. Code § 917.17.
23. Arrested juveniles. Records of the arrest of juveniles and their photos are not public records unless the act alleged to have been committed by the arrested juvenile would be a felony if committed by an adult. Ohio Rev. Code § 2151.313(C).
24. Juvenile probation reports. Reports and records of the probation department of juvenile courts are not public. Ohio Rev. Code 2151.14(B).
25. Juvenile court records. Juv. R. P. 37(B). But see State ex rel. Scripps Howard Broad. Co. v. Cuyahoga Common Pleas Court, Juv. Div., 73 Ohio St. 3d 19, 652 N.E.2d 179 (1995) (Juv. R. 37(B) violates state and federal constitutions by allowing juvenile court to withhold transcript of proceeding that was open to the public).
26. Victim impact statements. Statements filed with the court about the impact of a crime are not available to the public. Ohio Rev. Code §§ 2947.051(C).
27. Child abuse records. Records of complaints and investigations of child abuse and neglect are confidential. Ohio Rev. Code § 2151.421(I).
28. Hospital quality assurance and peer review records. Information made available to a quality assurance committee or utilization committee of a hospital is confidential, as are records of hospital boards or committees reviewing professional qualifications of present or prospective members of the hospital medical staff. Ohio Rev. Code §§ 2305.24, 2305.252; State ex rel. Fostoria Daily Review Co. v. Fostoria Hosp. Ass'n, 44 Ohio St. 3d 111, 541 N.E.2d 587 (1989).
29. Search warrant hearing. Any transcript or recording of a hearing over whether the statutory precondition for nonconsensual entry by a law enforcement officer may be waived is not public until the search warrant is returned. Ohio Rev. Code § 2933.231(E).
30. Tuition credits. Records identifying the purchaser or beneficiary of tuition credits or college savings bonds are not public records. Ohio Rev. Code § 3334.11(J).
31. HIV test results. The Ohio Revised Code sets forth a specialized process for obtaining records regarding HIV status from the Department of Health. Ohio Rev. Code § 3701.243. Information obtained by the Department of Health’s partner notification system in conjunction with AIDS task forces are specifically excluded from public records; disclosure of these records requires an application using the process set forth in § 3701.243. Ohio Rev. Code § 3701.241(A)(7).
32. Donor for artificial insemination. Records related to the non-spousal donor for artificial insemination are available only to the recipient and the recipient's husband. Ohio Rev. Code § 3111.94(A).
33. Trade secrets. Air pollution control processes and water pollution control processes for which confidentiality has been maintained are trade secrets. Ohio Rev. Code §§ 3704.08, 3706.20, 6111.05, 6123.20.
The Ohio Uniform Trade Secrets Act, Ohio Rev. Code §§ 1333.61 et seq. defines a "person" who can have trade secrets to include "governmental entities." Ohio Rev. Code § 1333.61(C). Accordingly, the court has held that governmental entities can have their own trade secrets, such as financial information generated by a government-owned medical system. State ex rel. Besser v. Ohio State Univ., 87 Ohio St. 3d 535, 721 N.E.2d 1044 (2000).
34. Birth records. Where a birth record is changed and a new birth record issued, the original birth record is not available for inspection except by court order. Following adoption, a new birth record is issued and the original birth record ceases to be a public record. Ohio Rev. Code §§ 3705.09(G), 3705.12.
35. Foundling [child whose parents are unknown] records. A record of a foundling child ceases to be a public record if the foundling is later identified. Ohio Rev. Code § 3705.11.
36. Prescriptions, orders, and records of dangerous drugs. Prescriptions, orders, and records of dangerous drugs and controlled substances are open only to specific officials who have duties to enforce laws relating to those drugs. Ohio Rev. Code § 3719.13.
37. Nursing home records. Personal and medical records of nursing home, adult care resident patients, and residents of community alternative homes are confidential. 3721.13(10). Records which identify a person who has made a confidential complaint about a nursing home to the are not public records. Ohio Rev. Code § 3721.031 (Department of Health); 5165.88 (Department of Medicaid or contracting agency). Records identifying persons who report or provide information about suspected abuse, neglect, or exploitation are confidential without that person’s consent. Ohio Rev. Code § 3721.25. A request for rescission of finding of neglect on behalf of a nursing home is not a public record. 3721.23(D)(2)(b). Criminal background checks of potential nursing home employees are not public records. 3721.121(E).
38. Exams, tests used by Ohio Health Director. Test material, exams, evaluative tools used in a competency evaluation program by the director of health is not a public record. Ohio Rev. Code § 3721.31.
39. Radon test results. Any information required to be reported to the director of a public health council regarding radon test results are not public records. Ohio Rev. Code § 3723.09(H).
40. Social Security numbers of public employees or others. The federal constitutional right to privacy bars the public records statute from requiring public offices to permit inspection or copying of the Social Security numbers of public employees or other individuals. State ex rel. Beacon Journal Publishing Co. v. City of Akron, 70 Ohio St. 3d 605, 640 N.E.2d 164 (1994).
41. State lottery commission meetings. Records of the meetings of the state lottery commission are available only on a showing of good cause. Ohio Rev. Code § 3770.02.
42. Drug treatment programs. Records, except judicial records, pertaining to the identity, diagnosis, or treatment of any patient maintained in connection with the performance of any drug treatment program are confidential, and the names of any pregnant women and their children in drug or alcohol treatment programs are not public records. Ohio Rev. Code §§ 5119.17, 5519.61.
43. Insurance fraud investigations. All records in the possession of the division of insurance fraud of the state insurance department that pertain to an authorized investigation are confidential law enforcement investigatory records under the public records statute until the expiration of the statute of limitations applicable to the particular offense that was investigated. Ohio Rev. Code § 3901.44.
44. Insurance audits. The audit reports of CPAs conducting insurance audits are not public records. Ohio Rev. Code § 3901.48(A).
45. Work papers of superintendent of insurance. The work papers of the superintendent of insurance are not public record. Ohio Rev. Code § 3901.48(B).
46. Insurance trade association reports. Any reports of the Ohio commercial insurance joint underwriting association in connection with an action taken are not public record. Ohio Rev. Code § 3930.10.
47. Worker's compensation claims. No employee may divulge information regarding any claim being made to the worker's compensation board except to members of the worker's compensation commission or to the employee's superior except with the authorization of the administrator of the worker's compensation board or upon authorization of the claimant or employer. Ohio Rev. Code § 4123.88(B).
48. Information furnished to the Ohio Bureau of Employment Services by employers or employees. Ohio Rev. Code § 4141.21.
49. Accountant work papers. Records and work papers of a CPA or public accountant generated in the course of performing an audit of a public office or private entity, except reports submitted by the accountant to the client, are not public records. Ohio Rev. Code § 4701.19.
50. Patient identities revealed in the course of health care regulatory investigations. Patient identities contained in the records of the state medical board and the board of nursing are confidential. Ohio Rev. Code §§ 4723.28(I), 4731.22.
51. Applications for motor vehicle salvage licenses. Applications for motor vehicle salvage licenses are not public records. Ohio Rev. Code § 4738.14.
52. Investigations by board regulating physical therapy. Records of complaint investigations made by the board regulating occupational and physical therapists and athletic trainers are confidential. Ohio Rev. Code § 4755.61(A)(7).
53. Child daycare centers. Records of enrollment, health, and attendance of children at child daycare centers is not available for public inspection and copying, but may be furnished to parents, guardians, and for administration purposes. Ohio Rev. Code § 5104.038.
54. Mental health care facilities — job applicants. The investigatory crime reports of potential employees is not a public record. Ohio Rev. Code § 5519.181(C).
56. Residents/patients of mental hospitals, Department of Developmental Disabilities facilities. Except in specified circumstances, the identities of patients of mental hospitals and residents of institutions for the developmentally disabled are confidential. Ohio Rev. Code §§ 5122.31, 5123.89, 5123.62.
57. Reports of abuse or neglect of developmentally disabled. Reports of abuse or neglect in developmental disability homes, and reports of abuse and neglect prepared by the developmental disabilities board are not public records, and are available only to specified persons in specified circumstances. Ohio Rev. Code § 5126.31(M) (effective since Sep. 29, 2018).
58. Prison records. Most prison records are not available to the public, including records about inmates, architectural or construction drawings of a prison, hostage negotiation plans, statements by inmate informants, records of individuals under the supervision of the adult parole authority. Ohio Rev. Code § 5120.21; State ex rel. Harris v. Rhodes, 54 Ohio St. 2d 41, 374 N.E.2d 641 (1978).
59. Children in custody of department of youth services. Records pertaining to children in the custody of the state department of youth services are not public record. Ohio Rev. Code § 5139.05(D).
60. Investigations of foster homes. Records of investigations of foster homes by county boards or departments for human services are confidential. Ohio Rev. Code § 5153.17.
61. Grand jury records. Transcripts of grand jury proceedings are secret, and may only be disclosed by an order from the supervising court. Ohio R. Crim. P. 6(E); State ex rel. Collins v. O'Farrell, 61 Ohio St. 3d 142, 573 N.E.2d 113 (1991).
62. Grand jury subpoenas. Ohio R. Crim. P. 6(E); State ex rel. Beacon Journal Publishing Co. v. Waters, 67 Ohio St. 3d 321, 617 N.E.2d 1110 (1993).
63. Applications to Veterans Service Commission and related financial records. Financial statements and applications for financial assistance submitted to the Veterans Service Commission, and documents used to affect whether to grant or change financial assistance. Ohio Rev. Code § 5901.09.
CompareC. Court-derived exclusions, common law prohibitions, recognized privileges against disclosure
With one clear and one possible exception, the Ohio Supreme Court has refused to recognize judicially created exemptions based on common law notions of public policy, and has recognized only statutory exemptions or exemptions derived from either the federal constitutional right of privacy or the state constitutional doctrine of separation of powers. State ex rel. James v. Ohio State Univ., 70 Ohio St. 3d 168, 169, 637 N.E.2d 911, 912 (1994)(“Exceptions to disclosure must be strictly construed against the custodian of public records, and the burden to establish an exception is on the custodian.”); State ex rel. Toledo Blade Co. v. Univ. of Toledo Foundation, 65 Ohio St. 3d 258, 602 N.E.2d 1159 (1992); State ex rel. Keller v. Cox, 85 Ohio St.3d 279, 707 N.E.2d 931 (1999) (constitutional right of privacy barred access to police personnel records); State ex rel. Steffen v. Kraft, 67 Ohio St.3d 439, 619 N.E.2d 688 (1993) (judge's notes).
The clear exception is a "judicial mental process" privilege, which the Ohio Supreme Court applied to bar access to records of the adjudicatory deliberations of a local board of tax appeals. TBC Westlake Inc. v. Hamilton County Bd. of Revisions, 81 Ohio St. 3d 58, 689 N.E.2d 32 (1998). That privilege may have constitutional underpinnings because the court relied on its decision in Kraft, which stated that the constitutional doctrine of separation of powers barred access to a judge's notes taken during a hearing.
The possible exception is a “good sense” rule, suggested in dicta in several cases. State ex rel. Keller v. Cox, 85 Ohio St.3d 279, 707 N.E.2d 931 (1999) (personal information regarding undercover officers should not be turned over to criminal defendants who could use it for nefarious ends), State ex rel. McCleary v. Roberts, 88 Ohio St. 3d 365, 725 N.E.2d 1144, 2000-Ohio-345 (personal information regarding children should not be revealed because it could be posted on the internet where predators could access it). However, this “rule” was very intertwined in the facts and law of those cases, that it may have no general applicability. State ex rel. Cincinnati Enquirer v. Jones-Kelly, 118 Ohio St.3d 81, 886 N.E.2d 206 (2008)(“Keller was premised upon the constitutional right of privacy.”)
Constitutional Right of Privacy
The U.S. Court of Appeals for the Sixth Circuit has recognized a constitutional right of privacy within the Due Process Clause of the Fourteenth Amendment. The court found that the disclosure of police officers' personnel file to counsel for a criminal defendant "implicate[d] a fundamental liberty interest, specifically their interest in preserving their lives and the lives of their family members, as well as preserving their personal security and bodily integrity." Kallstrom v. Columbus, 136 F.3d 1055 (1998).
But on remand, the federal district court decided that there was no liability for the claimed unconstitutional disclosure, and ordered the public office to disclose the same information to the press. Kallstrom on remand, 165 F.Supp.2d 686 (S.D. Ohio 2001) (same police officers had no constitutional privacy interest where much of the information claimed to be constitutionally-protected was already in the public domain).
Relying on the federal court of appeals' ruling in Kallstrom, the Ohio Supreme Court held that the right of privacy prevents disclosure to a criminal defendant of police officers' files that contain the names of the officers' children, spouses, parents, home addresses, telephone numbers, beneficiaries, medical information, and the like. State ex rel. Keller v. Cox, 85 Ohio St. 3d 279, 707 N.E.2d 931 (1999).
The Ohio Supreme Court has also applied the constitutional right of privacy to exempt from disclosure names of police officers wounded in a shootout with a motorcycle gang in which an alleged gang member was killed. State ex rel. Cincinnati Enquirer v. Craig, 132 Ohio St.3d 68, 969 N.E.2d 243, 2012-Ohio-1999.
When it applies, the constitutional right of privacy trumps the statutory “journalist exception” found in R.C. 149.43(B)(9) authorizing the release of information about law enforcement and other emergency responders to journalists upon request if the information is in the public interest. State ex rel. Cincinnati Enquirer v. Craig, 132 Ohio St.3d 68, 969 N.E.2d 243, 2012-Ohio-1999.
The Ohio Supreme Court also has interpreted the federal constitutional right of privacy to bar access by even "a benevolent organization posing no threat" of harm to the home addresses and telephone numbers of minors in the context of those who used recreational facilities State ex rel. McCleary v. Roberts, 88 Ohio St. 3d 365, 725 N.E.2d 1144, 2000-Ohio-345 (citing Kallstron v. Columbus, 136 F.3d at 1064).
The court has applied the same constitutional right to bar release of public records where the release poses a risk of identity theft. The court ruled that the City of Akron could bar release of the social security numbers of its employees. State ex rel. Beacon Journal Publishing Co. v. City of Akron, 70 Ohio St. 3d 605, 640 N.E.2d 164 (1994).
Waiver of exemptions
Exemptions are usually fully applicable absent evidence that the public office having custody of the records disclosed the records to the public. State ex rel. Gannett Satellite Info. Network v. Petro, 80 Ohio St. 3d 261, 685 N.E.2d 1223 (1997); see also State ex rel. Ohio Republican Party v. FitzGerald, 145 Ohio St. 3d 92, 99, 47 N.E.3d 124, 131, 2015-Ohio-5056, ¶ 29 (“Release of FitzGerald's key-card-swipe data to the press also precludes the assertion that the data are excepted from disclosure pursuant to the public-records law.”). But see State ex rel. Master v. City of Cleveland, 76 Ohio St. 3d 340, 667 N.E.2d 974 (1996) (press publicity revealing identity of "uncharged suspect" does not defeat exemption).
Audits of state offices and related papers are generally subject to disclosure. Where grand jury records are included in the audit, any exemption for those records is waived. State ex rel. Gannett Satellite Network v. Petro, 80 Ohio St. 3d 261, 685 N.E.2d 1223 (1997).
Where other persons have a privilege of confidentiality in certain public records, the government's disclosure of those records does not waive the others' privileges of confidentiality. "Hence, when someone who is not authorized to waive the privilege discloses privileged information, the information remains privileged." State ex rel. Wallace v. State Medical Board of Ohio, 89 Ohio St. 3d 431, 732 N.E.2d 960, 2000-Ohio-213.
Exemptions are not affirmative defenses that must be raised in an answer to avoid waiver. State ex rel. Nix v. Cleveland, 83 Ohio St. 3d 379, 700 N.E.2d 12 (1998).
CompareD. Protective orders and government agreements to keep records confidential
CompareE. Interaction between federal and state law
Compare1. HIPAA
Compare2. DPPA
Compare3. FERPA
Compare4. Other
CompareF. Segregability requirements
CompareG. Agency obligation to identify basis of redaction or withholding
CompareIII. Record categories - open or closed
CompareA. Autopsy and coroners reports
Portions of autopsy reports may be exempt as confidential law enforcement investigatory records during a criminal investigation; “Once the criminal investigation ends, CLEIR contained in autopsy reports may assume the status of public records and become available to the public.” State ex rel. Cincinnati Enquirer v. Pike Cty. Coroner's Office, 2017-Ohio-8988, ¶ 56, reconsideration denied sub nom. State ex rel. Cincinnati Enquirer v. Pike Cty. Coroner's Office, 2018-Ohio-1600, ¶ 56, and reconsideration denied sub nom. State ex rel. GateHouse Media Ohio Holdings II, Inc. v. Pike Cty. Coroner's Office, 2018-Ohio-1600, ¶ 56.
Coroner reports of suicides are public records. State ex rel. Findlay Publishing Co. v. Schroeder, 76 Ohio St. 3d 580, 669 N.E.2d 835 (1996).
CompareB. Administrative enforcement records (e.g., worker safety and health inspections, or accident investigations)
The exemption for confidential law enforcement investigatory records applies to law enforcement actions of an “administrative nature,” and may be exempt. See State ex rel. Polovischak v. Mayfield, 50 Ohio St.3d 51, 52–53, 552 N.E.2d 635 (1990) (noting authority of Internal Security Committee of Bureau of Workers' Compensation (“BWC”) to investigate BWC employees who may have committed “criminal violations, abuse of office, or misconduct” [emphasis omitted] in determining whether committee's records of investigation of employee were exempt from disclosure); State ex rel. Mahajan v. State Med. Bd., 127 Ohio St.3d 497, 2010-Ohio-5995, 940 N.E.2d 1280, ¶ 29 (in light of investigatory power of medical board, records compiled during investigation of physician pertained to a law-enforcement matter of an administrative nature).
Records related to alleged violation of Blue Sky laws were exempt from disclosure during an active investigation, even if the records were not solicited by investigators. State ex rel. Cincinnati Enquirer, Div. of Gannett Satellite Info. Network, Inc. v. Joyce, 97 Ohio St.3d 192, 777 N.E.2d 253 (2002), Ohio Rev. Code § 1707.12.
CompareC. Bank records
Bank records are public records when possessed by a public office. State ex rel. Plain Dealer Publishing Co. v. Lesak, 9 Ohio St. 3d 1, 457 N.E.2d 821 (1984). However, the bank or public office may claim that bank records contain business or financial "trade secrets" that are exempt from mandatory disclosure. See State ex rel. Allright Parking Co. v. City of Cleveland, 63 Ohio St. 3d 772, 591 N.E.2d 708 (1992).
CompareD. Budgets
Budgets of public offices are public records. See State ex rel. Keating v. Skelton, Ohio App. 6th Dist. No. L-08-1414, 2009-Ohio-2052 (Apr. 23, 2009)(holding that the dog warden’s budget must be turned over where no argument was made for preventing the release).
CompareE. Business records, financial data, trade secrets
Certain financial records and contracts of entities which have entered into agreements with public agencies are public records, subject to exceptions that identify patients, or contain confidential professional services. Ohio Revised Code § 149.431.
The Ohio Supreme Court has applied Ohio's general law prohibiting disclosure of trade secrets to the financial records of a private business submitted to a public office under assurance that confidentiality would be maintained. State ex rel. Allright Parking Co. v. City of Cleveland, 63 Ohio St. 3d 772, 591 N.E.2d 708 (1992)(although application for approval of tax-abatement project was a public record, materials related to and submitted with the applications should have been reviewed in camera to determine if they were subject to an exemption); see also Brookville Equip. Corp. v. Cincinnati, Ohio App. 1st Dist. No. C-120434, 2012-Ohio-3648, ¶¶ 12-22 (same). The court has also held that governmental entities can create their own trade secrets that are excepted from disclosure. State ex rel. Besser v. Ohio State University, 87 Ohio St. 3d 535, 721 N.E.2d 1044 (2000) (state university hospitals financial data constituted trade secrets exempt from disclosure).
The costs to acquire investment property are not trade secrets, even if their disclosure adversely affects the government's ability to recoup its investment. State ex rel. Toledo Blade Co. v. Ohio Bureau of Workers' Comp., 106 Ohio St. 3d 113 (2005).
CompareF. Contracts, proposals and bids
Certain financial records and contracts of entities which have entered into agreements with public agencies are public records, subject to exceptions that identify patients, or contain confidential professional services. Ohio Revised Code § 149.431.
Competitive bids are open for public inspection and copying when unsealed in accordance with the notice given to the bidders. Ohio Rev. Code § 735.06. Trade secrets contained in bid applications remain exempt from disclosure unless there is a waiver. State ex rel. Fisher v. PRC Pub. Sector, Inc., 99 Ohio App. 3d 387, 393, 650 N.E.2d 945, 948 (1994) (“trade secrets are protected from disclosure under R.C. 149.43 unless there is a statutory waiver. There is no statutory waiver in this case, nor is there an agreement between the bidders and the state to waive trade secret protection upon submitting proposals.”).
CompareG. Collective bargaining records
Collective bargaining agreements are public record, even if not yet approved by the legislative authority of the political entity which is a party to the agreement. Beacon Journal Publishing Co. v. City of Stow, No. 12058, unreported (Summit App. 1985); State ex rel. Calvary v. City of Upper Arlington, 89 Ohio St. 3d 229, 729 N.E.2d 1182 (2000) (draft collective bargaining agreement).
CompareH. Economic development records
Economic development records are public records, but are subject to the trade secrets exception. State ex rel. Allright Parking of Cleveland, Inc. v. Cleveland, 63 Ohio St.3d 773, 591 N.E.2d 708 (1992).
CompareI. Election Records
The records of county boards of elections are public records. Ohio Rev. Code § 3501.31(C). Provisional ballots are kept sealed and confidential, and Ohio has created a system for an individual voter to check on the status of their own ballot. Ohio Rev. Code. § 3505.181(B)(5)(b). In 2011, the Ohio Attorney General issued an opinion stating, “[a] provisional ballot envelope is a “public record” subject to release once the time has passed during which a board of elections is required to preserve ballots under seal.” 2011 Ohio Op. Att'y Gen. No. 2011-012 (Apr. 13, 2011)
Voter registration records are public records. See State ex rel. Dispatch Printing Co. v. Johnson, 106 Ohio St.3d 160, 833 N.E.2d 274 (2005) (noting that the fact that home addresses were available in certain public records, including voter registration records, does not extinguish state employees’ privacy interests in that information).
CompareJ. Emergency Medical Services records
Emergency medical services records that are “medical records,” i.e., a record “that pertains to the medical history, diagnosis, prognosis, or medical condition of a patient and that is generated and maintained in the process of medical treatment” are not public records. Ohio Rev. Code § 149.43(A)(1)(a); State ex rel. Natl. Broad. Co. v. Cleveland, 82 Ohio App. 3d 202, 214, 611 N.E.2d 838, 845 (1992), cause dismissed sub nom. State ex rel. Natl. Broad., Inc. v. Cleveland, 66 Ohio St. 3d 1428, 608 N.E.2d 758 (1993). When an emergency run sheet pertains to a deceased individual, it is not a “medical record,” and is subject to disclosure absent another exemption. Id.
CompareK. Gun permits
Records related to the issuance, renewal, suspension, or revocation of a license to carry a concealed handgun are not public records. Ohio Rev. Code § 2923.129(B).
CompareL. Homeland security and anti-terrorism measures
Security and infrastructure records are not public records. Ohio Rev. Code § 149.433(B). An "infrastructure record" is defined as any record that discloses the configuration of a critical system; including communication, computer, electrical, mechanical, ventilation, water, and plumbing systems; security codes; or the infrastructure or structural configuration of a public building. Ohio Rev. Code § 149.433(A)(2). However, simple floor plans showing spatial arrangements of a building are not considered "infrastructure records." Ohio Rev. Code § 149.433(A)(2).
CompareM. Hospital reports
There is no statutory exemption for hospital reports. But, any record, except births, deaths, and the fact of admission or discharge from a hospital, that pertains to the medical history, diagnosis, prognosis, or medical condition of a patient that is generated and maintained in the process of medical treatment is exempt. Ohio Rev. Code § 149.43(A)(1)(a).
Also, records of hospital quality assurance committees and hospital boards or committees reviewing professional qualifications of present or prospective members of the hospital medical staff are exempt from mandatory disclosure. Ohio Rev. Code § § 2305.251, 2305.25; State ex rel. Fostoria Daily Review Co. v. Fostoria Hosp. Ass'n, 44 Ohio St. 3d 111, 541 N.E.2d 587 (1989).
CompareN. Personnel records
Personnel records are generally public records. State ex rel. Multimedia Inc. v. Snowden, 72 Ohio St. 3d 141, 647 N.E.2d 1374 (1995); State. ex rel. Dispatch Printing Co. v. Wells, 18 Ohio St. 3d 382, 481 N.E.2d 632 (1985).
Compare1. Salary
Salary rate and gross salary of public employees are public records. State ex rel. Petty v. Wurst, 49 Ohio App.3d 59, 550 N.E.2d 214 (Ohio App. 12th Dist. 1989).
Compare2. Disciplinary records
Disciplinary records are public records. See State ex rel. Dispatch Printing Co. v. Columbus, 90 Ohio St.3d 39, 734 N.E.2d 797 (2000) (holding that police disciplinary reports, including use of force reports and citizen complaints, were public records).
Compare3. Applications
The Supreme Court of Ohio has held that job application materials are public records. State ex rel. Consumer News Servs., Inc. v. Worthington City Bd. of Edn., 97 Ohio St.3d 58, 2002-Ohio-5311, ¶ 41 (“[t]he public has an unquestioned public interest in the qualifications of potential applicants for positions of authority in public employment.”); State ex rel. Gannett Satellite Information Network v. Shirey, 78 Ohio St.3d 400, 403 (1997); State ex rel. Beacon Journal Pub. Co. v. Akron Metro. Housing Auth., 42 Ohio St.3d 1, 535 N.E.2d 1366 (1989); State ex. Rel. The Plain Dealer Publishing Co. v. Cleveland, 75 Ohio St.3d 31, 661 N.E.2d 187 (1996) (holding that resumes of applicants for police chief were public records). But see State ex rel. Cincinnati Enquirer v. Cincinnati Bd. of Educ., 99 Ohio St. 3d 6, 788 N.E.2d 629 (2003) (holding that resumes that were returned to candidates immediately after interviews were not “kept” by the office and thus not public records).
Compare4. Personally identifying information
The U.S. Court of Appeals for the Sixth Circuit and the Ohio Supreme Court have interpreted the federal constitutional right of privacy as barring release of certain kinds of information to at least specific classes of requesters. Kallstrom v. City of Columbus, 136 F.3d 1055 (1998) (names, addresses, drivers licenses of undercover police officers contained in police personnel files when requested by attorney for dangerous criminal defendants); State ex rel. Keller v. Cox, 85 Ohio St.3d 279, 707 N.E.2d 931 (1999) (same); State ex rel. McCleary v. Roberts, 88 Ohio St.3d 365, 725 N.E.2d 1144, 2000-Ohio-345 (home addresses and telephone numbers for minors who applied for identification badges to facilitate use of municipal recreation facilities to requester who posed no threat of harm; State ex rel. Beacon Journal Publishing Co. v. City of Akron, 70 Ohio St.3d 605, 640 N.E.2d 164 (1994) (Social Security numbers to requester who posed no threat of harm).
Compare5. Expense reports
There is no statutory or case law addressing this issue.
Compare6. Evaluations/performance reviews
Compare7. Complaints filed against employees
Compare8. Other
CompareO. Police records
Police records that are confidential law enforcement investigatory records may be exempt from disclosure. Ohio Rev. Code §§ 149.43(A)(1), 149.43(A)(2).
Compare1. Accident reports
Public offices must provide access to accident reports. See State ex rel. Wadd v. City of Cleveland, 81 Ohio St.3d 50, 689 N.E.2d 25, 1998-Ohio-444 (holding that the city and police department must provide motor vehicle accident reports).
Compare2. Police blotter
Police blotters are the functional equivalent of ordinary incident reports. Incident reports are public record. E.g., State ex rel. Miller v. Pinkney, 149 Ohio St.3d 662, 77 N.E.3d 915, 2017-Ohio-1335.
Compare3. 911 tapes
The Ohio Supreme Court has held that cities and counties must provide copies of 911 calls in their custody. State ex rel. Cincinnati Enquirer v. Hamilton Cty., 75 Ohio St.3d 374, 662 N.E.2d 334 (1996). See also State ex rel. Cincinnati Enquirer v. Sage, 142 Ohio St. 3d 392, 397, 31 N.E.3d 616, 622, 2015-Ohio-974, ¶ 18. (911 recordings are not subject to the work product exemption because dispatcher was not a law-enforcement official, was not questioning the caller in anticipation of future litigation.).
Compare4. Investigatory records
Most records generated by investigators while investigating a law-enforcement matter—whether enforcing a law with criminal penalties, or civil or administrative sanctions—are not public records until the trial for which they were gathered is over. See much more detail in discussion above for the exemption for "confidential law enforcement investigatory records."
Compare5. Arrest records
Arrest records are public records and are not exempt as confidential law enforcement investigatory records as an arrested suspect is considered to be “charged.” State ex rel. Outlet Communications Inc. v. Lancaster Police Dept., 38 Ohio St. 3d 324, 528 N.E.2d 175 (1988); State ex rel. Moreland v. City of Dayton, 67 Ohio St. 3d 129, 616 N.E.2d 234 (1993).
Compare6. Compilations of criminal histories
Information, data, and statistics gathered or disseminated through Ohio’s law enforcement gateway are not public records except in certain circumstances. Ohio Rev. Code § 109.57(D);
State ex rel. Multimedia, Inc. v. Snowden, 72 Ohio St. 3d 141, 144, 647 N.E.2d 1374, 1378, 1995-Ohio-248 (““rap sheets” generated in the investigation of police applicants are prohibited from being released by state and federal law”)(citations omitted).
Compare7. Victims
A victim’s statement reporting an office to a law enforcement officer is a public record which must be disclosed where the person seeking the statement is not a defendant in a criminal prosecution. Pinkava v. Corrigan, 64 Ohio App.3d 499, 581 N.W.2d 1181 (Ohio App. 8th Dist. 1990)(victim's statement reporting an offense to a police officer is a public record). But see State v. Daniel, 97 Ohio App.3d 548, 647 N.W.2d 174 (Ohio Ct. App. 1994) (victim’s statements that were compiled solely for initiating prosecution of defendant were exempt as trial preparation records).
If the safety of a victim would be endangered then the record is exempt as a confidential law enforcement investigatory record. Ohio Rev. Code §§ 149.43(A)(1)(h), 149.43(A)(2)(d).
Compare8. Confessions
Where a confession is part of a specific investigatory work product it is exempt from disclosure. Ohio Rev. Code §§ 149.43(A)(1)(h), 149.43(A)(2)(c).
Compare9. Confidential informants
The identities of confidential informants are not public record, nor is information that, if released, would tend to identify the informant. If releasing a record would endanger the safety of a confidential informant, the record is exempt as a confidential law enforcement investigatory record. Ohio Rev. Code §§ 149.43(A)(1)(h), 149.43(A)(2)(d).
Compare10. Police techniques
Specific confidential investigatory techniques or procedures are explicitly exempted from disclosure. Ohio Rev. Code §§ 149.43(A)(1)(h), 149.43(A)(2)(c).
Compare11. Mugshots
Mug shots of charged suspects are public records; mug shots of uncharged suspect may be subject to withholding under Ohio Rev. Code § 149.43(A)(2)(a). State ex rel. Williams v. City of Cleveland, No. 61762, 1992 WL 390046, at *2 (Ohio Ct. App. Dec. 24, 1992).
Compare12. Sex offender records
Written notice that is provided to neighbors regarding tier III offenders are public records, as is the electronic database containing information to such offenders. Ohio Rev. Code §§ 2950.081, 2950.11(E), 2950.13(A)(11). A more detailed electronic database that allows law enforcement representatives to electronically search the state registry of such offenders is not a public record. Ohio Rev. Code §§ 2950.11(E), 2950.13(A)(13).
Compare13. Emergency medical services records
Emergency medical services records may be exempt as medical records. Ohio Rev. Code § 149.43(A)(3); see § 149.43(A)(1)(a). However, to be exempt, the record must be maintained or generated in the process of medical treatment. Therefore, a patient care report generated by an emergency medical service squad did not qualify where the squad found the victim dead when it arrived, and thus provided no medical treatment. State ex rel. Ware v. City of Cleveland, 55 Ohio App. 3d 75, 562 N.E.2d 946 (1989).
Compare14. Police video (e.g, body camera footage, dashcam videos)
Body-worn camera recordings are presumptively public unless exempt. Oh. Rev. Code § 149.43. Such restrictions can apply when the footage depict, among other things: the image or identity of a child who is a primary subject of a recording; protected health information or identity of a person in a health care facility who is not the subject of a law enforcement encounter; information that could reveal the alleged victim of a sex offense or similar crime; the identity of a confidential informant when such a disclosure “could reasonably be expected to threaten / endanger the safety or property of that or another person”; personal information of someone not arrested or otherwise cited by an officer; proprietary crime-prevention information; a personal conversation between officers or correctional employees unrelated to their work; a personal conversation between officers or correctional employees and member(s) of the public unrelated to the officer’s official duties; the interior of a residence, unless it is the location of a law enforcement encounter or use of force; and the interior of a business that is not open to the public, unless it is the location of a law enforcement encounter or use of force. Oh. Rev. Code § 149.43(A)(17).
A recording depicting the following are also restricted from disclosure: a death or a deceased person’s body, grievous bodily harm, or an act of severe violence resulting in serious harm, unless caused by an officer or other correctional employee. Oh. Rev. Code § 149.43(A)(17). If such incidents were not caused by an officer or correctional employee, the recording is available only if the subject of the recording or their representative consent and any of the following apply: (1) the recording will not be used in a current or pending legal proceeding or (2) the recording has been used in a criminal proceeding that has been dismissed and will not be used again. Oh. Rev. Code § 149.43(H)(1). Similarly, video recordings depicting a person’s nude body are not subject to disclosure, absent consent and satisfaction of either of the two circumstances outlined at (H)(1). Oh. Rev. Code § 149.43(A)(17).
Finally, body-worn camera recordings depicting the following are not subject to disclosure, absent consent and provided that either (1) the recording will not be used in a current or pending legal proceeding or (2) the recording has been used in a criminal proceeding that has been dismissed and will not be used again: death of an officer in the course of their official duties; grievous bodily harm to an officer in the course of their official duties; an act of severe violence resulting in serious harm to an officer in the course of their official duties. Oh. Rev. Code § 149.43(A)(17), (H)(1).
To challenge withholding of body-worn camera recordings, “any person may file a mandamus action … or a complaint with the clerk of the court of claims,” seeking a court order for release of the recording(s). Oh. Rev. Code § 149.43(H)(2). The court will weigh the public interest in release of the recordings against the privacy and other interests at stake. Id.
Compare15. Biometric data (e.g., fingerprints)
Compare16. Arrest/search warrants and supporting affidavits
Compare17. Physical evidence
CompareP. Prison, parole and probation reports
Records pertaining to probation and parole proceedings or to proceedings related to the imposition of community control sanctions and post-release sanctions are exempt from public disclosure. Ohio Rev. Code § 149.43(A)(1)(b).
CompareQ. Professional licensing records
Test materials and other evaluation tools related to licensure as a nursing home administrator are not public records. Ohio Rev. Code § 149.43(A)(1)(u).
Certain records related to investigations of applicants for insurance producers’ license are confidential. Ohio Rev. Code § 3905.24.
Criminal background checks prepared for purposes of licensing certain gaming/casino employees. Ohio Rev. Code § 3772.07.
Contents of a Certified Grievance Committee investigator’s file investigating an attorney for allegations of ethical misconduct are confidential under Gov. Bar R. V, Section 5(H), and attorney work product, and are not public records. State ex rel. Parisi v. Dayton Bar Ass'n Certified Grievance Comm., 103 N.E.3d 179, 2017-Ohio-9394, ¶ 94.
CompareR. Public utility records
All proceedings of the public utilities commission and all documents and records in its possession are public records. Ohio Rev. Code § 4901.12.
CompareS. Real estate appraisals, negotiations
Compare1. Appraisals
All County records relating to the assessment of real property are public records. Ohio Rev. Code § 5715.07. Records pertaining to appraisals used to determine property tax assessments are likely public records. See State ex re. Bothwell v. Montgomery County Sanitary Engineering Dept., 1999 WL 959179 (Ohio Ct. App. 1999). See also 1985 Ohio Atty.Gen.Ops. No. 85-087 (determining that the county was obligated to release information contained on appraisal cards).
Compare2. Negotiations
There is no statutory or case law addressing this issue.
Compare3. Transactions
Real estate transaction records, such as licensing agreements and contracts, are public records. State ex rel. Railroad Ventures, Inc. v. Columbiana Cnty. Port Auth., 2004 WL 187415 (Ohio Ct. App. 2004).
Compare4. Deeds, liens, foreclosures, title history
Recorded instruments such as deeds and mortgages are public records. State ex rel. Data Trace Info. Servs., L.L.C. v. Cuyahoga Cty. Fiscal Officer, 131 Ohio St. 3d 255, 263, 963 N.E.2d 1288, 1297, 2012-Ohio-753, ¶ 41(written instruments electronically filed with County recorder are subject to Public Records Act); See also Lorain County Title Co. v. Essex, 53 Ohio App.2d 274, 373 N.E.2d 1261 (Ohio Ct. App. 1976) (holding that microfilm copies of such records were public records because “the information contained on [the] film is from public records.”).
Compare5. Zoning records
Zoning records are public records. See Barna v. Paris, 2000 WL 1459867 (Ohio Ct. App. 2000) (noting that zoning records are public records that were equally available to all parties in the case).
CompareT. School and university records
Compare1. Athletic records
There is no statutory or case law addressing this issue.
Compare2. Trustee records
There is no statutory or case law addressing this issue.
Compare3. Student records
The Family Educational Rights and Privacy Act (FERPA) prohibits schools from releasing student records. U.S. v. Miami University, 91 F.Supp.2d 1132 (S.D. Ohio 2000). But see State ex rel. The Miami Student v. Miami Univ., 79 Ohio St.3d 168, 680 N.W.2d 956 (1997) (holding that disciplinary records were not academic in nature and therefore not exempt under FERPA).
Ohio’s Student Privacy Act, Ohio Rev. Code § 3319.321, was enacted to bring Ohio law into compliance with FERPA, and it incorporates by reference FERPA’s definition of directory information. See R.C. 3319.321(B)(2)(a); State ex rel. Sch. Choice Ohio, Inc. v. Cincinnati Pub. Sch. Dist., 147 Ohio St. 3d 256, 264, 63 N.E.3d 1183, 1192, 2016-Ohio-5026, ¶ 32 (non-profit corporation was entitled to student-directory information from public school district).
Federal law defines student directory information: "Student's name, address, telephone listing, date and place of birth, major field of study, participation in officially-recognized activities and sports, weight and height of athletic teams, dates of attendance, degrees and awards received, and the most recent previous educational agency or institution attended by the student." 20 U.S.C. 1232g(a)(5)(A) (Family Educational Right to Privacy Act–FERPA).
Compare4. School foundation/fundraising/donor records
Compare5. Research material or publications
Compare6. Other
There is no statutory or case law addressing this issue.
CompareU. State guard records
There is no statutory or case law addressing this issue.
CompareV. Tax records
Except pursuant to judicial order, tax returns are confidential. Ohio Rev. Code §§ 718.13 (municipal), 5703.21 (audits), 5711.10 (submission of verified federal income tax return in lieu of listing income yielding investments), 5711.101 (financial statement or balance sheet of a business required to be filed), 5731.90 (estate taxes).
125.20(A)(2) creates and requires disclosure of tax credits granted by the State. State ex rel. Allright Parking Co. v. City of Cleveland, 63 Ohio St. 3d 772, 591 N.E.2d 708 (1992)(although application for approval of tax-abatement project was a public record, materials related to and submitted with the applications should have been reviewed in camera to determine if they were subject to an exemption).
Tax maps are public records. See State ex rel. Gambill v. Opperman, 135 Ohio St.3d 298, 301-302, 986 N.E.2d 931, 935, 2013-Ohio-761, ¶ 16 (requester permitted to “input[] search terms” into County’s electronic database containing tax maps and aerial photographs and print requested records). Records pertaining to appraisals used to determine property tax assessments are likely public records. See State ex re. Bothwell v. Montgomery County Sanitary Engineering Dept., 1999 WL 959179 (Ohio Ct. App. 1999).
The Ohio Supreme Court has applied a “judicial mental process” privilege to bar access to records of the adjudicatory deliberations of a local board of tax appeals. TBC Westlake Inc. v. Hamilton County Bd. of Revisions, 81 Ohio St. 3d 58, 689 N.E.2d 32 (1998).
CompareW. Vital Statistics
Compare1. Birth certificates
Ordinarily birth certificates are public records. However, where a birth record is changed and a new birth record issued, the original birth record is no longer available for inspection except by court order. Following adoption, a new birth record is issued and the original birth record ceases to be a public record. Ohio Rev. Code §§ 3705.09, 3705.12.
Compare2. Marriage and divorce
While records pertaining to the issuance of marriage licenses must be made available to the public, the social security numbers of the parties must generally be deleted or removed before inspection. Ohio Rev. Code § 3101.051.
Rules 44 and 45 of the Rules of Superintendence, which the Ohio Supreme Court adopted in 2009, address public access to records filed in domestic relations court, which has jurisdiction to grant divorces. Those rules keep certain personal information, such as credit card numbers and bank account numbers, outside the broad scope of court records that are presumptively open to the public. Those rules do not have the same force of law that a statute has, but courts generally follow them. Buckmaster v. Buckmaster, 2014-Ohio-793 (4th Dist.-Highland).
The Rules of Superintendence presumptively close the following kinds of records filed in divorce cases:
(i) health care documents, including but not limited to physical health, psychological health, psychiatric health, mental health, and counseling documents;
(ii) drug and alcohol use assessments and pre-disposition treatment facility reports;
(iii) guardian ad litem reports, including collateral source documents attached to or filed with the reports;
(iv) home investigation reports, including collateral source documents attached to or filed with the reports;
(v) child custody evaluations and reports, including collateral source documents attached to or filed with the reports;
(vi) domestic violence risk assessments;
(vii) supervised parenting time or companionship or visitation records and reports, including exchange records and reports;
(viii) financial disclosure statements regarding property, debt, taxes, income, and expenses, including collateral source documents attached to or filed with records and statements;
(ix) asset appraisals and evaluations.
Compare3. Death certificates
Records of a Coroner are public records, subject to exceptions for preliminary records, photographs, law enforcement investigatory records, suicide notes, and medical and psychiatric records provided to the Coroner. Ohio Rev. Code § 313.10. Under § 313.10, special status to the Coroner’s records is afforded to the next of kin (R.C. 313.10(C)), and to journalists (R.C. 313.10(D). See State ex rel. Clay v. Cuyahoga Cty. Med. Examiner's Office, 152 Ohio St. 3d 163, 171, 94 N.E.3d 498, 506, 2017-Ohio-8714, ¶ 38 (father who murdered child nonetheless was “next of kin” entitled to full coroner’s report).
Compare4. Infectious disease and health epidemics
The Ohio Revised Code sets forth a specialized process for obtaining records regarding HIV status from the Department of Health. Ohio Rev. Code § 3701.243. Information obtained by the Department of Health’s partner notification system in conjunction with AIDS task forces are specifically excluded from public records; disclosure of these records requires an application using the process set forth in § 3701.243. Ohio Rev. Code § 3701.241(A)(7).
CompareIV. Procedure for obtaining records
CompareA. How to start
Compare1. Who receives a request?
Ohio law does not require that requesters direct their requests to any particular public agency, department, or employee. It is enough that the request go to the public office or official with custody of the records.
A request for court records is properly submitted to either the clerk or presiding judge since either one is a "person responsible" for the records. State ex rel. Highlander v. Rudduck, 103 Ohio St. 3d 370, 816 N.E.2d 213 (2004).
Compare2. Does the law cover oral requests?
Yes. The statute contains no authority for public offices to demand written requests as a condition for public access. See State ex rel. Zauderer v. Joseph, 62 Ohio App. 3d 752, 577 N.E.2d 444 (1989). However, statutory damages for noncompliance are only available to requests sent by certified mail or hand-delivered requests. Ohio Rev. Code § 149.43(C)(2).
Whether a requester must make arrangements in advance to inspect or copy records depends on the public office. Some public offices are accustomed to public access to records as a matter of daily routine, such as a county recorder's office. Many public offices are not set up for routine public access to records, and may need advance notice that the requester is coming. Other than to require public offices to allow "prompt" inspection, and to provide copies within a "reasonable period of time," the statute does not address whether a requester must provide advance notice of an inspection or copying.
A requester can memorialize a refusal of an oral request in any manner, including sending a letter to the public office confirming the oral request and the denial. The statute does not impose any limitations.
The statute does not require anything to be in writing. As a practical matter, putting a request in writing, and putting follow-up requests in writing, helps ensure that the public office will not have a feigned or real misunderstanding of which records are being requested.
Compare3. Required contents of a written request
Compare4. Can the requester choose a format for receiving records?
Compare5. Availability of expedited processing
CompareB. How long to wait
Compare1. Statutory, regulatory or court-set time limits for agency response
The statute provides different generalized time frames, depending on whether the requester seeks inspection or copying. The statute requires public offices to "promptly" prepare public records for public inspection and that inspection be permitted "at all reasonable times during regular business hours." The statute requires public offices to make copies of public records available "within a reasonable period of time." Ohio Rev. Code § 149.43(B)(1).
For a public office operating 24 hours a day, "regular business hours" does not require the public records be made available at all times. The office may establish periods of time for public inspection and copying of records that approximate ordinary administrative business hours of ordinary public agencies. State ex rel. Warren Newspapers v. Hutson, 70 Ohio St. 3d 619, 640 N.E.2d 174 (1994).
The court found that a city's delays of up to 24 days to prepare and provide access to requested accident reports were not "prompt" and, thus, justified a writ of mandamus. The court granted the writ of mandamus to compel the city to prepare and provide access to motor vehicle accident reports within eight days after accidents occur, the time frame sought by the requester. State ex rel. Wadd v. City of Cleveland, 81 Ohio St. 3d 50, 689 N.E.2d 25, 1998-Ohio-444; see also State ex rel. Consumer News Servs. Inc. v. Worthington City Bd. of Educ., 97 Ohio St. 3d 58, 776 N.E.2d 82 (2002) (finding that a six-day delay was not prompt, defining "prompt" as without delay and with reasonable speed), State ex rel. Office of Montgomery County Public Defender v. Siroki, 108 Ohio St. 3d 207, 842 N.E.2d 508 (2006) (holding that if an office could produce records in two days, then it should do so).
Compare2. Informal telephone inquiry as to status
The statute does not address making inquiries, or even requests, by telephone. In practice, telephone inquiries are a good idea. See State ex rel. Consumer News Servs. Inc. v. Worthington City Bd. of Educ., 97 Ohio St. 3d 58, 776 N.E.2d 82 (2002) (considering voice mail messages left by requester in evaluation of government's response). Even requests by telephone will work with some public offices.
Compare3. Is delay recognized as a denial for appeal purposes?
Ordinarily, a demand and refusal must precede suit for the requester to be "aggrieved." Only those who are "aggrieved" by a public office's noncompliance with its duties have standing to sue. See Ohio Rev. Code § 149.43(C); State ex rel. Collins v. Corbin, 73 Ohio App. 3d 410, 597 N.E.2d 544 (1992).
But delay in receiving a response from a public office is, itself, sufficient to have standing to sue. State ex rel. DiFranco v. South Euclid, 138 Ohio St.3d 367, 7 N.E.3d 1136, 2014-Ohio-538.
Compare4. Any other recourse to encourage a response
Other practical recourse beyond complaining, but short of suit, is to seek help from the official's supervisor or to seek help from an elected official. Elected officials are often more responsive than appointed officials.
CompareC. Administrative appeal
Ohio does not have an administrative appeal procedure. Aggrieved requesters may go directly to court, but Ohio does have a special court procedure in the Court of Claims that is optional for someone suing to gain access to public records. That procedure is explained below:
Court of Claims
1. Who may file a complaint?
Any person who has been “allegedly aggrieved by a denial of access to public records” after filing a public records request under Ohio Rev. Code § 149.43(B). Ohio Rev. Code § 2743.75(C)(1).
A person who has been denied records may file a complaint with the court of claims under Ohio Rev. Code § 2743.75(C)(1) or a mandamus action in a common pleas court, court of appeals, or Ohio Supreme Court under Ohio Rev. Code § 149.43 (C)(1)(b). A requester may not file both actions simultaneously for the same request. Ohio Rev. Code § 2743.75(C)(1).
If the court of claims determines that the complaint presents a “case of first impression that involves and issue of substantial public interest, the court shall dismiss the case,” and a person may then file a mandamus action under Ohio Rev Code § 149.43(C). Ohio Rev. Code § 2743.75(C)(2).
2. Expedited Process.
The court of claims process for resolving disputes about denials of record requests is designed to be an “expeditious and economical procedure.” Ohio Rev. Code § 2743.75(A). The process encourages settlement by requiring mediation in most cases and a special master makes a recommendation to the court applying the law to the facts of the case to attempt to reduce the burden on the parties. Ohio Rev. Code § 2743.75.
If the court determines that the complaint constitutes a “case of first impression that involves and issue of substantial public interest, the court shall dismiss the case,” and a person may then file a mandamus action under Ohio Rev Code § 149.43(C). Ohio Rev. Code § 2743.75(C)(2).
3. What Court?
If the requester chooses to sue in a common pleas court instead of the court of claims, the only common pleas court with jurisdiction is the court of common pleas of the county where the public office with the records is located. Ohio Rev. Code § 149.43(C)(1)(b).
Or the requester may file the complaint in the court of appeals with jurisdiction over the location where the public office did not comply with the request. Ohio Rev. Code § 149.43(C)(1)(b)
Or the requester may file the complaint originally in the Ohio Supreme Court. Ohio Rev. Code § 149.43(C)(1)(b).
4. Complaint.
a. Filing Fee.
The complaint must be filed with a filing fee of twenty-five dollars ($25) payable to the clerk of the court in which the complaint is filed. Ohio Rev. Code § 2743.75(D)(1).
b. Contents of the Complaint.
The clerk of the court of claims will designate a form to file a complaint under Ohio Rev. Code § 2743.75 (D)(1).
The records request, any written responses related to the request, and any other communications relating to the request must be attached to the complaint. Ohio Rev. Code § 2743.75(D)(1).
c. Service of the Complaint.
The clerk will serve the public office with the complaint. Ohio Rev. Code § 2743.75(D)(1).
5. Mediation.
The special master will immediately refer a case to mediation services unless the special master determines that “in the interest of justice considering the circumstances of the case and the parties, the special master determines the case should not be referred to mediation.” Ohio Rev. Code § 2743.75 (E)(1).
Mediation may be conducted by telephone or other electronic means. Ohio Rev. Code (E)(1).
If mediation leads to an agreement between the parties, the complaint is dismissed. Ohio Rev. Code (E)(1).
If the parties cannot come to an agreement during mediation, the public office must file a response to the complaint or a motion to dismiss. Ohio Rev. Code § 2743.75 (E)(2).
6. Public Office Response or Motion to dismiss.
The public office or person responsible for public records must file a response and a motion to dismiss, if applicable, within ten (10) days of the termination of mediation. Ohio Rev. Code § 2743.75(E)(2).
No other motions or pleadings will be taken at this point in the process unless “the special master directs in writing that a further motion or pleading be filed.” Ohio Rev. Code § 2743.75 (E)(2).
7. Special Master’s Recommendation.
a. Prior to the Special Masters Recommendation.
Prior to submitting the special master’s recommendation, the parties may attach supporting affidavits to their pleadings, the special master may require additional information or affidavits from the parties, but the special master shall not permit discovery. Ohio Rev. Code § 2743.75(E)(3).
b. The Special Master’s Recommendation.
The special master must submit his recommendation within seven business days after receiving the public office’s response. Ohio Rev. Code § 2743.75(F)(1).
The special master’s recommendation is based on “the ordinary application of statutory law and case law as they existed at the time of the filing of the complaint.” Ohio Rev. Code § 2743.75(F)(2).
Any objections to the special master’s recommendation must be made within seven (7) business days after the recommendation is filed. Ohio Rev. Code § 2743.75(F)(2).
“If neither party timely objects, the court of claims shall promptly issue a final order adopting the report and recommendation, unless it determines that there is an error of law or other defect evident on the face of the report or recommendation.” Ohio Rev. Code § 2743.75(F)(2).
c. Objections and Responses to the Special Master’s Recommendation.
Any objections to the special master’s recommendation must be made within seven (7) business days after the recommendation is filed. Ohio Rev. Code § 2743.75(F)(2).
Any objection s must be specific and “state with particularity all grounds for the objection.” Ohio Rev. Code § 2743.75(F)(2).
The opposing party may file a response to the objection within seven (7) days of receipt of the objection. Ohio Rev. Code § 2743.75(F)(2).
The court shall issue a final order that “adopts, modifies, or rejects” the recommendation within seven (7) business days of a response to an objection. Ohio Rev. Code § 2743.75(F)(2).
8. Final Order.
“If neither party timely objects, the court of claims shall promptly issue a final order adopting the report and recommendation, unless it determines that there is an error of law or other defect evident on the face of the report or recommendation.” Ohio Rev. Code § 2743.75(F)(2).
The court shall issue a final order that “adopts, modifies, or rejects” the recommendation within seven (7) business days of a response to an objection. Ohio Rev. Code § 2743.75(F)(2).
If the court determines that the public office denied the person access to records in violation of Ohio Rev. Code § 149.43 and no appeal has been filed, then the public office shall give the person access to or copies of the requested records, pay the person’s $25 filing fee, and pay any other costs incurred in the action but, “shall not be entitled to recover attorney’s fees.” Ohio Rev. Code § 2743.75(F)(3).
9. Appealing a Final Order.
A party must timely object to the special master’s recommendation to reserve the right to appeal unless the court materially alters the recommendation. Ohio Rev. Code § 2743.75(G)(1).
Appeals shall be given precedence over other pending matters to ensure a prompt decision. Ohio Rev. Code § 2743.75(G)(1).
If the appellate court finds that a public office denied a person access to public records in violation of Ohio Rev. Code § 149.43(B) and obviously filed the appeal for no reasonable cause or to unduly harass the person, the court may award attorney’s fees to the person. Ohio Rev. Code § 2743.75(G)(2).
10. Fees
The complaint must be filed with a filing fee of $25 payable to the clerk of the court in which the complaint is filed. Ohio Rev. Code § 2743.75(D)(1).
If the court determines that the public office denied the person access to records in violation of Ohio Rev. Code § 149.43 and no appeal has been filed, then the public office shall give the person access to or copies of the requested records, pay the person’s $25 filing fee, and pay any other costs incurred in the action but, “shall not be entitled to recover attorney’s fees.” Ohio Rev. Code § 2743.75(F)(3).
If, on appeal, the court finds that a public office denied a person access to public records in violation of Ohio Rev. Code § 149.43(B) and obviously filed the appeal for no reasonable cause or to unduly harass the person, the court may award attorney’s fees to the person. Ohio Rev. Code § 2743.75(G)(2).
Mandamus action.
A person who has been denied records may file a complaint with the court of claims under Ohio Rev. Code § 2743.75(C)(1) or a mandamus action under Ohio Rev. Code § 149.43 (C)(1)(b) but may not file both actions simultaneously for the same request. Ohio Rev. Code § 2743.75(C)(1).
Compare
1. Time limit to file an appeal
Compare2. To whom is an appeal directed?
Compare3. Fee issues
Compare4. Contents of appeal
Compare5. Waiting for a response
Compare6. Subsequent remedies
CompareD. Additional dispute resolution procedures
Compare1. Attorney General
Compare2. Ombudsperson
Compare3. Other
CompareE. Court action
Compare1. Who may sue?
Compare2. Priority
Compare3. Pro se
Compare4. Issues the court will address
Comparea. Denial
Courts primarily will redress denial of requests.
Compareb. Fees for records
Copies of records are available at “actual cost,” which “does not include labor costs for employee time to respond to the request and make the copies.” State ex rel. Data Trace Info. Servs., L.L.C. v. Cuyahoga Cty. Fiscal Officer, 131 Ohio St. 3d 255, 264, 963 N.E.2d 1288, 1297, 2012-Ohio-753, ¶ 43.
Agencies may not charge fees to requesters seeking to inspect, rather than copy, records, and courts will address the charging of fees unauthorized by statute. State ex rel. Warren Newspapers Inc. v. Hutson, 70 Ohio St. 3d 619, 640 N.E.2d 174 (1994).
Comparec. Delays
Courts will address delay, and may award statutory damages because of unreasonable delays. State ex rel. DiFranco v. City of So. Euclid, 144 Ohio St.3d 571, 45 N.E.3d 987, 2015-Ohio-4914.
But the delays should be substantial in comparison with the apparent logistical difficulty of responding to the request. State ex rel. Warren Newspapers Inc. v. Hutson, 70 Ohio St. 3d 619, 640 N.E.2d 174 (1994); see also State ex rel. Wadd v. City of Cleveland, 81 Ohio St. 3d 50, 689 N.E.2d 25, 1998-Ohio-444; see also State ex rel. Consumer News Servs. Inc. v. Worthington City Bd. of Educ., 97 Ohio St. 3d 58, 776 N.E.2d 82 (2002) (finding that a six-day delay was not prompt, defining "prompt" as without delay and with reasonable speed), State ex rel. Office of Montgomery County Public Defender v. Siroki, 108 Ohio St. 3d 207, 842 N.E.2d 508 (2006) (holding that if an office could produce records in two days, then it should do so).
Delay alone confers standing to sue. State ex rel. DiFranco v. City of So. Euclid, 144 Ohio St.3d 571, 45 N.E.3d 987, 2015-Ohio-4914.
Compared. Patterns for future access (declaratory judgment)
Suits seeking access to public records may be commenced in the first instance in any appellate level court or in the trial level court. An appellate level court will write opinions. Those opinions have the effect of declaratory judgments making law that guides public offices and requesters in future situations.
However, the Ohio Supreme Court has refused to issue a writ of mandamus to require an agency to prospectively make certain records available. State ex rel. Toledo Blade Co. v. Seneca Cty. Bd. of Comm’rs, 120 Ohio St. 3d 372, 384, 899 N.E.2d 961, 974, 2008-Ohio-6253, ¶ 47 (denying writ of mandamus to compel the board, in the future, to promptly make public records available for inspection upon request).
Compare5. Pleading format
The party bringing suit must seek a writ of mandamus. Doing so requires suing in the name of the state of Ohio, i.e., "State of Ohio, ex rel. John Doe," or "State ex rel. John Doe." Ohio Rev. Code § 2731.04.
The party bringing suit is called the "relator," and the parties being sued are called "respondents."
Also, in addition to pleading the basic circumstances demonstrating that the party suing is "aggrieved" by the public office's failure to comply with the public records statute, the party bringing suit should plead the following elements: (1) the party made a demand upon the public office for public records, which the public office has actually or effectively denied, (2) the party has a clear legal right to the relief sought from the public office and the public office has a clear legal duty to provide the relief, (3) Ohio Rev. Code § 149.43(C) authorizes the court to issue a writ of mandamus, and (4) there is no adequate alternative remedy in the ordinary course of the law. But see State ex rel. Lucas County Board of Commissioners v. Ohio Environmental Protection Agency, 88 Ohio St. 3d 166, 724 N.E.2d 411 (2000) ("Mandamus is the proper remedy to compel compliance with the Public Records Act, and persons requesting records under R.C. 149.43(C) need not establish the lack of an alternative, adequate legal remedy in order to be entitled to the writ"). The complaint should describe the records sought specifically.
Compare6. Time limit for filing suit
Denial of Records: The statute of limitations for mandamus claims to compel the production of public records as required by R.C. 149.43(C) is six years from when cause of action accrues—the date when the requester first became aggrieved by the public office's noncompliance with its duties under the Public Records Act. This limitations period arises under Ohio Rev. Code § 2305.07, which imposes a six-year limitations period for a "liability created by statute other than a forfeiture or penalty." Ohioans for Concealed Carry, Inc. v. City of Cleveland, 90 N.E.3d 80, 2017-Ohio-1560 ¶ 48 (Ohio App. 8th Dist.) (149.43(C) actions for production of records are governed by six-year statute of limitations in R.C. § 2305.07, as they represent damages, not a penalty).
Destruction/Removal of Records: 149.351(B)(2) provides a statutory penalty—a “forfeiture”—for wrongful destruction of public records, and are subject to the one-year statute of limitations in R.C. § 2305.11. Ohioans for Concealed Carry, 2017-Ohio-1560 at ¶ 46.
In some circumstances, excessive delay in filing may be subject to the equitable doctrine of laches, and the court will not grant the requested writ of mandamus.
Compare7. What court?
A person aggrieved by the public office's failure to comply with the public records statute may initiate suit in either the common pleas court (trial level), court of appeals (intermediate level appellate court), or the Ohio Supreme Court (highest level appellate court). Ohio Rev. Code § 149.43(C).
Or the person aggrieved can employ the court of claims procedure described above.
Compare8. Burden of proof
Compare9. Judicial remedies available
Compare10. Litigation expenses
Comparea. Attorney fees
The court has the discretion to award attorneys' fees where the person bringing suit obtains a writ of mandamus. Ohio Rev. Code § 149.43(C).
Compareb. Court and litigation costs
Ohio Rev. Code § 149.43(C)(2)(a) states that if a court orders a public office to comply with the Public Records Act, or if it finds that an agency has acted in bad faith regarding a request, then the court shall order court costs to the requester. Ohio Rev. Code § 149.43(C)(2)(a).
Compare11. Fines
Compare12. Other penalties
Compare13. Settlement, pros and cons
CompareF. Appealing initial court decisions
Compare1. Appeal routes
Common pleas court judgments may be appealed to the court of appeals for the judicial district in which the common pleas court sits.
Court of appeals judgments may be appealed to the Ohio Supreme Court.
There is no state appellate court level beyond the Ohio Supreme Court.
Court of Claims judgments are appealed to the Court of Appeals for Franklin County.
Compare2. Time limits for filing appeals
To appeal to the Court of Appeals, the time limit is 30 days from the date of entry of the contested judgment. Ohio R. App. P. 4(A). To appeal to the Supreme Court, the time limit is 45 days. Ohio Sup Ct Rule 2.2(A)(1). If the appeal is due to a split among the Ohio Courts of Appeal then the time limit is 30 days. Ohio Sup Ct Rule 2.2(A)(1), 4.1.
Compare3. Contact of interested amici
Amici briefs are probably most effective in the appellate level courts, not in the common pleas court. The Reporters Committee for Freedom of the Press often files amicus briefs in cases involving significant media law issues before a state's highest court.
CompareG. Addressing government suits against disclosure
CompareOpen Meetings
CompareI. Statute - basic application
CompareA. Who may attend?
Any person may attend. Ohio Rev. Code § 121.22(C).
CompareB. What governments are subject to the law?
Compare1. State
State and local governments. Ohio Rev. Code § 121.22(B)(1) (public bodies subject to the law include "[a]ny board, commission, committee, council, or similar decision-making body of a state agency . . . and any . . . board, commission, committee, council, agency, authority, or similar decision-making body of any county, township, municipal corporation, school district, or other political subdivision").
However, where a local government has a home rule charter that does not provide for as much public access as the sunshine law, some lower appellate courts hold that the charter prevails over the sunshine law. Hills & Dales Inc. v. City of Wooster, 4 Ohio App. 3d 240, 448 N.E.2d 163 (Wayne 1982); City Comm'n of Piqua v. Piqua Daily Call, 64 Ohio App. 2d 222, 412 N.E.2d 1331 (Miami 1979).
The Ohio Supreme Court has not decided that issue, but has applied the sunshine law to local governments with home rule charters where there was no direct conflict between the charter and the sunshine law, such as where the charter provides for greater public access than the sunshine law. State ex rel. Cincinnati Post v. City of Cincinnati, 76 Ohio St. 3d 540, 668 N.E.2d 903 (1996); State ex rel. Inskeep v. Staten, 74 Ohio St. 3d 676, 660 N.E.2d 1207 (1996); State ex rel. Fenley v. Kyger, 72 Ohio St. 3d 164, 648 N.E.2d 493 (1995); State ex rel. Plain Dealer Publishing Co. v. Barnes, 38 Ohio St. 3d 165, 527 N.E.2d 807 (1988).
Compare2. County
Counties are subject to the law. State ex rel. Fairfield Leader v. Ricketts, 56 Ohio St. 3d 97, 564 N.E.2d 486 (1990) (board of county commissioners); Ohio Rev. Code § 121.22(B)(1).
However, where a local government has a home rule charter that does not provide for as much public access as the sunshine law, some lower appellate courts hold that the charter governs over the sunshine law. Hills & Dales Inc. v. City of Wooster, 4 Ohio App. 3d 240, 448 N.E.2d 163 (Ohio App. 9th Dist. 1982); City Comm'n of Piqua v. Piqua Daily Call, 64 Ohio App. 2d 222, 412 N.E.2d 1331 (Ohio App. 2d Dist. 1979). The Ohio Supreme Court has not decided that issue, but has applied the sunshine law to local governments with home rule charters where there was no direct conflict between the charter and the sunshine law, such as where the charter provides for greater public access than the sunshine law. State ex rel. Cincinnati Post v. City of Cincinnati, 76 Ohio St. 3d 540, 668 N.E.2d 903 (1996); State ex rel. Inskeep v. Staten, 74 Ohio St. 3d 676, 660 N.E.2d 1207 (1996); State ex rel. Fenley v. Kyger, 72 Ohio St. 3d 164, 648 N.E.2d 493 (1995); State ex rel. Plain Dealer Publishing Co. v. Barnes, 38 Ohio St. 3d 165, 527 N.E.2d 807 (1988).
Compare3. Local or municipal
Local and municipal governments are subject to the law. State ex rel. Fairfield Leader v. Ricketts, 56 Ohio St. 3d 97, 564 N.E.2d 486 (1990) (township trustees); State ex rel. Cincinnati Post v. City of Cincinnati, 76 Ohio St. 3d 540, 668 N.E.2d 903 (1996) (city council where municipal charter adopted state law which did not conflict with charter); Ohio Rev. Code § 121.22(B)(1).
However, where a local government has a home rule charter that does not provide for as much public access as the sunshine law, some lower appellate courts hold that the charter governs over the sunshine law. Hills & Dales Inc. v. City of Wooster, 4 Ohio App. 3d 240, 448 N.E.2d 163 (Ohio App. 9th Dist. 1982); City Comm'n of Piqua v. Piqua Daily Call, 64 Ohio App. 2d 222, 412 N.E.2d 1331 (Ohio App. 2d Dist. 1979). The Ohio Supreme Court has not decided that issue, but has applied the sunshine law to local governments with home rule charters where there was no direct conflict between the charter and the sunshine law, such as where the charter provides for greater public access than the sunshine law. State ex rel. Cincinnati Post v. City of Cincinnati, 76 Ohio St. 3d 540, 668 N.E.2d 903 (1996); State ex rel. Inskeep v. Staten, 74 Ohio St. 3d 676, 660 N.E.2d 1207 (1996); State ex rel. Fenley v. Kyger, 72 Ohio St. 3d 164, 648 N.E.2d 493 (1995); State ex rel. Plain Dealer Publishing Co. v. Barnes, 38 Ohio St. 3d 165, 527 N.E.2d 807 (1988).
CompareC. What bodies are covered by the law?
(This section is blank. See the subpoints below.)
Compare1. Executive branch agencies
(This section is blank. See the subpoints below.)
Comparea. What officials are covered?
Only a "public body" needs open meetings in accordance with the law. Public bodies of the executive branch of government are public bodies. Insofar as the law applies to the executive branch of government, a "public body" is:
- "Any board, commission, committee, council, or similar decision-making body of a state agency, institution, or authority." Ohio Rev. Code § 121.22(B)(1)(a).
- Any "board, commission, committee, council, agency, authority, or similar decision-making body of any county, township, municipal corporation, school district, or other political subdivision of local public institution." Ohio Rev. Code § 121.22(B)(1)(a).
- "Any committee or subcommittee" of any board, commission, committee, council, or similar decision-making body of a state agency, institution, or authority. Ohio Rev. Code § 121.22(B)(1)(b).
- "Any committee or subcommittee" of any board, commission, committee, council, agency, authority, or similar decision-making body of any county, township, municipal corporation, school district,or other political subdivision of local public institution." Ohio Rev. Code § 121.22(B)(1)(b).
A single public official does not qualify as a "public body." Beacon Journal Publishing Co. v. City of Akron, 3 Ohio St. 2d 191, 209 N.E.2d 399 (1965); Smith v. City of Cleveland, 94 Ohio App. 3d 780, 641 N.E.2d 828 (1994).
Compareb. Are certain executive functions covered?
No functions peculiar to the executive branch are excluded or included.
Comparec. Are only certain agencies subject to the act?
Executive branch state agencies exempt from sunshine law requirements are:
- adult parole authority when its hearings are conducted at a correctional institution for the sole purpose of interviewing inmates to determine parole or pardon, Ohio Rev. Code § 121.22(D)(3);
- the organized crime investigations commission, Ohio Rev. Code § 121.22(D)(4);
- the state medical board, board of nursing, board of pharmacy, and chiropractic board, when determining whether to suspend a certificate without a prior hearing, Ohio Rev. Code § 121.22(D)(6),(7),(8),(9);
- the executive committee of the emergency response commission when determining whether to issue an enforcement order or request enforcement litigation, Ohio Rev. Code § 121.22(D)(10);
- the following state agencies when meeting to consider granting financial assistance for businesses and when all members of the board vote unanimously to close the meeting during consideration of financial and business information confidentially received by the board from the applicant for assistance:
- state controlling board;
- state development financing advisory council;
- state industrial technology and enterprise advisory council;
- state tax credit authority;
- state minority development financing advisory board.
Ohio Rev. Code § 121.22(E).
Compare2. Legislative bodies
The state legislature is not subject to the statute. Ohio Rev. Code § 111.15(A)(2). The state legislature is, however, subject to a state constitutional provision requiring that the "proceedings of both Houses shall be public, except in cases which, in the opinion of two-thirds of those present, require secrecy." Ohio Const. Art. II, § 13.
Also, a separate statute requires prearranged discussions of public business of state legislative committees to be open to the public. The statute does not open the meetings of legislative caucuses, which are all members of either house of the general assembly who are members of the same political party. Ohio Rev. Code § 101.15.
The statute applies to legislative bodies of local governments, specifically "any legislative authority . . . of any county, township, municipal corporation, school district, or other political subdivision or local public institution," and any committee or subcommittee of any local legislative authority. Ohio Rev. Code § 121.22(B)(1)(a),(b).
Compare3. Courts
The statute does not apply to the state or local court system. Ohio Rev. Code § 111.15(A)(2). Nor does the statute apply to adjudications of disputes in quasi-judicial proceedings, such as a hearing before the Board of Tax Appeals. TBC Westlake Inc. v. Hamilton County Board of Revisions, 81 Ohio St. 3d 58, 689 N.E.2d 32 (1998) (board of tax appeals). However, by statute, some courts function as agencies that administer sanitary districts. When functioning in that capacity, courts are subject to the state open meeting law. Ohio Rev. Code § 121.22(B)(1)(c).
Compare4. Nongovernmental bodies receiving public funds or benefits
The statute does not expressly address nongovernmental bodies receiving public funds. Where a nongovernmental body acts pursuant to authority delegated by a governmental body and acts for a public purpose, the body may be subject to the sunshine statute, regardless of whether it actually received public funds. State ex rel. Toledo Blade Co. v. Economic Opportunity Planning Ass'n of Greater Toledo, 61 Ohio Misc. 2d 631, 582 N.E.2d 59 (1990); see State ex rel. Fostoria Daily Review Co. v. Fostoria Hospital Ass'n, 40 Ohio St. 3d 10, 531 N.E.2d 313 (1988) (open records statute compels nonprofit corporation's board of trustees to open minutes of the board's meetings about managing a municipal hospital leased by the corporation from a city for no rent).
A private, non-profit hospital is not a public institution although it receives public tax funds, where the hospital had complete control of its operations. State ex rel. Hardin Cty. Publ'g Co. v. Hardin Mem'l Hosp., No. 6-02-04, 2002 WL 31323400 (Hardin Oct. 18, 2002) (finding that meetings held by controlling body of hospital were not governed by Sunshine Law).
Compare5. Nongovernmental groups whose members include governmental officials
The statute does not expressly address nongovernmental bodies whose members are government officials. Where a nongovernmental body acts pursuant to authority delegated by a governmental body and acts for a public purpose, the body may be subject to the sunshine statute, especially where its governing body is comprised of some government officials.
A nonprofit corporation created by a political subdivision to acquire, construct, or rehabilitate housing is a public body for purposes of Ohio Rev. Code § 121.22. Its board of trustees must include government officials. Ohio Rev. Code § 176.011.
A nonprofit corporation under the direct control of a political subdivision and whose members and trustees are selected by the political subdivision and which controls a political subdivision's property for recreational events is subject to the open meetings statute. Ohio Rev. Code § 5709.081.
Compare6. Multi-state or regional bodies
A gathering of officials from several political subdivisions is subject to the sunshine law where the majority of the members of several public bodies are together. State ex rel. The Fairfield Leader v. Ricketts, 56 Ohio St. 3d 97, 564 N.E.2d 486 (1990). The statute does not expressly address multistate bodies, nor does case law.
Regional bodies within the state are subject to the statute. Stegall v. Joint Two Dist. Memorial Hosp., 20 Ohio App. 3d 100, 484 N.E.2d 1381 (1985); Ohio Rev. Code § 715.70 (board of directors of joint economic development districts); Ohio Rev. Code § 1710.02 (special improvement districts).
Compare7. Advisory boards and commissions, quasi-governmental entities
The statute does not expressly address advisory boards, but does apply to "any" committee or subcommittee of a decision-making body of a political subdivision, and "any" committee or subcommittee of a decision-making body of a state agency. Ohio Rev. Code § 121.22(B)(1)(b).
The making of recommendations is a form of decision-making, and thus the delegation of investigatory duties to a committee, which makes recommendations, gives the committee sufficient decision-making authority to be a public body. Maser v. City of Canton, 62 Ohio App. 2d 174, 405 N.E.2d 731 (1978); Thomas v. White, 85 Ohio App. 3d 410, 620 N.E.2d 85 (1992); see also Cincinnati Enquirer v. Cincinnati, 145 Ohio App. 3d 335, 762 N.E.2d 1057 (Hamilton 2001) (finding that an architectural review board that advised and made recommendations was a public body).
Compare8. Other bodies to which governmental or public functions are delegated
In general, where a nongovernmental body acts pursuant to authority delegated by a governmental body and acts for a public purpose, the body may be subject to the sunshine statute. State ex rel. Toledo Blade Co. v. Economic Opportunity Planning Ass'n of Greater Toledo, 61 Ohio Misc. 2d 631, 582 N.E.2d 59 (1990); see State ex rel. Fostoria Daily Review Co. v. Fostoria Hospital Ass'n, 40 Ohio St. 3d 10, 531 N.E.2d 313 (1988) (open records statute compels nonprofit corporation's board of trustees to open minutes of the board's meetings about managing a municipal hospital leased by the corporation from a city for no rent).
Where a city council delegates authority to several of its members to carry out an investigation and make recommendations, the committee is subject to Ohio Rev. Code § 121.22. Maser v. City of Canton, 62 Ohio App. 2d 174, 405 N.E.2d 731 (1978).
Compare9. Appointed as well as elected bodies
The statute makes no distinction between appointed and elected bodies; it applies to both.
CompareD. What constitutes a meeting subject to the law
(This section is blank. See the subpoints below.)
Compare1. Number that must be present
The statute defines "meeting" as "any prearranged discussion of the public business of the public body by a majority of its members." Ohio Rev. Code § 121.22(B)(2).
Comparea. Must a minimum number be present to constitute a "meeting"?
A majority of the public body's members must be present in person for a "meeting" to exist. Ohio Rev. Code § 121.22(B)(2).
Compareb. What effect does absence of a quorum have?
The absence of a quorum (majority of the members of a public body) ordinarily means that no right of public access attaches. However, where a public body prearranges back-to-back, repetitive sessions of less than a majority at each session, but with a majority present when all sessions are considered together, the repetitive subquorum sessions are treated as a "meeting" and must be open to the public. State ex rel. Cincinnati Post v. City of Cincinnati, 76 Ohio St. 3d 540, 668 N.E.2d 903 (1996).
Compare2. Nature of business subject to the law
(This section is blank. See the subpoints below.)
Comparea. "Information gathering" and "fact-finding" sessions
All prearranged discussions of public business of a public body by a majority of its members are subject to the statute's requirement of open meetings. Ohio Rev. Code § 121.22(B)(2), (C). The statute does not distinguish between information gathering/fact finding and any other kind of prearranged discussion.
Several courts of appeals have ruled that information gathering/fact finding does not qualify as "discussion," and therefore such prearranged sessions need not be open to the public. E.g., Springfield Local School Dist. Bd. of Edc'n v. Ohio Ass'n of Public School Employees, 106 Ohio App. 3d 855, 667 N.E.2d 458 (1995); Holeski v. Lawrence, 85 Ohio App. 3d 824, 621 N.E.2d 802 (1993); Piekutowski v. S. Cent. Ohio Educ. Serv. Ctr. Governing Bd., 161 Ohio App. 3d 372, 830 N.E.2d 423 (Adams 2005) (commenting that deliberations involve a "decisional analysis," and ultimately concluding that a school board held unlawful deliberations).
The Ohio Supreme Court has not addressed the issue.
Compareb. Deliberation toward decisions
All prearranged discussions of public business of a public body by a majority of its members are subject to the statute's requirement of open meetings. Ohio Rev. Code § 121.22(B)(2), (C). This requirement includes "deliberations," and the statute's preamble states that the statute should be liberally construed "to require public officials . . . to conduct all deliberations upon official business only in open meetings." Ohio Rev. Code § 121.22(A).
Compare3. Electronic meetings
(This section is blank. See the subpoints below.)
Comparea. Conference calls and video/Internet conferencing
The statute requires a public body's members to be physically present to vote to be considered present, and for the purpose of determining the presence of a quorum. Therefore, a prearranged conference call among a majority of a public body's members would not be effective for conducting voting or conducting official business. The apparent intent of the statute is to prohibit such prearranged conference calls from occurring outside public view or hearing. Ohio Rev. Code § 121.22(C).
Also, seriatim, repetitive telephone calls prearranged among a majority of a public body's members probably would not get around the openness mandate of the statute. See State ex rel. Cincinnati Post v. City of Cincinnati Post v. City of Cincinnati, 76 Ohio St. 3d 540, 668 N.E.2d 903 (1996) (prearranged seriatim, repetitive face-to-face meetings of less than a majority of a city council's members had to be open as a "meeting" where a majority of council attended when the sessions were considered together).
Compareb. E-mail
The statute requires a public body's members to be physically present to vote to be considered present, and for the purpose of determining the presence of a quorum. Therefore, prearranged e-mail discussions among a majority of a public body's members would not be effective for conducting voting or conducting official business. The apparent intent of the statute is to prohibit such prearranged discussions from occurring outside public view or hearing. Ohio Rev. Code § 121.22(C).
The Supreme Court of Ohio has stated, “R.C. 121.22 prohibits any private prearranged discussion of public business by a majority of the members of a public body regardless of whether the discussion occurs face to face, telephonically, by video conference, or electronically by e-mail, text, tweet, or other form of communication.” White v. King, 147 Ohio St. 3d 74, 78, 60 N.E.3d 1234, 1238, 2016-Ohio-2770, ¶ 15; See also State ex rel. Cincinnati Post v. City of Cincinnati Post v. City of Cincinnati, 76 Ohio St. 3d 540, 668 N.E.2d 903 (1996) (prearranged seriatim, repetitive face-to-face meetings of less than a majority of a city council's members had to be open as a "meeting" where a majority of council attended when the sessions were considered together).
Electronic mail transmittals are likely to be subject to the public inspection and copying under the open records statute. Ohio Rev. Code § 149.43.
Comparec. Text messages
The Supreme Court of Ohio has stated, “R.C. 121.22 prohibits any private prearranged discussion of public business by a majority of the members of a public body regardless of whether the discussion occurs face to face, telephonically, by video conference, or electronically by e-mail, text, tweet, or other form of communication.” White v. King, 147 Ohio St. 3d 74, 78, 60 N.E.3d 1234, 1238, 2016-Ohio-2770, ¶ 15.
Compared. Instant messaging
The Supreme Court of Ohio has stated, “R.C. 121.22 prohibits any private prearranged discussion of public business by a majority of the members of a public body regardless of whether the discussion occurs face to face, telephonically, by video conference, or electronically by e-mail, text, tweet, or other form of communication.” White v. King, 147 Ohio St. 3d 74, 78, 60 N.E.3d 1234, 1238, 2016-Ohio-2770, ¶ 15.
Comparee. Social media and online discussion boards
The Supreme Court of Ohio has stated, “R.C. 121.22 prohibits any private prearranged discussion of public business by a majority of the members of a public body regardless of whether the discussion occurs face to face, telephonically, by video conference, or electronically by e-mail, text, tweet, or other form of communication.” White v. King, 147 Ohio St. 3d 74, 78, 60 N.E.3d 1234, 1238, 2016-Ohio-2770, ¶ 15.
CompareE. Categories of meetings subject to the law
The statute does not define the term "regular meetings." A common sense reading of the statute indicates that regular meetings are those that are scheduled in advance at regular intervals as set forth or authorized in statutes or other legal authorities that govern the particular public body that is holding the meeting. See 1988 Op. Att'y Gen. No. 88-029 (a regular meeting is one held at prescheduled intervals).
Compare1. Regular meetings
Comparea. Definition
The statute does not define the term "regular meetings." A common sense reading of the statute indicates that regular meetings are those that are scheduled in advance at regular intervals as set forth or authorized in statutes or other legal authorities that govern the particular public body that is holding the meeting. See 1988 Op. Att'y Gen. No. 88-029 (a regular meeting is one held at prescheduled intervals).
Compareb. Notice
There is no time limit in the statute for giving notice of regular meetings. Usually, an ordinance, rule, regulation, or statute governing the public body will set forth the schedule for regular meetings, e.g., the first Monday of each month.
Every public body must establish, by rule, a reasonable method whereby any person may determine the time and place of all regularly scheduled meetings. Ohio Rev. Code § 121.22(F).
Every public body may establish by rule the manner of notice. Ohio Rev. Code § 121.11(F). Posting the notice on the door of the meeting place or publishing the notice in a local newspaper both satisfy the notice requirement. Swickrath & Sons Inc. v. Village of Elida, No. 1-03-46, 2003 Ohio App. LEXIS 5620 (Allen Nov. 24, 2003); see also Doran v. Northmont Bd. of Educ., 147 Ohio App. 3d 268, 770 N.E.2d 92, 2002-Ohio-386 (Ohio App. 2d Dist.) ("The general notification required in R.C. 121.22(F) could be as simple as posting a notice on the door where the school board meets.")
A public body is not required to include in its notice the agenda items to be discussed at a regular meeting. However, the public body must comply with requests to give "reasonable advance notification" of all meetings "at which any specific type of public business is to be discussed," provided the requester paid a reasonable fee. The advance notification may be satisfied by mailing copies of the agenda to requesters. Ohio Rev. Code § 121.22(F).
Notice of regular meetings need only state the time and place of the meetings. Ohio Rev. Code § 121.22(F).
Failure to provide notice of regular meetings as provided by law could invalidate official action taken at the meeting or as a result of the meeting. Ohio Rev. Code § 121.22(H).
Although subsection (H) of section 121.22 requires an invalidation of official action when the public body had not established a "rule" for giving notice, several appellate courts have refused to invalidate the act, finding the lack of a rule a mere technical and inconsequential error. E.g., Doran v. Northmont Bd. of Educ., 147 Ohio App. 3d 268, 770 N.E.2d 92, 2002-Ohio-386 (Ohio App. 2d Dist.); Barbeck v. Twinsburg Twp., 73 Ohio App. 3d 587, 597 N.E.2d 1204 (Summit 1992).
The remedies available to enforce the notice requirements are injunction, and probably an extraordinary writ of mandamus or mandatory injunction. Ohio Rev. Code § 121.22(I) (injunction); see State ex rel. Inskeep v. Staten, 74 Ohio St.3d 676, 660 N.E.2d 1207 (1996) (mandamus to enforce open meeting requirement of city charter); White v. Clinton Cty. Bd. of Comm'rs, 76 Ohio St. 3d 416, 667 N.E.2d 1223 (1996) (mandamus to compel the keeping of minutes).
The statute also provides for a civil forfeiture of $500 and a discretionary award of court costs and attorneys' fees. Ohio Rev. Code § 121.22(I)(2). The statute also provides that "[a] resolution, rule, or formal action adopted in an open meeting that results from deliberations in a meeting not open to the public is invalid" unless the closed session was held in accordance with the statute's requirements. Ohio Rev. Code § 121.22(H).
Comparec. Minutes
The statute contains no requirements for minutes, except that they need only reflect the general subject matter of discussions in executive sessions. Ohio Rev. Code § 121.22(C).
Minutes must be created for meetings at which a public body discussed public business even though no votes were taken. State ex rel. Cincinnati Post v. City of Cincinnati, 76 Ohio St. 3d 540, 668 N.E.2d 903 (1996); State ex rel. The Fairfield Leader v. Ricketts, 56 Ohio St. 3d 97, 564 N.E.2d 486 (1990).
Limiting the contents of minutes of regular meetings to a recital of formal rollcall votes without at least summarizing matters discussed violates the statute. Minutes must contain "sufficient facts and information to permit the public to understand and appreciate the rationale behind the relevant public body's decision. White v. Clinton Cty. Bd. of Comm'rs, 76 Ohio St. 3d 416, 667 N.E.2d 1223 (1996) (mandamus); State ex rel. Long v. Council of Cardington, 92 Ohio St. 3d 54, 748 N.E.2d 58 (2001) (city council minutes were not sufficiently detailed and the audio tapes of the proceedings were incomplete and were never intended to serve as the minutes).
Minutes are public record. "The minutes of a regular or special meeting of any public body shall be promptly prepared, filed, and maintained and shall be open to public inspection." Ohio Rev. Code § 121.22(C); see Ohio Rev. Code § 149.43; State ex rel. The Fairfield Leader v. Ricketts, 56 Ohio St. 3d 97, 564 N.E.2d 486 (1990).
Compare2. Special or emergency meetings
Comparea. Definition
Special meetings are not defined in the statute, but a common sense reading of the statute indicates that special meetings are those authorized by law that are not scheduled at regular intervals and are called to discuss or vote upon a particular subject.
Emergency meetings are a kind of special meeting called to consider an emergency that requires "immediate official action." Ohio Rev. Code § 121.22(F).
Compareb. Notice requirements
A public body shall not hold a special meeting unless it gives at least 24 hours' notice in advance to the news media that have requested notification. Ohio Rev. Code § 121.22(F). However, a rule requiring only twenty-four hours' advance notice of special meetings and only to the news media that have requested notification fails, as a matter of law, to establish a "reasonable method of notice" as required by Ohio Rev. Code § 121.22(F). Such notice is necessary, but not sufficient. Kattenrich v. Federal Hocking Local Sch. Dist., 121 Ohio App.3d 579, 700 N.E.2d 626. (Athens App. 1997).
For emergency meetings, the member or members of the public body calling the meeting "shall notify the news media that have requested notification immediately." Ohio Rev. Code § 121.22(F).
Notice of special and emergency meetings must be given to those news media that have requested notification. Ohio Rev. Code § 121.22(F).
Every public body must establish by rule "a reasonable method" of providing notice of special and emergency meetings. Ohio Rev. Code § 121.22(F).
Notice of special meetings must include the "purpose" of the meeting. The public body must comply with requests to give "reasonable advance notification" of all meetings "at which any specific type of public business is to be discussed," provided the requester paid a reasonable fee. The advance notification may be satisfied by mailing copies of the agenda to requesters. Ohio Rev. Code § 121.22(F).
The notice must include the time, purpose, and place of all special and emergency meetings. Ohio Rev. Code § 121.22(F).
Failure to provide notice of special or emergency meetings as provided by law could invalidate official action taken at the meeting or as a result of the meeting. Ohio Rev. Code § 121.22(H).
The remedies available to enforce the notice requirements are injunction, and probably an extraordinary writ of mandamus or mandatory injunction. Ohio Rev. Code § 121.22(I) (injunction); see White v. Clinton Cty. Bd. of Comm'rs, 76 Ohio St. 3d 416, 667 N.E.2d 1223 (1996) (mandamus).
The statute also provides for a civil forfeiture of $500 and a discretionary award of court costs and attorneys' fees. Ohio Rev. Code § 121.22(I)(2). The statute also provides that "[a] resolution, rule, or formal action adopted in an open meeting that results from deliberations in a meeting not open to the public is invalid" unless the closed session was held in accordance with the statute's requirements. Ohio Rev. Code § 121.22(H).
Comparec. Minutes
The statute contains no requirements for minutes, except that they need only reflect the general subject matter of discussions in executive sessions. Ohio Rev. Code § 121.22(C).
Minutes must be created for meetings at which a public body discussed public business even though no votes were taken. State ex rel. Cincinnati Post v. City of Cincinnati, 76 Ohio St. 3d 540, 668 N.E.2d 903 (1996); State ex rel. The Fairfield Leader v. Ricketts, 56 Ohio St. 3d 97, 564 N.E.2d 486 (1990).
Limiting the contents of minutes of regular meetings to a recital of formal rollcall votes without at least summarizing matters discussed violates the statute. Minutes must contain "sufficient facts and information to permit the public to understand and appreciate the rationale behind a public body's decision. White v. Clinton Cty. Bd. of Comm'rs, 76 Ohio St. 3d 416, 667 N.E.2d 1223 (1996) (mandamus).
Minutes are public record. "The minutes of a regular or special meeting of any public body shall be promptly prepared, filed, and maintained and shall be open to public inspection." Ohio Rev. Code § 121.22(C); see Ohio Rev. Code § 149.43; State ex rel. The Fairfield Leader v. Ricketts, 56 Ohio St. 3d 97, 564 N.E.2d 486 (1990).
Compare3. Closed meetings or executive sessions
Comparea. Definition
The statute does not define "executive session," but the definition in Black's Law Dictionary is "a session closed to the public." Ordinarily, a public body does not waive its right to call an executive session if it invites certain persons other than its members to attend for purposes related to the subject matter of the session. See Dayton Newspapers Inc. v. City of Dayton, 28 Ohio App. 2d 95, 274 N.E.2d 766 (1971).
Executive sessions may only be used to consider specific, enumerated topics found in R.C. 121.22(G). See State ex rel. Long v. Cardington Village Council, 92 Ohio St.3d 54, 59 (2001) (office violated R.C. 121.22(G)(1) by using general terms like “personnel” and “personnel and finances” to circumvent open meetings requirements, instead of one or more of the specified statutory purposes listed in division (G)(1)).
Where a city charter commands that all meetings shall be open, and does not provide for executive sessions, no executive sessions are allowed. State ex rel. Fenley v. Kyger, 72 Ohio St.3d 164, 648 N.E.2d 493 (1995).
Compareb. Notice requirements
Executive sessions can occur only during the course of open regular or special sessions. Ohio Rev. Code § 121.22(G). Accordingly, the same notice provisions that apply to regular and special meetings apply to executive sessions, although the notice need not state an intention to hold or call for an executive session.
To convene an executive session, the public body must first hold a roll call vote, and a majority of the body's quorum must vote affirmatively for the executive session. Immediately upon such a vote, the body may convene the executive session. Ohio Rev. Code § 121.22(G).
Anyone who has paid a reasonable fee and requested advance notice of the body's discussion of certain subject matter is entitled to advance notice of that discussion, with no distinction between open and closed discussion. See Ohio Rev. Code § 121.22(F).
Generally, a public body need provide notice of executive sessions only to those present at the regular or special meeting at which the executive session is being convened. Ohio Rev. Code § 121.22(G).
Notice of executive sessions per se need not be posted; it is primarily given by oral motion and roll call vote. Ohio Rev. Code § 121.22(F), (G).
Anyone who has paid a reasonable fee and requested advance notice of the body's discussion of certain subject matter is entitled to advance notice of that discussion, with no distinction between open and closed discussion. See Ohio Rev. Code § 121.22(F).
Information required in notice of executive session is: a roll call vote, specifying the purpose or purposes of the executive session, such as to discuss negotiation strategy for a collective bargaining contract. Ohio Rev. Code § 121.22(G).
If a public body holds an executive session for personnel matters, the motion and vote to hold that executive session must state the specific kind of personnel matter to be discussed, e.g., discipline of a public employee. The notice need not name the person being considered. Ohio Rev. Code § 121.22(G)(1).
Failure to provide notice of executive sessions as provided by law could invalidate official action taken as a result of the executive session. Ohio Rev. Code § 121.22(H).
The remedies available to enforce the notice requirements are injunction, and probably an extraordinary writ of mandamus or mandatory injunction. Ohio Rev. Code § 121.22(I) (injunction); see White v. Clinton Cty. Bd. of Comm'rs, 76 Ohio St. 3d 416, 667 N.E.2d 1223 (1996) (mandamus).
The statute also provides for a civil forfeiture of $500 and a discretionary award of court costs and attorneys' fees. Ohio Rev. Code § 121.22(I)(2). The statute also provides that "[a] resolution, rule, or formal action adopted in an open meeting that results from deliberations in a meeting not open to the public is invalid" unless the closed session was held in accordance with the statute's requirements. Ohio Rev. Code § 121.22(H).
Comparec. Minutes
Minutes of open sessions must contain "sufficient facts and information to permit the public to understand and appreciate the rationale behind" a public body's decision. That necessarily includes a summary of discussion as well as reciting the motions made and votes taken. White v. Clinton Cty. Bd. of Commrs., 76 Ohio St.3d 416, 667 N.E.2d 1223 (1996); State ex rel. Long v. Cardington Village Council, 92 Ohio St.3d 54, 748 N.E.2d 58 (2001).
Merely releasing audio tape recordings of open meetings is insufficient to satisfy the duty to prepare written minutes. State ex rel. Long v. Cardington Village Council, 92 Ohio St.3d 54, 748 N.E.2d 58 (2001).
Even executive sessions require minutes, but the minutes for those closed sessions need only recount the general subject matter of discussion. Ohio Rev. Code § 121.22(C).
Where the executive session was unlawful, any member of the public may sue to compel the creation of minutes containing more detail than would be required for lawful executive sessions. State ex rel. The Fairfield Leader v. Ricketts, 56 Ohio St. 3d 97, 564 N.E.2d 486 (1990).
A public body may hold an executive session only after a majority of a quorum of the public body determines, by roll call vote during an open session, to hold such a session. Ohio Rev. Code § 121.22(G).
The minutes are public record. State ex rel. Citizens for Open Responsive & Accountable Govt. v. Register, 116 Ohio St.3d 88, 876 N.E.2d 913, 2007-Ohio-5542.
Compared. Requirement to meet in public before closing meeting
A public body may hold an executive session only after a majority of a quorum of the public body determines, by roll call vote during an open session, to hold such a session. Ohio Rev. Code § 121.22(G). An executive session must begin and adjourn in open session. Specht v. Finnegan, 149 Ohio App. 3d 201, 776 N.E.2d 564, 2002-Ohio-4660 (Ohio App. 6th Dist.).
Comparee. Requirement to state statutory authority for closing meetings before closure
Before convening executive session, the public body must specify the purpose or purposes of the executive session, such as to discuss negotiation strategy for a collective bargaining contract. Ohio Rev. Code § 121.22(G).
If a public body holds an executive session for personnel matters, the motion and vote to hold that executive session must state the specific kind of personnel matter to be discussed, e.g., discipline of a public employee. The notice need not name the person being considered. Ohio Rev. Code § 121.22(G)(1).
Comparef. Tape recording requirements
The statute contains no provisions authorizing or prohibiting the tape recording of meetings.
An Ohio Attorney General's Opinion states that audio or video recording of meetings is permissible. 1988 Op. Att'y Gen. No. 88-087.
CompareF. Recording/broadcast of meetings
Compare1. Sound recordings allowed
1. Sound recordings allowed.
The statute contains no provisions authorizing or prohibiting the tape recording of meetings.
An Ohio Attorney General's Opinion states that audio or video recording of meetings is permissible if it does not unduly interfere with the meeting. 1988 Op. Att'y Gen. No. 88-087.
Audio and video taping of meetings by news organizations is fairly common.
Compare2. Photographic recordings allowed
The statute does not address photography of meetings; the Ohio Attorney General has opined that videotaping is permissible; as a matter of custom, photography and video taping of meetings by news organizations is fairly common. 1988 Op. Att'y Gen. No. 88-087.
The court of appeals has raised questions about whether a city council has the authority to require citizens to "register in advance" if they intend to audio record a meeting, and to display the recording device on the village council table. Spratt v. Rickey, (4th Dist.-Adams 1998), 1998 WL 144432.
The same court of appeals later opined that "a blanket prohibition on recording a public meeting . . . does not appear to be justified." Kline v. Davis, (4th Dist.-Lawrence), 2001 WL 1590658.
Public bodies may audio tape or video tape their meetings. "Audio- or videotape recordings . . . are all legitimate means of satisfying the requirements of R.C. 121.22." White v. Clinton Cty. Bd. of Comm'rs, 76 Ohio St. 3d 416, 667 N.E.2d 1223 (1996).
CompareG. Access to meeting materials, reports and agendas
A public body must promptly prepare, file, maintain, and allow the public to inspect the minutes of open meetings, along with the “general subject matter of discussion” in any executive session. R.C. 121.22(C). The minutes must be “full and accurate,” and must include "more than a record of mere roll call votes." White v. Clinton Cty. Bd. of Commrs., 76 Ohio St.3d 416, 419-420, 1996-Ohio-380. Courts have extended this requirement to a clerk’s handwritten notes used to prepare the minutes of a public body’s open meeting. State ex rel. Verhovec v. Marietta, 2013-Ohio-5415 (4th Dist.).
The Open Meetings Act expressly invalidates any action taken in executive session that is not later adopted in an open meeting of the public body (R.C. 121.22(H)), and so a public body may not withhold a settlement agreement resolving litigation, even though it can maintain the confidentiality of the legal discussions with the public body’s attorney resulting in the agreement under R.C. 121.22(G)(3). State ex rel. Kinsley v. Berea Bd. of Ed., 64 Ohio App. 659, 664, 582 N.E.2d 653, 656 (8th Dist. 1990). Similarly, although meetings between public employers and employee organizations are private and not public meetings under R.C. 4117.21, the collective bargaining agreements resulting from those negotiations are public records and subject to disclosure under the Public Records Act. State ex rel. Findlay Publishing Co. v. Hancock Cty. Bd. of Commrs., 80 Ohio St.3d 134, 1997-Ohio-353.
CompareH. Are there sanctions for noncompliance?
A public body will be required to pay a $500 civil forfeiture for each violation of the Sunshine Law, court costs, and attorney fees. Ohio Rev. Code § 121.22(I)(2). The court, in its discretion, may reduce the amount of attorney fees. Id. A $500 fee will be assessed for each instance of an unlawfully secret meeting. Specht v. Finnegan, 149 Ohio App. 3d 201, 776 N.E.2d 564, 2002-Ohio-4660 (Ohio App. 6th Dist.).
Any "resolution, rule, or formal action" adopted in contravention of the Sunshine Law or any "resolution, rule, or formal action" resulting from deliberations conducted in violation of the Sunshine Law is invalid. Ohio Rev. Code § 121.22(H).
A member of a public body who knowingly violates an injunction issued under the Sunshine Law can be removed from office. Ohio Rev. Code § 121.22(I)(4).
A court, in its discretion, may assess a plaintiff who brings a frivolous action under the Sunshine Law court costs and reasonable attorney fees. Ohio Rev. Code § 121.22(I)(2).
CompareII. Exemptions and other legal limitations
CompareA. Exemptions in the open meetings statute
Compare1. Character of exemptions
Public bodies exempt in whole or in part from the statute are specifically enumerated in the statute or in other parts of the Revised Code of Ohio.
Executive sessions are discretionary, except for veterans service commissions, which are required to hold executive sessions when interviewing or considering applicants for financial assistance. Ohio Rev. Code § 121.22(J) (veterans service commission).
Compare2. Description of each exemption
Grand juries are exempt from all parts of the statute and at all times. Ohio Rev. Code § 121.22(D)(1).
Audit conferences conducted by the state auditor or an independent CPA with officials of the public office that is the subject of the audit are exempt from the statute. Ohio Rev. Code § 121.22(D)(2).
The adult parole authority is exempt from the statute when its hearings are conducted at a penal institution for the sole purpose of interviewing inmates to determine parole or pardon. Ohio Rev. Code § 121.22(D)(3).
The Ohio organized crime investigations commission is exempt from the statute. Ohio Rev. Code § 121.22(D)(4).
Meetings held by a child fatality review board. Ohio Rev. Code § 121.22(D)(5).
The state medical board, board of nursing, board of pharmacy, and chiropractic board are exempt from the statute when determining whether to suspend a certificate without a prior hearing. Ohio Rev. Code § 121.22(D)(6) - (9).
The executive committee of the emergency response commission is exempt from the statute when determining whether to issue an enforcement order or request enforcement litigation. Ohio Rev. Code § 121.22(D)(10).
The board of directors or any committee of the nonprofit corporation JobsOhio or any of its subsidiaries are exempt. Ohio Rev. Code §§ 121.22(D)(11), 187.01.
The following state agencies are exempt from the statute when meeting to consider granting financial assistance for businesses when all members of the board vote unanimously to close the meeting during consideration of financial and business information confidentially received by the board from the applicant for assistance:
- state controlling board;
- state development financing advisory council;
- state industrial technology and enterprise advisory council;
- state tax credit authority;
- state minority development financing advisory board.
Ohio Rev. Code § 121.22(E).
Municipalities which have adopted home rule charters may be exempt from the statute, at least where the charter conflicts directly with the statute. Hills & Dales, Inc, v. City of Wooster, 4 Ohio App. 3d 240, 448 N.E.2d 163 (1982); City Comm'n of Piqua v. Piqua Daily Call, 64 Ohio App. 2d 222, 412 N.E.2d 1331 (1979). But, many home rule cities have charter provisions or ordinances providing for open meetings or adopting the provisions of Ohio Rev. Code § 121.22. State ex rel. Cincinnati Post v. City of Cincinnati, 76 Ohio St. 3d 540, 668 N.E.2d 903 (1996); State ex rel. Inskeep v. Staten, 74 Ohio St. 3d 676, 660 N.E.2d 1207 (1996); State ex rel. Fenley v. Kyger, 72 Ohio St. 3d 164, 648 N.E.2d 493 (1995); State ex rel. Plain Dealer Publishing Co. v. Barnes, 38 Ohio St. 3d 165, 527 N.E.2d 807 (1988).
CompareB. Any other statutory requirements for closed or open meetings
The provisions of Ohio Rev. Code Chapter 1347 (known as the Privacy Act) shall not be construed to authorize a public body to hold an executive session for the discussion of personal information other than as authorized by Ohio Rev. Code § 121.22. Ohio Rev. Code § 1347.04.
Meetings of the board of trustees of the Ohio police and firemen's pension fund may be closed to discuss medical records. Ohio Rev. Code § 742.07.
Meetings of the state teachers retirement board, school employees retirement board, and state highway patrol retirement board may be conducted in executive session to discuss medical records. Ohio Rev. Code §§ 3307.09, 3309.09, 5505.04.
Parole board hearings are not subject to the open meetings statute. Ohio Rev. Code § 5149.101(C).
The state dental board's proceedings related to the investigation of a complaint or the determination of whether there are reasonable grounds to believe that a violation of law governing the practice of dentistry has occurred is confidential. Ohio Rev. Code § 4715.03.
The Ohio cemetery dispute resolution committee may conduct confidential meetings to consider the merits of a complaint before it. Ohio Rev. Code § 4767.06.
A hearing by the Ohio department of health on a nursing home administrator's attempt to transfer or discharge a resident is not subject to the open meetings statute. Ohio Rev. Code § 3721.162(B).
All proceedings of the board of county commissioners shall be public. Ohio Rev. Code § 305.09.
The meetings of a legislative authority of a municipality shall, at all times, be open to the public. Ohio Rev. Code § 731.46.
CompareC. Court mandated opening, closing
No reported Ohio decision required a public body to close a meeting that it was going to open.
Ohio courts have stated that the following should have been open to the public:
- back-to-back repetitive sessions of groups of a municipal council numbering fewer than a majority at each session, State ex rel. Cincinnati Post v. City of Cincinnati, 76 Ohio St. 3d 540, 668 N.E.2d 903 (1996);
- meetings of a full city council where a municipal charter required all meetings to be open, e.g., State ex rel. Plain Dealer Publishing Co. v. Barnes, 38 Ohio St. 3d 165, 527 N.E.2d 807 (1988);
- a "retreat" or "workshop" at which a majority of the members of a county board of commissioners and a township board of trustees discussed public business with a majority of the council of a municipality, State ex rel. The Fairfield Leader v. Ricketts, 56 Ohio St. 3d 97, 564 N.E.2d 486 (1990);
- a school board session to discuss anticipated budget cuts that would affect the number of people employed by the school district, Gannett Satellite Info. Network v. Chillicothe City School Dist., 41 Ohio App. 3d 218, 534 N.E.2d 1239 (1988);
- a committee appointed by a municipal council to make recommendations, Maser v. City of Canton, 62 Ohio App. 2d 174, 405 N.E.2d 731 (1978).
III. Meeting categories - open or closed
CompareA. Adjudications by administrative bodies
Quasi-judicial administrative adjudicative hearings are governed by Ohio Rev. Code chapter 119. Adjudicative agency hearings subject to chapter 119 are not meetings under the open meetings statute. TBC Westlake Inc. v. Hamilton County Bd. of Revision, 81 Ohio St.3d 58, 689 N.E.2d 32 (1998).
Compare1. Deliberations closed, but not fact-finding
There is no statutory or case law addressing this issue (not applicable).
Compare2. Only certain adjudications closed, i.e. under certain statutes
There is no statutory or case law addressing this issue (not applicable).
CompareB. Budget sessions
Open sessions. Ohio Rev. Code § 121.22(B)(2).
CompareC. Business and industry relations
Open sessions, except that the industrial technology and enterprise advisory board, the tax credit authority, the minority development financing commission, the development financing advisory board, and the controlling board may close discussions of financial and business data, and marketing plans, with a unanimous vote of all members. Ohio Rev. Code § 121.22(B)(2),(E).
CompareD. Federal programs
Open sessions. Ohio Rev. Code § 121.22(B)(2).
CompareE. Financial data of public bodies
Open sessions unless an audit conference. Ohio Rev. Code § 121.22(B)(2),(D)(2).
CompareF. Financial data, trade secrets, or proprietary data of private corporations and individuals
Open sessions, except that county hospitals may hold closed sessions to consider trade secrets. Ohio Rev. Code § 121.22(G)(7). Also, veterans service commissions shall hold executive sessions when reviewing applications for financial assistance and interviewing applicants. Ohio Rev. Code § 121.22(J).
However, in light of the Ohio Supreme Court's ruling in State ex rel. Allright Parking Co. v. City of Cleveland, 63 Ohio St. 3d 772, 591 N.E.2d 708 (1992), that public offices cannot be compelled to release otherwise public records containing the trade secrets of private businesses, the same rationale may apply to meetings of public bodies.
CompareG. Gifts, trusts and honorary degrees
Open sessions. Ohio Rev. Code § 121.22(B)(2).
CompareH. Grand jury testimony by public employees
Grand juries are exempt from the open meetings statute. Ohio Rev. Code § 121.22(D)(1); Ohio R. Crim. P. 6(E).
CompareI. Licensing examinations
There is no authority for closing licensing examinations as such, where they otherwise qualify as prearranged discussions of public business by a majority of the members of a public body. In limited circumstances, the state medical board, state nursing board, state pharmacy board, state chiropractic board, and state dental board may close sessions related to determining whether to suspend licenses without hearing. Ohio Rev. Code § 121.22(D); Ohio Rev. Code § 4715.03.
CompareJ. Litigation, pending litigation or other attorney-client privileges
A public body's conferences with its attorney are open except that a public body may convene an executive session to confer with its attorney concerning disputes involving the public body that are the subject of pending or imminent court action. Ohio Rev. Code § 121.22(G)(3); see Cincinnati Enquirer v. Hamilton Cty. Comm'rs, No. C-010605, 2002 WL 727023 (Hamilton Apr. 26, 2002) (finding it was proper for county to conduct executive session to discuss the hiring of legal counsel for imminent litigation).
CompareK. Negotiations and collective bargaining of public employees
A public body may convene an executive session to prepare for, conduct, or review negotiations or bargaining sessions with public employees concerning their compensation or other terms and conditions of their employment. Ohio Rev. Code § 121.22(G)(4).
Compare1. Any sessions regarding collective bargaining
There is no statutory or case law addressing this issue (beyond the above).
Compare2. Only those between the public employees and the public body
There is no statutory or case law addressing this issue (beyond the above).
CompareL. Parole board meetings, or meetings involving parole board decisions
Parole board meetings are exempt from the open meetings statute. Ohio Rev. Code § 5149.101. There is no authority for exempting meetings about parole board decisions held by other bodies.
CompareM. Patients, discussions on individual patients
The statute contains no authority for executive sessions to discuss patients.
CompareN. Personnel matters
The statute permits executive sessions "to consider" the appointment, employment, dismissal, discipline, promotion, demotion, or compensation of a public employee or official. Ohio Rev. Code § 121.22(G)(1); Doran v. Northmont Bd. of Educ., 147 Ohio App. 3d 268, 770 N.E.2d 92, 2002-Ohio-386 (Ohio App. 2d Dist.) (school board complied with Sunshine Law when it held executive sessions to discuss the hiring of a superintendent).
The statute also permits executive sessions for the investigation of charges or complaints against a public employee or official, although the public body must comply with the employee's request for an open hearing where the employee otherwise has a right to a hearing. Ohio Rev. Code § 121.22(G)(1); Matheny v. Frontier Local School Bd., 62 Ohio St. 2d 362, 405 N.E.2d 1041 (1980).
The statute prohibits public bodies from holding executive sessions for the discipline or removal from office of an elected official for conduct related to the official's performance of that official's duties. Ohio Rev. Code § 121.22(G)(1).
Compare1. Interviews for public employment
The statute does not explicitly address interviews, but since it does permit executive sessions "to consider" the "appointment" or "employment" of a public employee or official, public bodies can make a strong argument that their interviews of candidates for public employment can be conducted in closed session. Ohio Rev. Code § 121.22(G)(1). Conversely, a purpose of the executive sessions is to discuss the relative merits of candidates candidly without the inhibiting presence of that or other candidates. Closing the interview process does not seem to foster that purpose.
Compare2. Disciplinary matters, performance or ethics of public employees
The statute permits executive sessions to discipline public employees or officials who are not elected, but bars executive sessions for the discipline or removal from office of elected officials. Ohio Rev. Code § 121.22(G)(1).
The statute does not explicitly address executive sessions to consider the "performance" or "ethics" of public employees. The statute does permit executive sessions to "consider" the "promotion, demotion, or compensation," or the "employment, dismissal," or "discipline" of public employees. Ohio Rev. Code § 121.22(G)(1). To the extent that considering promotion, demotion, employment, compensation, dismissal, or discipline includes evaluating an employee's ethics or performance, the statute permits executive sessions. Whether the authority for executive sessions extends to routine consideration of employee performance reviews is less clear, although it may fall within the scope of considering an employee's "employment."
Compare3. Dismissal, considering dismissal of public employees
The statute permits executive sessions to consider the dismissal of public employees or officials. However, the statute bars executive sessions for the discipline or removal from office of elected officials for conduct related to that official's performance of official duties. Ohio Rev. Code § 121.22(G)(1).
CompareO. Real estate negotiations
All discussion about real estate must be in open session, except:
· The purchase of property for public purposes if premature disclosure of information would give an unfair competitive or bargaining advantage to a person whose personal, private interest is adverse to the general public interest. Ohio Rev. Code § 121.22(G)(2).
· The sale of property at competitive bidding if premature disclosure of information would give an unfair competitive or bargaining advantage to a person whose personal, private interest is adverse to the general public interest. Ohio Rev. Code § 121.22(G)(2).
CompareP. Security, national and/or state, of buildings, personnel or other
All discussions of security matters must be held in open session, except details relative to the security arrangements and emergency response protocols for a public body or a public office, if disclosure of matters discussed could reasonably be expected to jeopardize the security of the public body or public office. Ohio Rev. Code § 121.22(G)(6). During a declared emergency, R.C. 5502.24(B) provides for an exception to “compliance with time-consuming procedures and formalities prescribed by law.”
CompareQ. Students, discussions on individual students
All discussions about students must be held in open session, except discussion of a charge or complaint against a student in a public educational institution. Ohio Rev. Code §§ 121.22(G)(1) and (B)(3)(a).
CompareIV. Procedure for asserting right of access
CompareA. When to challenge
Compare1. Does the law provide expedited procedure for reviewing request to attend upcoming meetings?
The statute does not provide for expedited procedure. However, the remedies of injunction and mandamus often receive expedited treatment by the courts where it is apparent that fast action is needed to provide relief. See Ohio Rev. Code § 2501.09.
Compare2. When barred from attending
When a public body threatens to bar public attendance from a future meeting, the person seeking to attend may commence an injunction action in common pleas court. Ohio Rev. Code § 121.22(I)(1).
Compare3. To set aside decision
When a public body has already decided to close a meeting which has yet to occur, the person seeking to attend may commence an injunction action in common pleas court. Ohio Rev. Code § 121.22(I)(1).
A person seeking to attend an unlawfully closed may commence a mandamus action in the common pleas court or in an appellate level court to require the public body to vacate its decision. The statute does not address the remedy of mandamus, but the Ohio Supreme Court allowed a newspaper to seek a writ while the meeting was ongoing. State ex rel. Plain Dealer Pub. Co. v. Barnes, 38 Ohio St.3d 165, 527 N.E.2d 807 (1988).
Mandamus is not available to compel a public body to comply with the Sunshine Law in the future. State ex rel. Am. Civ. Liberties Union of Ohio, Inc. v. Cuyahoga Cty Bd. of Commrs, 128 Ohio St.3d 256, 943 N.E.2d 553, 2011-Ohio-625; State ex rel. Adams v. Rockwell, 167 Ohio St. 15, 145 N.E.2d 685 (1957).
But see State ex rel. Inskeep v. Staten, 74 Ohio St.3d 676, 660 N.E.2d 1207 (1996) (writ of mandamus granted "ordering respondents to open all council meetings to the public, as required by . . . the Mason City Charter").
Compare4. For ruling on future meetings
When a public body has already decided to close a future meeting, or threatens to close a future meeting, the person seeking to attend may commence an injunction action in common pleas court. Generally, an injunction action in common pleas court will be treated expeditiously. Ohio Rev. Code § 121.22(I)(1).
Compare5. Other
The statute requires that an injunction action authorized by the statute must be brought within two years after the date of the alleged violation or threatened violation. Ohio Rev. Code § 121.22(I)(1).
Mandamus is an appropriate remedy to compel the creation of minutes of meetings, whether open or closed, and if closed, regardless of whether the meeting was closed lawfully. State ex rel. Cincinnati Post v. City of Cincinnati, 76 Ohio St. 3d 540, 668 N.E.2d 903 (1996); White v. Clinton Cty. Bd. of Comm'rs, 76 Ohio St. 3d 416, 667 N.E.2d 1223 (1996); State ex rel. The Fairfield Leader v. Ricketts, 56 Ohio St. 3d 97, 564 N.E.2d 486 (1990).
Where a public body unlawfully closed a meeting before the person seeking to attend could bring suit, a procedurally sound way to challenge the closure after the meeting is to sue the public body to compel the creation of minutes of the meeting. Otherwise, the person seeking attendance could seek a declaratory judgment, injunction, or mandamus, arguing that the matter is capable of repetition, yet evading review and is not moot. State ex rel. Plain Dealer Publishing Co. v. Barnes, 38 Ohio St. 3d 165, 527 N.E.2d 807 (1988).
Another remedy for challenging the closure of a meeting after it is over is to sue to invalidate whatever action the public body took as a result of the closed meeting (or during it). Ohio Rev. Code § 121.22(H). The virtue of that remedy, like the virtue of seeking the creation of minutes after the conclusion of closed meetings, is that the court necessarily will rule on the lawfulness of closing the meeting and thus create a principle of law guiding future meetings. However, the remedy of seeking invalidation is not recommended because courts try hard to avoid invalidating action already taken, and construe the duty to open meetings narrowly.
CompareB. How to start
(This section is blank. See the subpoints below.)
Compare1. Where to ask for ruling
(This section is blank. See the subpoints below.)
Comparea. Administrative forum
There is no requirement that a person seek any kind of decision from any administrative agency about the propriety or lawfulness of closing a meeting. There is no administrative agency or commission with the duty to arbitrate disputes over closing meetings.
Compareb. State attorney general
The state attorney general's office has no authority to decide disputes between a person seeking access to a meeting and a public body. However, as counsel for state agencies, the Attorney General will advise those agencies about the open meetings statute. As a courtesy, the attorney general's office often has answered questions from persons seeking access.
Comparec. Court
The enforcement of the duties imposed upon public bodies by the statute is through judicial remedies. Those remedies are:
- Injunction. Ohio Rev. Code § 121.22(I)(1).
- Mandamus. State ex rel. Inskeep v. Staten, 74 Ohio St.3d 676, 660 N.E.2d 1207 (1996). State ex rel. The Fairfield Leader v. Ricketts, 56 Ohio St. 3d 97, 564 N.E.2d 486 (1990).
- Invalidation of action taken in or resulting from a session closed in violation of the statute. Ohio Rev. Code § 121.22(H).
- A member of a public body who knowingly violates an injunction to obey the statute may be removed from office by an action brought by a prosecuting authority or the attorney general. Ohio Rev. Code § 121.22(I)(4).
2. Applicable time limits
The statute requires that an injunction action authorized by the statute must be brought within two years after the date of the alleged violation or threatened violation. Ohio Rev. Code § 121.22(I)(1).
The statute does not address mandamus actions or any time limit for bringing them.
Otherwise, the statute imposes no time limits.
Compare3. Contents of request for ruling
The person suing for injunctive relief must refer to the statute, specifically § 121.22(I), and should state that the statute provides that irreparable harm is "conclusively and irrebuttably presumed," as is prejudice to the person seeking injunctive relief.
Otherwise, the statute does not address how to ask a public body to open a meeting, create minutes, or otherwise comply with the duties imposed by the statute. A request for compliance can be in writing or orally.
Compare4. How long should you wait for a response
The statute does not prescribe any waiting period for a response to a request to comply with the statute. As a practical matter, the person seeking access should wait long enough before suing that a neutral judge is likely to believe was fair and reasonable under the circumstances.
Compare5. Are subsequent or concurrent measures (formal or informal) available?
The best subsequent measure available is to sue in mandamus for the creation of minutes of meetings that were unlawfully closed. State ex rel. Cincinnati Post v. City of Cincinnati, 76 Ohio St. 3d 540, 668 N.E.2d 903 (1996); State ex rel. The Fairfield Leader v. Ricketts, 56 Ohio St. 3d 97, 564 N.E.2d 486 (1990).
CompareC. Court review of administrative decision
(This section is blank. See the subpoints below.)
Compare1. Who may sue?
"Any person" may sue to enforce the duties imposed by the statute, and the elements of irreparable harm or prejudice to that person are conclusively and irrebuttably presumed. Ohio Rev. Code §§ 121.22(I)(1),(3).
Compare2. Will the court give priority to the pleading?
The statute does not provide for expedited procedure, however, the remedies of injunction and mandamus often receive expedited treatment by the courts where it is apparent that fast action is needed to provide relief. See Ohio Rev. Code § 2501.09.
Compare3. Pro se possibility, advisability
The statute does not bar pro se actions, but litigation in this area is highly specialized with the public sector having experienced counsel and generally an advantage because the public body knows more about what it did or what it is going to do than does the person seeking to enforce the statute.
Also, pro se litigants are unlikely to be awarded attorneys' fees. See Fant v. Bd. of Trustees, Regional Transit Auth., 50 Ohio St.3d 72, 552 N.E.2d 639, cert. denied, 498 U.S. 967 (1990).
Compare4. What issues will the court address?
The court will order the meeting at issue to be open. Ohio Rev. Code § 121.22(I)(1).
Comparea. Open the meeting
The court will order the meeting at issue to be open. Ohio Rev. Code § 121.22(I)(1).
Compareb. Invalidate the decision
- The court has the authority to invalidate a public body's decision reached in a closed session, or reached as a result of deliberation during an unlawfully closed session. Ohio Rev. Code § 121.22(H).
c. Order future meetings open
The court has the authority to order the opening of future meetings. Ohio Rev. Code § 121.22(I)(1); see State ex rel. Inskeep v. Staten, 74 Ohio St. 3d 676, 660 N.E.2d 1207 (1996).
Compare5. Pleading format
There is no special pleading format for enforcing the duties of the statute. The appendix includes a sample format.
Compare6. Time limit for filing suit
The statute requires that an injunction action authorized by the statute must be brought within two years after the date of the alleged violation or threatened violation. Ohio Rev. Code § 121.22(I)(1).
The statute does not address mandamus actions or any time limit for bringing them.
Compare7. What court?
Injunction actions must be brought in common pleas court, and should be brought in the county where the public body is located.
For mandamus relief, where that remedy is appropriate, sue in common pleas court, or a court of appeals, or the Ohio Supreme Court. Art. IV, § 2, Ohio Constitution.
Compare8. Judicial remedies available
The available judicial remedies are:
- Injunction. Ohio Rev. Code § 121.22(I)(1).
- Award enjoined public body to pay civil forfeiture of $500 to the person who successfully obtained injunction. Ohio Rev. Code § 121.22(I)(2).
- Mandamus. State ex rel. Inskeep v. Staten, 74 Ohio St.3d 676, 660 N.E.2d 1207 (1996), State ex rel. The Fairfield Leader v. Ricketts, 56 Ohio St. 3d 97, 564 N.E.2d 486 (1990).
- Invalidation of action taken in or resulting from a session closed in violation of the statute. Ohio Rev. Code § 121.22(H); see, e.g., Maddox v. Greene Cty. Children Servs. Bd. of Dirs., 12 N.E.3d 476, 491, 2014-Ohio-2312, ¶ 35 (invalidating termination of employee based upon deliberations that occurred in violation of the Open Meetings Act.
- A member of a public body who knowingly violates an injunction to obey the statute may be removed from office by an action brought by a prosecuting authority or the attorney general. Ohio Rev. Code § 121.22(I)(4).
9. Availability of court costs and attorney's fees
A court granting an injunction under the statute "shall" award to the party that sought the injunction "all court costs" and "reasonable attorney's fees." Ohio Rev. Code § 121.22(I)(2); see Mansfield City Council v. Richland Cty. Council AFL-CIO, No. 03 CA 55, 2003 WL 23652878 (Richland Dec. 24, 2003) (awarding $7,500 in attorney fees while stating that $150 per hour is a reasonable rate).
The court has the discretion to reduce an award of attorneys' fees, or to award no attorneys' fees, where the court determines both of the following:
· That, based on the ordinary application of statutory law and case law as it existed at the time of violation or threatened violation, a well-informed public body reasonably would believe that the public body was not violating the open meetings statute; and
· That a well-informed public body reasonably would believe that its conduct would serve the public policy that underlies the authority asserted by the public body for not acceding to the demands of the person who successfully sought the injunction.
Ohio Rev. Code §§ 121.22(I)(2)(i), (ii).
The court may award attorneys' fees to a prevailing public body only where the court finds that the suit was frivolous. Ohio Rev. Code § 121.22(I)(2)(b).
Compare10. Fines
Where the court issues an injunction under the statute, the court "shall" order the enjoined public body to pay $500 to the person who successfully sought the injunction. Ohio Rev. Code § 121.22(I)(2); Specht v. Finnegan, 149 Ohio App. 3d 201, 776 N.E.2d 564, 2002-Ohio-4660 (Ohio App. 6th Dist.) (assessing a $500 fee for each unlawful meeting).
Compare11. Other penalties
Invalidation of action taken in or resulting from a session closed in violation of the statute. Ohio Rev. Code § 121.22(H). Doran v. Northmont Bd. of Educ., 147 Ohio App. 3d 268, 770 N.E.2d 92, 2002-Ohio-386 (Ohio App. 2d Dist.) (refusing to invalidate action, viewing a board's failure to establish a notice rule as a mere technical violation).
A member of a public body who knowingly violates an injunction to obey the statute may be removed from office by an action brought by a prosecuting authority or the attorney general. Ohio Rev. Code § 121.22(I)(4).
CompareD. Appealing initial court decisions
Compare1. Appeal routes
Final judgments of a common pleas court are appealable to the court of appeals for the judicial district in which the common pleas court sits. Ohio R. App. P. 4. Appeals of mandamus actions originating in the court of appeals may be appealed as of right to the Ohio Supreme Court. Art. IV, § 2(B)(2)(a)(i), Ohio Constitution.
Compare2. Time limits for filing appeals
Thirty days from the date of the common pleas court judgment appealed from. Ohio R. App. P. 4.
Forty-five days from the date of the court of appeals judgment appealed from. Ohio Supreme Court Rules of Practice, Rule II, § 2(A)(1).
Compare3. Contact of interested amici
Amici briefs are not favored in common pleas court. Amici briefs are often filed in the court of appeals and in the Ohio Supreme Court. Usually, amici briefs are due on the same day that the brief for the party being supported is due.
The Reporters Committee for Freedom of the Press often files amicus briefs in cases involving significant media law issues before a state's highest court.
CompareV. Asserting a right to comment
Nothing in the open meetings statute obligates public bodies to permit citizens to speak or to present petitions.
CompareA. Is there a right to participate in public meetings?
There is no statutory or case law addressing this issue (not applicable).
CompareB. Must a commenter give notice of intentions to comment?
There is no statutory or case law addressing this issue (not applicable).
CompareC. Can a public body limit comment?
There is no statutory or case law addressing this issue (not applicable).
CompareD. How can a participant assert rights to comment?
There is no statutory or case law addressing this issue (not applicable).
CompareE. Are there sanctions for unapproved comment?
There is no statutory or case law addressing this issue (not applicable).
CompareAppendix
Sample pleading format:
IN THE COURT OF COMMON PLEAS
CUYAHOGA COUNTY, OHIO
DAVID MARBURGER, )
CASE NO. )
Plaintiff, ) JUDGE
)
vs. )
)
CITY OF CLEVELAND, ) COMPLAINT
)
Defendant. )
1. Plaintiff is a freelance journalist who writes and causes to be published news and information of public interest to the general public of northeast Ohio.
2. Defendant is a municipality of Ohio.
3. On January 3, 2001, plaintiff transmitted a letter to the Director of the Planning Commission of the City of Cleveland, an agent and official of the defendant, asking to inspect certain public records of the City. A copy of that request is attached as Exhibit 1.
4. On January 5, 2001, the Director of the Planning Commission notified plaintiff that the Director would not comply with the request.
5. Pursuant to R.C. 149.43 [Ohio's Public Records Act], plaintiff has a clear legal right to inspect the requested records, and defendant has a clear legal duty to make the requested records available for inspection by plaintiff and any other interested citizen. Defendant's refusal to allow the requested inspection violated plaintiff's clear legal right and defendant's clear legal duty.
6. Defendant has no valid justification or excuse for refusing the requested inspection.
7. Plaintiff is entitled to a writ of mandamus compelling defendant to permit the requested inspection; plaintiff has no adequate alternative remedy in the ordinary course of the law.
Respectfully submitted,
David L. Marburger
14650 Detroit Avenue, Suite 450
Cleveland, Ohio 44107
(216) 930-0500
Compare