Government Relations Client Bulletin January Bricker Eckler LLP South Third

Government Relations Client Bulletin January 2007 Bricker & Eckler LLP 100 South Third Street Columbus, Ohio 43215-4291 Phone 614 . 227 . 2300 Fax 614 . 227 . 2390 info@bricker.com www.bricker.com COLUMBUS CLEVELAND CINCINNATI-DAYTON Public Records Legislation Requires Training O n June 27, 2007, all state and local governmental entities will be required to understand and implement significant new procedures for responding to public records requests. House Bill 9, sponsored by Rep. Scott Oelslager (R-Canton), makes significant changes to the Ohio Public Records Act. Among those important changes are requirements for responding to public records requests, penalties for failure to properly respond under the new law, and for training of public officials. requesting documents of any redaction made, or make the redaction plainly visible. The public body is required also to provide citations to legal authority for its denial of a request. Thus, the public body must be capable of citing to not only the Public Records Act, but potentially to case law that interprets the Act. In exceptional cases, the public body may have to turn to legal counsel for a proper legal citation. Any redaction of information pursuant to a public records request is deemed to be a denial of the request “except if federal or state law authorizes or requires a public office to make the redaction.” Another amendment to the Act recognizes that a public body may deny a request that is ambiguous or overly broad, or when the public body cannot reasonably identify what records are being requested. However, in such cases, the public body must provide the requesting person with an opportunity to revise the request by informing the requesting person of the following: 1) the manner in which the records are maintained by the public office; and 2) how the records are accessed in the ordinary course of the public offices’ or persons’ duties. The purpose of this provision is to ensure that public bodies do not deny the release of legitimate public records simply because the requesting person does not have a sophisticated knowledge of how the records are kept. The new law now also clarifies that a public body may require the person requesting records to pay the cost involved in providing those Responding to Public Records Requests Much of House Bill 9 added language to the Public Records Act to explicitly require public bodies to respond in a particular way when they receive a public records request. The requirement for responding “promptly” to records requests remains unchanged in the law. However, several new provisions impose new duties on public bodies. This document has been prepared as a general reference document for informational purposes. The information contained herein is not intended to be and should not be construed as legal advice. Each circumstance should be considered and evaluated separately, and possibly with involvement of legal counsel. Please contact Bricker & Eckler for permission to reprint this bulletin in part, or in its entirety. A common issue faced by public bodies when they receive a public records request is what to do about documents containing information that should not be released, such as trade secrets or attorney-client privileged documents. Case law previously required that the exempt information be redacted and that the remaining documents be released. The recent amendments to the Act make this procedure explicit while adding several new requirements to the procedure. First, if a public body redacts a record, the person responsible for the record must notify the person January 2007 Government Relations Client Bulletin records in advance. The law further clarifies that the public body is not required to allow the person requesting records to make the copies of the public record themselves. Requestors may still request records in paper format or in any format in which the public office keeps them. The General Assembly also adopted language in order to provide greater public access to records retention schedules. While records retention schedules always have been public records subject to disclosure under the Public Records Act, the statute now requires that a public office make “available a copy of its current records retention schedule at a location readily available to the public.” Unless specifically required or authorized by specific state or federal law, a public office cannot limit or condition the availability of public records by requiring disclosure of the requesting person’s identity or the intended use of the requested public record. Any attempt to do so is considered a denial of the request. An important exception to this requirement is contained in Ohio Revised Code 3319.321, the statute that governs student records in Ohio. House Bill 9 amends that statute to make it clear that when a school district receives a request for student directory information, it can require disclosure of a requesting person’s identity or the intended use of the information, in order to ascertain whether the information will be used for a profit-making plan or activity. This is important because Ohio Revised Code 3319.321 traditionally has prohibited the release of student information for use in profit making-plans or activities. The Public Records Act now will contain restrictions on when a public body can request that a public records request be placed in writing. Previous to House Bill 9, public bodies could ask that a request be placed in writing; however, public bodies could not require that a request be placed in writing. Under the new statute, a public body can ask that a request be placed in writing only if two conditions are met. First, it may do so only after disclosing that a written request is not mandatory, and that the requesting person may decline to reveal his or her identity or the intended use of the information. Second, the public body may ask that the request be placed in writing when a written request or disclosure of the identity or intended use would benefit the requesting person by enhancing the ability of the public office to identify, locate or deliver public records. Penalties for Wrongful Denial of Public Records Requests Prior to the adoption of House Bill 9, public bodies faced the possibility of paying attorneys fees if the requesting person had to resort to the courts in order to obtain public records. The General Assembly has now added language to the Public Records Act to provide that a public body may be required to pay court costs and statutory damages in addition to attorney’s fees in such cases. In certain cases, the award of attorney’s fees will be mandatory, absent certain mitigating determinations from a court. A requesting person is entitled to statutory damages only if the public records request was submitted in writing by hand delivery or certified mail, providing proof of the request. In such a case, if the court determines that a public office wrongfully withheld public records, the requesting person is entitled to statutory damages of $100.00 for each business day during which the public records were wrongfully withheld. The amount of statutory damages is capped at $1,000.00, and the time period that is used to determine the amount of statutory damages begins on the day on which the requesting person files a mandamus action in court to recover the statutory damages. The court may reduce the award of statutory damages, or not award statutory damages at all, if the court determines two things. First, the court must determine that, based on the ordinary application of statutory and case law as it existed at the time of the request, a well-informed public official or records custodian would believe that the withholding of the records was not a failure to comply with an obligation under the Public Records Act. Second, the court must determine that a well-informed public official or records custodian would believe his or her actions served the public policy that underlies the authority asserted for withholding the information. The bill contains similar provisions related to both court costs and attorney’s fees. For court costs, the bill requires that a court award costs against the public office when it finds for the requesting person in a mandamus action. Similarly, the court is required to award attorney’s fees against the public office when it determines either of the following: 1) The public office or the person responsible for the public records failed to respond to the pub- Page 2 Government Relations Client Bulletin January 2007 lic records request in the time allowed under the This bill also requires the State Auditor’s office to audit public offices for compliance with the training Public Records Act; or requirements of the Public Records Act. 2) The public office or the person responsible for the public records promised to permit the request- Public Records Policy ing person to inspect or receive copies of the The new statutes require every public body to adopt public records requested within a specified pea Public Records Policy. The Attorney General’s ofriod of time but failed to fulfill that promise within fice is charged with the responsibility for drafting a that specified period of time. model Public Records Policy that public offices can In other cases, the award of attorney’s fees remains use as a sample when they draft policies of their discretionary. own. Once the policy is adopted, each public official must distribute the policy to each employee who The court may reduce the award of attorney’s fees or serves as the records custodian, records manager, or not award attorneys’ fees at all by making the same otherwise has custody of records of the office. The determinations required for the reduction of the award employees must, in turn, acknowledge receipt of the of statutory damages. policy. Training Requirement One of the major motivating factors driving the adoption of this legislation was a belief that some public officials are not well informed of their duties under the Public Records Act. As a result, House Bill 9 requires that every elected official (or his or her appropriate designee) receive three hours of training about the Public Records Act during every term of office. The purpose of this requirement is to ensure that at least one employee of each public office is educated appropriately about the official’s obligations under the Public Records Act. The training is to provide guidance that can be used by the office in developing and updating the public office’s Public Records Policy. The new law requires that the Attorney General develop, provide and certify training programs and seminars on the duty of public offices to provide access to public records. The Attorney General cannot charge a fee for attending training programs conducted by the Attorney General, but may contract with other entities to conduct the training programs. In such cases, the entity conducting the training programs may charge a reasonable amount for a registration fee, approved by the Attorney General, based on the actual necessary expenses associated with the training program. The law expressly allows public offices to use public funds to pay for the registration fees. Each public office must also create a poster that describes the Public Records Policy. The poster must be displayed in a conspicuous place in the public office and in all locations where the public office has branch offices. If the public office has a manual or handbook of its general policies and procedures for all employees, it must include a copy of its Public Records Policy in the handbook. Records Commissions The General Assembly also addressed a void in current law relating to oversight of records retention and destruction policies. Before House Bill 9, Ohio law established records commissions to oversee these policies for most, but not all, governmental bodies. House Bill 9 explicitly includes all political subdivisions in this requirement. Specifically, the General Assembly has created records commissions to include: county free public libraries; municipal free public libraries; township free public libraries; county library districts; regional library districts; special taxing districts; and local and joint vocational school districts. House Bill 9 also changes the composition of county records commissions. Previously, R.C. 149.38(A) required the president of the board of county commissioners to serve as chairperson of the county records commission. Under the new language, any Attorneys and county treasurers may count this traincounty commissioner may fill this role. ing toward their other continuing education requirements. Ohio Revised Code § 109.43(B), 321.46(B)(3)(c). Page 3 January 2007 Government Relations Client Bulletin Local Government Public Notice Under the prior enactment of Ohio’s conceal/carry Task Force Conceal/Carry Law law, the records kept by a sheriff relative to the issuance, renewal, suspension or revocation of a standard license or an emergency license to carry a concealed handgun were generally exempt from disclosure under the Public Records Act. The law provided, however, for a “journalist access exception.” Under this exception, upon receiving a written request from a “journalist,” the sheriff was required to disclose to the journalist the name, county of residence, and the date of birth for each person to whom the sheriff issued a standard license or a replacement standard license, renewed a standard license, or issued an emergency license or replacement temporary license. House Bill 9 makes changes to the journalist access exception. First, the amendments to the law make clear that the journalist may only request to view the information. The journalist is forbidden to copy the name, county of residence, or date of birth of the persons contained in the documents. Second, House Bill 9 expands the scope of the journalist access exception. The journalist is no longer limited to requesting information related to licenses that have been granted. Instead, the journalist may now also view the name, county of residence, and date of birth for each person for whom the sheriff has suspended or revoked a license to carry a concealed handgun. Non-codified law enacted in the bill creates the Local Government Public Notice Task Force, consisting of public officials representing all aspects of government, along with newspaper representatives. The Task Force will study ways to improve public notice requirements of public authorities, and make recommendations for statutory improvement. The legislation repeals House Bill 101, enacted earlier in the year. Conclusion House Bill 9 imposes new requirements on public bodies for training, policy drafting and responding to public records. It also raises the potential liability faced by public bodies when they wrongfully deny public records requests. It is important that public bodies become familiar with these new requirements so that they can fulfill their duties under the Public Records Act. For more information about this public records legislation, contact Warren I. Grody at 614.227.2332 or wgrody@bricker.com or Maria J. Armstrong at 614.227.8821 or marmstrong@bricker.com. Government Relations Group Faith M. Williams, Chair 614.227.2374 fwilliams@bricker.com Maria J. Armstrong 614.227.8821 marmstrong@bricker.com Warren I. Grody 614.227.2332 wgrody@bricker.com Luther L. Liggett, Jr. 614.227.2399 lliggett@bricker.com Sean A. Mentel 614.227.8892 smentel@bricker.com Miranda C. Motter 614.227.4810 mmotter@bricker.com Terrence O’Donnell 614.227.2345 todonnell@bricker.com Christopher N. Slagle 614.227.8826 cslagle@bricker.com Oyango A. Snell 614.227.2349 osnell@bricker.com Elisabeth A. Squeglia 614.227.2396 esqueglia@bricker.com Kurtis A. Tunnell 614.227.8837 ktunnell@bricker.com Page 4