Though NARAL has withdrawn its lawsuit against the department after receiving records of calls between the health department and anti-abortion group Ohio Right to Life, the latest development highlights anew the need to rein in public officials who deny records requests on the grounds that they are “overly broad.”
In the NARAL case, the organization was looking for evidence of undue influence on the part of Ohio Right to Life and other anti-abortion groups with the Ohio Department of Health, after new state restrictions led to the closing of some abortion clinics. Leaders of Ohio Right to Life didn’t deny that they were in regular contact with the department. Michael Gonidakis, president of the organization, himself said that the health department should turn over the records requested by NARAL, since he had and his staff had nothing to hide.
In addition to being on the wrong side of public-records law in the state, the health department’s refusal to turn over records led to more waste of public resources. It expended time and manpower in responding to NARAL’s suit, and in dealing with hundreds of duplicate requests that were made after the group put a link on its website encouraging supporters to make the same request. At least NARAL had the resources to press for the records through the legal system. Many individuals and smaller media outlets simply can’t afford that sort of fight.
Open-records watchdogs have noted in recent years that “overly broad” in itself has become an overly broad pretense under which public agencies look to deny requests for what should be public documents. This has been enabled by several Ohio Supreme Court decisions that have deemed requests overly broad and allowed custodians of public records to use the term as an excuse.
David Marburger, a Cleveland lawyer who specializes in government-access law, said in an interview with The Dispatch last year that the Ohio Supreme Court “created its own sort of law in governing what makes a records request appropriate” with these “overly broad” rulings. “It has created this sense of entitlement ... that (government officials) don’t have to provide anything to you if they think they can claim with a straight face that court precedents allow them to say the request is too broad,” he said.
The main problem with allowing officials to term requests “too broad” is that it effectively shuts down the ability of the public and the press to act as watchdogs and root out possible wrongdoing. This was the original intent of Ohio’s Public Records Act, which was considered a model for other states when it was passed more than 50 years ago. Since then it has been chipped away by legislative carve-outs and judicial decisions.
Requiring detailed and narrow requests “thwarts the Public Record Act’s fundamental purpose: nothing in the Act requires a requester to know a record actually exists before requiring it,” argued Cleveland lawyer Subodh Chandra in arguing on NARAL’s behalf in it lawsuit. “Indeed, the existence of a record may be the very thing the requester is attempting to discover through the request.”