Yost: First year of Sunshine Audit Program a ‘small but significant success'; DeWine releases new Open Records Manual

From Gongwer In the Sunshine Audit initiative's first year, the state auditor's office investigated 16 complaints about public entities not releasing public records, Auditor Dave Yost announced Monday.

Launched last year during Sunshine Week, the program was designed to give citizens a way to appeal rejections of public record requests without having to go through a long legal process.

Auditor Yost

"We didn't have a whole lot of takers," Mr. Yost said at a Statehouse news conference, calling the initiative's first year a "small but significant success."

The office investigated 16 complaints and declined to investigate one because it was too complex, he said in presenting the report on the program's first year. The office only audits complaints that are expected to take fewer than five work hours for staff.

"While I don't think that there's necessarily huge noncompliance, I know that there's more than the 17 cases that we have here in our first year," Mr. Yost said. "I would hope that folks who feel like they've been wrongly denied public records would avail themselves of the mediation process that's in the attorney general's office and our compliance work in the Auditor's office."

For cases involving local government entities, the complainants are first required to attempt themediation process through the attorney general's office. For those involving state agencies, the complaints start with the auditor's office.

The program stirred some controversy when it was introduced last year. Some legislators said they didn't believe the state auditor had the authority to look at public records compliance, and inserted language into the budget bill (HB 64) to try to stop the program. The language was later removed. (See Gongwer Ohio Report, April 20, 2015)

Mr. Yost said he didn't know of any current efforts to stop the program, but he wants to make sure citizens have a venue to appeal rejections before they reach the judicial system.

"Frankly, I'm glad to step aside if there's a proper mechanism to resolve this," he said. "The reason we did this is because right now, if you get stonewalled as a citizen on a public records request, the only thing you can do is go get a lawyer and go to court. If you're not independently wealthy and have plenty of time to burn, you're out of luck."

"If the legislature develops a non-litigious process that is simple and is open to the average Joe who is just trying to find out what his government is up to, that's great," he added.

Of the 16 complaints investigated, eight were found to be compliant with the law in rejecting the requests, five were initially noncompliant with the law but released the records properly after auditors asked about it, and three were found to be noncompliant.

The noncompliance in these audits will show up on future financial audits, but the finding doesn't come with a lot of teeth, Auditor Yost said. The findings can be used in court and are given a presumption of validity, but none of the cases have led to legal action so far.

Those found noncompliant were the Department of Agriculture, which failed to respond to the auditor's request for its position on the complaint, according to the auditor's office; the City of Beachwood, which was found noncompliant because some redactions of the mayor's calendar were unsupported by law; and the Ohio Public Employees Retirement System, which Auditor Yost said wrongly cited attorney-client privilege.

Attorney-client privilege can only be cited in certain situations, not just when there's a lawyer in the room, he said. It can only be cited when the attorney has created a work product or has given legal advice.

"One of the frustrations I've had with our first year here is that it's difficult to establish whether attorney-client privilege is valid or not," he said.

Citizens can submit complaints and learn more about Sunshine Audits online.

New Yellow Book: Attorney General Mike DeWine also marked Sunshine Week by releasing the 2016 edition of his office's manual regarding public records laws, commonly known as the "Yellow Book."

"A substantial number of public records disputes arise because one of the parties involved is not aware of their obligations when a request is made," Mr. DeWine said in a statement. "The 'Yellow Book' is published to help requesters understand their rights and for government agencies to understand their duties under Ohio's Sunshine Laws."

The AG's office also announced training sessions on public records across the state, which are also available as an online video course.