Faced with such refusals, those seeking the records have no recourse but to go to court to compel government to comply with the law. This is an expensive undertaking, especially thanks to the Ohio legislature, which has so reduced legal-fee awards and penalties for government officials who illegally withhold records that plaintiffs cannot recoup the expense of their lawsuit.
In the latest misuse of “overly broad,” a state agency is denying phone and email records that are supplied readily by other government offices. NARAL Pro-Choice Ohio has asked the court to order the Ohio Department of Health to turn over two years’ worth of emails exchanged with addresses ending in “ohiolife.org” and a year of phone records involving two phone numbers associated with Ohio Right to Life.
NARAL suspects the state agency is working with special-interest groups to carry out policies that block access to abortion in Ohio. The reason for any request is beside the point. The records belong to the public; government officials are merely the custodians of those records.
Even Ohio Right to Life President Michael Gonidakis says the department should provide the records, telling Gongwer News Service that he and his staff “have nothing to hide.”
The health-department officials’ excuses — the request is “overly broad” and the agency lacks the ability to search for specific emails and phone records — amount to “a silly argument,” said Subodh Chandra, NARAL’s attorney.
The “overly broad” excuse has been used expansively since the high court’s 2008 ruling on a case that pitted Columbus attorney Jeffrey Glasgow against two state representatives — Shannon Jones, now a state senator, and Josh Mandel, now Ohio treasurer. Glasgow sought all their emails, text messages and other written correspondence over a period of several months.
The high court declared that request “overbroad.”
Ever since, overly broad has become “the phrase du jour,” lawyer Tim Smith, chair of the Media Law Center for Ethics and Access at Kent State University, has said.
For instance, Ohio House Republicans in 2011 initially employed “overly broad” in trying to keep secret from The Dispatch records that revealed a cozy relationship between some legislators and David Brennan, a major charter-school operator and campaign donor .
That year, this newspaper also ran into a “very broad and non-specific” denial from the city of Bellefontaine when it asked for specific records about then-Police Chief Brad Kunze, who was criticized for his handling of a triple-murder case.
Making things even worse, the “overly broad” exception is joined by other inventive court exceptions and legislative actions — such as carving out “executive privilege” and “trade secrets” — that have chiseled away access to public records.
These laws and rulings make it easier for government officials to hide mismanagement and corruption.
With the current lawsuit, the Ohio Supreme Court should seize this opportunity to defend open government and redress “overly broad” denials of the public right to know.