There’s bad news and good news on the open-government front in Ohio.
A recently released survey of open- government cases decided by the Supreme Court of Ohio between July 2010 and July 2015 found that of 32 definitive rulings, 12 favored openness and 20 favored restricting or denying access.
The report was compiled by the Ohio Coalition for Open Government, a nonprofit established by the Ohio Newspapers Foundation to focus on open government and public-access issues in the state.
There was a sizeable difference between justices on the percentage of votes against openness, but every sitting justice voted against transparency more often than for it in the OCOG analysis. Only one justice, Eric Brown, who sat on the court for part of 2010, hit the 50 percent mark, voting 2-2 on four cases.
Justice Terrence O’Donnell voted for openness only 23 percent of the time in 30 cases covered by the study. Justice Judith French favored openness 40 percent of the time on the 15 cases she heard. Between French and O’Donnell are Chief Justice Maureen O’Connor and Paul E. Pfeifer, both 38 percent; Sharon L. Kennedy, 36 percent; William M. O’Neill, 35 percent; and Judith Ann Lanzinger, 31 percent.
Those are disturbing statistics, but the Supreme Court had a response. It said the court’s role is to “interpret and apply the public-records access laws passed by the General Assembly [and it] … is not free to use cases to legislate its own views on open government.”
That’s true to a point. But the fact that some justices vote against openness considerably more than others shows that justices are capable of reading the law in different ways. Unfortunately, the OCOG study shows that all the justices read the law well over half the time in ways that help keep information from the public.
That may be an indictment of how the court reads the law or it could be an indictment of the General Assembly and how it has written – and rewritten – public records and open-meetings law.
GOLDEN AGE IS GONE
Ohio has clearly passed its Golden Age of open government, which we’d say began in the 1960s and blossomed with passage of strong public records and open-meetings legislation in the mid-1970s. Exceptions to openness were relatively few and were clearly spelled out. When in doubt, a public employee or official was to err on the side of openness.
It has been this newspaper’s experience that when there was a question of openness to debate, public officials and employees took the opposite tact. What they did and how they decided to do it was their business, and the records they were required to keep were their records – not the public’s. They held that position until they faced the possibility of losing in court – or until they lost in court and had to pay a price.
Had the Supreme Court used the standard of “err on the side of openness” in its deliberations, we’d suggest that even Justice O’Donnell would have gotten it right at least 50 percent of the time.
Not that the General Assembly hasn’t made it easier over the years for the Supreme Court to find ways of siding with government secrecy over the public’s right to know. Amendments to the “Sunshine Law” have added exception after exception to what is or isn’t a public record – from charter school financial records, to concealed-carry permit information, to virtually anything that JobsOhio, a huge government entity, chooses to do behind closed doors.
But whether it is a matter of how Ohio’s elected representatives write the law or how elected Supreme Court justices interpret the law (or a combination of both), the people of the state are losing too many battles for openness. Often those battles are being fought by the press, and too often some people see that as the press acting in its own self- interest rather than fighting for the kind of government that benefits the people over politicians and bureaucrats. And many times, the battles are being fought by private citizens, at great personal expense, both in time and money.
These battles represent a swinging pendulum. And in recent years, it has swung into an arch of government secrecy.
We began this piece by saying there was bad news and good on the open government front, and so here’s the good news. Dennis Hetzel, executive director of the Ohio Newspaper Association, reports a recent string of court decisions that favor open government. That’s good, but a string does not make a trend. It is unlikely that the pendulum will swing back in the public’s favor until voters see government secrecy an inimical to their own best interests and begin voting accordingly.