ECOT wants $60M ruling tossed, claims state board met illegally

From The Columbus Dispatch In its latest attempt to avoid repaying $60 million to the state, ECOT today accused the state Board of Education of illegally meeting in secret to deliberate the matter prior to voting Monday to issue the order.

The Electronic Classroom of Tomorrow filed a lawsuit in Franklin County Common Pleas Court accusing the board of violating Ohio’s Open Meeting Act. ECOT asked the court to toss the order, impose a $500 fine against the board and pay its attorney fees.

“Simply put, it is clear that a quorum of the Board of Education unlawfully deliberated and substantively discussed the ECOT resolution in closed session(s) and/or in serial communications designed to avoid the need for public discussion — a requirement under the Open Meetings Act,” ECOT attorney Marion H. Little wrote in the 16-page complaint.

Specifically, the complaint alleged Department of Education legal counsel Diane Lease “advised and directed” the board prior to the meeting, and board President Tess Elshoff “and perhaps others, impermissibly polled” board members.

While “isolated one-on-one conversations between individual members” are legal, a “round robin” series of repeated communications with individual boards would be illegal under Ohio’s Sunshine Law, according to Attorney General Mike DeWine’s open government guide.

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New ruling: Public records appeals process does not cover court records

From The Columbus Dispatch

To the chagrin of transparency advocates, a new appeals process to permit Ohioans to pry loose potentially illegally withheld public records does not apply to court records, an Ohio Court of Claims judge ruled.

The decision by Judge Patrick M. McGrath was issued Friday in a case filed by The Dispatch seeking to unseal records in the divorce case of state Sen. Kris Jordan and Delaware County Recorder Melissa Jordan.

Michael Brady, a visiting judge in Delaware County Common Pleas Court, unsealed the case in response to The Dispatch’s request a day before he was formally served with the newspaper’s Court of Claims complaint.

The Dispatch contended that the sealing of the case violated Ohio’s public records law and court rules, which say court records are presumed open and only can be sealed with legal justification. The entry sealing the Jordan case contained no such justification.

McGrath dismissed the complaint, ruling that the courts have controlled their own records since mid-2009 and that the law creating the appeals process only permits appeals of public records denials by executive-level agencies.

“This special statutory proceeding does not confer authority to hear disputes regarding denial of access to court records,” which require the filing of a mandamus action in other courts, he wrote.

The law creating the low-cost, prompt public-records appeals process was authored last year by then-Senate President Keith Faber, R-Lima, now a state representative.

Faber said Monday it “certainly was not our intent” to prevent the appeals mechanism from also handling disputes over court records. “Why would the Court of Claims process not be a good way to appeal (denial of court records)?” he asked.

Faber said he understands the need for separation of powers between the legislative and judicial branches, but noted, “This should apply to all government disputes where it makes sense and certainly if the court is saying the statute doesn’t apply, they ought to enact a similar appeals process” for court records.

Dennis Hetzel, executive director of the Ohio News Media Association and president of the Ohio Coalition for Open Government, agreed with Faber.

“It’s in the public interest of this appeals process for it to also apply to court records. I want to see if there is an opportunity to clarify this statue,” Hetzel said.

Ohio Supreme Court spokesman Bret Crow said in a statement, “The court believes appropriate processes are in place for access to records maintained by the judicial branch, some of which are highly sensitive. However, we are always open to suggestions about how we might improve access to public documents.”

Appeals court blocks Tensing trial judge's media restrictions

From The Enquirer A state appeals court has blocked a series of orders that restricted media access issued by the judge overseeing Ray Tensing’s retrial.

In a ruling issued Friday, the First District Court of Appeals said Judge Leslie Ghiz could not enforce the restrictions without a hearing in open court.

“In the absence of an evidentiary hearing and particularized findings,” the appeals court said, “the restrictions imposed by (Ghiz) are contrary to law.”

Among Ghiz’s orders was that a total of five reporters – including a videographer and photographer – could be in the courtroom during the trial. With at least a dozen media outlets covering the case – including the Associated Press, Reuters and The New Yorker magazine – that meant several outlets every day would not be in the courtroom.

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Three Ohio colleges and universities post spending data on OhioCheckbook.com

From The Plain Dealer Three Ohio colleges and universities put their expenditures on OhioCheckbook.com on Tuesday -- one year after state Treasurer Josh Mandel announced five schools would join the effort.

Mandel said Tuesday the schools' differing accounting systems and student privacy laws and policies made preparing expenditure data more time-consuming than for cities, villages and other entities that use OhioCheckbook.com.

"It was more difficult, not because universities were giving us a hard time but because of the nature of how the finances are structured," Mandel said during a Tuesday news conference.

Three schools' data went live Tuesday: Bowling Green State University, Central State University and Central Ohio Technical College. Miami and Wright State universities are expected to go online in June.

See the expenditures on OhioCheckbook.com

The data excludes student-identifying information, which has been a challenge given many students are also school employees, said Bruce Johnson, president of the Inter-University Council of Ohio. The colleges and universities also use a variety of accounting software systems, and information has to be extracted differently from each in order to display properly on OhioCheckbook.com.

Mandel's office launched OhioCheckbook.com in December 2014 with state expenditures. In 2015, local governments and school districts were invited to post their expenses to the website.

The treasurer's office is footing the bill for local governments and universities with savings from Mandel's term in office. Mandel's office plans to spend about $1.3 million a year on the program, through a contract with California-company OpenGov.

While the state expenditures lag behind about a month, the college spending posted Tuesday goes only through June 2015 or June 2016. Mandel said he can't force local entities to upload spending data, but they're encouraged to do so as often as possible.

Canton Repository editorial: Don't turn out grow light, err on side of transparency

Canton Repository Editorial When Ohio’s new medical marijuana law officially took effect in September, we urged local governments to prepare for the onslaught of potential processing facilities, dispensaries and other marijuana-related businesses that could crop up in their communities. We called for local leaders to give “lengthy and thoughtful” deliberation about the potential benefits and consequences of such businesses. We’ve seen communities like Lake and Plain townships, North Canton and Louisville do just that.

After a report out of Canal Fulton that an “unnamed” individual has pitched the city on being home to a medical marijuana processing facility, perhaps that message bears repeating.

More troubling than City Council members apparently being caught off guard by the prospect was Mayor Joe Schultz’s proposal that council members could meet in pairs with the unnamed developer to avoid Ohio’s open meetings laws. Schultz essentially said that by meeting in smaller groups in which no quorum of council exists, members could meet privately without telling the public or even inviting the public.

With all due respect to the mayor, that’s not how things are supposed to work. Not only does his suggestion fly in the face of the spirit of the state’s open meetings laws, we don’t believe it’s a legal option. Per state law, “a public body may not circumvent the requirements of the Act by setting up back-to-back meetings of less than a majority of its members, with the same topics of public business discussed at each.” They are what’s known as “round robin” or “serial” meetings, and they are illegal.

As Canton Repository correspondent Joan Porter reported, “Most council members were willing to do so (meet) and noted the benefits of medical marijuana, increased revenue from city income taxes, strict regulations regarding a marijuana processing plant and that the plant was not a retail outlet.”

State lawmakers made the right call last year when they legalized medical marijuana while placing tight regulations on all aspects of it. Thousands of Ohioans suffering from cancer, epilepsy, post-traumatic stress disorder and other qualifying medical issues might find relief through the use of medical marijuana once the laws are implemented fully.

This will result in economic benefits for the state and for some communities. Though the state will control who receives medical marijuana licenses, local governments retain control over whether such businesses will be permitted to operate in their jurisdictions. Such decision-making should be made with the community’s interests in mind. Discussions with “unnamed” individuals about potential business opportunities should be held in the open, for all to see — not behind closed doors, as Canal Fulton’s mayor has suggested.

Canal Fulton Law Director Scott Fellmeth is on the right track. He urged council to wait until a proposal has been made to meet on the issue. Such a proposal, and such a meeting, should be open to the public.

North Canton continues live stream legislation

From The Canton Repository After some debate, city council moved forward with legislation that would require meetings of the Planning Commission and the Zoning and Building Standards Board of Appeals to be live streamed and have audio and video recorded digitally.

Council passed the first reading of two related pieces of legislation, one for each board, that would change how those meetings are recorded. Currently, the clerk of those boards creates a verbatim transcript of the meeting. The legislation would have the clerk create a meeting summary and in addition to the digital recording, have a back-up recorded on cassette tape.

Much of the debate centered around eliminating the verbatim transcript in lieu of a meeting summary.

There is value to meetings being recorded in a verbatim transcript, said Councilman Doug Foltz, Ward One, adding that he’s in favor of live-streaming and digital recording alongside the transcript.

“It’s historical and I don’t want to lose that.”

He suggested looking at other options, such as working with the schools, for transcription if the work was too much for one clerk.

The legislation looks at the best way to record meetings in the future, not the past, said Councilman Mark Cerreta, At-Large. The recorded meetings could be transcribed in the future using the recordings if someone wanted a transcription, he said.

Council also debated how long those records should be kept.

Council passed the first of three readings of those ordinances Monday. Foltz voted no on both. The legislation will have three readings before becoming law.

Ohio political commentators sue over online harassment ban

From The Associated Press A group of liberal and conservative online political commentators in Ohio has filed a constitutional challenge to the state's recently enacted law against internet harassment.

A federal lawsuit filed Tuesday in U.S. District Court in Cleveland alleges a prohibition against knowingly posting text or audio statements or images on a website "for the purpose of abusing... or harassing another person" violates the commentators' constitutional rights to free speech and expression.

The plaintiffs in the suit are the liberal blog Plunderbund; the Portage County Tea Party, represented by well-known GOP detractor Tom Zawistowski; and John Spinelli, a freelance political reporter.

All contend they or their organizations "routinely engage" in protected speech that "may be considered provocative" and the law now subjects them to "a credible risk of prosecution."

At issue is a prohibition included in a bill expanding crimes of menacing and telecommunications harassment that unanimously cleared both chambers of Ohio's Legislature last session. Republican Gov. John Kasich signed it, and it became law Aug. 16.

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Dispatch editorial: Open the shades on charter spending

Editorial from the Columbus Dispatch No function of state government is more important than its constitutional obligation to “secure a thorough and efficient system of common schools throughout the state.” Education is the bedrock of democracy. That is why the Ohio Constitution, since 1851, has obligated the state to provide an education to each of its citizens.

How thoroughly and how efficiently the state fulfills this mandate should concern every Ohioan, every year, every generation.

But Ohioans’ ability to judge the state’s performance is threatened by state lawmakers’ willingness to hide from public view how the charter-school industry spends a sizable portion of taxpayer dollars.

In an era of privatization of much of primary and secondary education, taxpayers should insist that state lawmakers provide complete transparency of the expenditure of public funds for education.

State Rep. David J. Leland, D-Columbus, has introduced legislation to accomplish this goal. In fewer than 100 words, the bill declares “funds that the department of education pays to a community (charter) school or nonpublic school . . . are public funds and shall be subject to the same requirements related to permissible expenditures and audit by the auditor of state as public funds allocated to school districts.

“If a community school uses public funds to pay for services of an entity to manage the daily operations of that school or to provide programmatic oversight and support of that school, those funds maintain their status as public funds upon transfer.”

In recent years, Ohio earned an unwelcome reputation for having the nation’s worst oversight of the charter-school industry. No surprise, then, that Ohio has had some of the nation’s worst-performing charter schools.

Responding to an avalanche of criticism, including from the operators of good charters, in October 2015 the General Assembly passed legislation (House Bill 2) to address some of the problems.

That legislation requires management companies receiving more than 20 percent of a school’s annual revenues to provide an accounting of expenses in 19 categories, such as aggregate wages, school supplies and transportation.

However, the bill didn’t go far enough. Why allow expenditures falling below a 20 percent threshold to escape scrutiny? There is no legitimate reason to prevent the taxpaying public from tracking each and every dollar it spends for education.

Upon introducing his bill, Leland correctly stated: “Ohio taxpayers deserve a full and complete accounting for every one of their hard-earned dollars invested in education, whether the money is directed to public school districts or charter schools.

“Charter schools and their management companies shouldn’t be able to hide their spending of public funds behind closed doors. This bill will close a loophole in state law and help ensure charter schools in Ohio operate in a transparent, accountable manner.”

Honest, well-performing charters and nonpublic schools have nothing to fear from transparent bookkeeping. In fact, operators of many of Ohio’s best-performing charters have urged state lawmakers to insist on full transparency. Failure to do so creates a cloud of suspicion over all of Ohio’s charter schools.

Ohio was a pioneer in adopting a constitutional mandate guaranteeing an education to each of its citizens. Many states followed Ohio’s lead, adopting similar language in their constitutions.

In the 21st century, unfortunately, Ohio has been the opposite — a laggard — in guaranteeing that its citizens get a full and complete accounting for that education.

Analysis of Ohio Supreme Court cases shows increased support for open government issues

The Ohio Supreme Court issued rulings more favorable to the position of open government advocates during the past two years than during the previous five years, according to an analysis by the Ohio Coalition for Open Government (OCOG). During the 2015 and 2016 calendar years, the Court issued 13 rulings which OCOG considered supportive of open government, open meeting, and sunshine law issues. These rulings including high-profile cases such as deciding that police dash-cam videos are public records along with more routine rulings such as admonishing the city of South Euclid for not releasing requested records to citizens.

During that same period, the Court issued seven rulings that OCOG scored as unfavorable to open government interests, supporting the governmental agency seeking to deny access to a record or a meeting.

Court officials correctly point out that there are many factors that go into rulings, including the facts of the cases, quality of the arguments and the laws the justices must interpret.  OCOG also stresses that when it evaluates case outcomes as “unfavorable” to open government, that does not mean that the court ruled incorrectly.

Still, the last two years contrasted with the 24 rulings issued from 2010 through July 2015, when OCOG first produced the spreadsheet. During that period, 24 of 36 cases considered had results in favor of the government position.

“The database is serving the purpose intended, particularly as it grows,” said Dennis Hetzel, OCOG president. “First of all, this is the only place to see all these cases in one spot.  We recognize that some of our scoring is open to interpretation, particularly with complex cases, but that’s a good basis for the start of a discussion.

“Still, for whatever reason – and it just may be that lawyers are bringing better cases and arguing them better – the current trend is very encouraging. Three years ago, we were very concerned that the pendulum of court decisions had swung too far in favor of secrecy.”

For the original analysis, released in 2015, the Ohio Coalition for Open Government built a spreadsheet to track court rulings and individual justice votes in every open government case the Court had handled in the preceding five years.

In the new analysis 18 open government rulings were examined from August 2015 through December 2016. These rulings were added to the previous 44 examined from July 2010 to July 2015. The final OCOG analysis excluded routine prisoner appeals and 11 cases in which the opinions were too mixed to be fairly scored one way or the other.

The six-year analysis also includes comparisons between justices to compare the frequency with which each justice votes for and against open government.

Among current justices, Justice Terrence O’Donnell was, by far, the justice least likely to decide in favor of open government, doing so only 27 percent of the time. Justice Judith French had the best pro-access voting record among incumbent justices, voting in favor of open government 55 percent of the time, or 28 percent more often than O’Donnell.

The OCOG analysis was compiled using the WestLaw website to identify cases involving open government cases handled by the Ohio Supreme Court since 2010.

To view the OCOG spreadsheet and other supporting materials, go to www.ohioopengov.com/supremecourt.

“The database also is working as intended in terms of the rulings of individual justices,” Hetzel said. “Even though they hear the same arguments and read the same pleadings, justices vary considerably in how they vote on these cases. This gives the public a window into how they view the law.”

The analysis of Ohio Supreme Court cases is featured in the spring 2017 issue of OCOG’s Open Government Report, which can be downloaded at www.ohioopengov.com/opengovreport.

Contact: Dennis Hetzel Executive Director Ohio News Media Association President Ohio Coalition for Open Government 614-486-6677 1335 Dublin Road, Suite 216B Columbus, OH 43215 dhetzel@ohionews.org

Delaware County power couple’s divorce case is sealed; is that legal?

From The Columbus Dispatch State Sen. Kris Jordan and Delaware County Recorder Melissa Jordan are embroiled in a not-so-secret divorce.

What is secret, however, is every legal filing made in their apparently contentious case in Delaware County Common Pleas Court. That includes the judge’s order making the entire court file confidential.

The judge’s approval of the estranged Republican couple’s joint request to seal their case from public view appears contrary to an Ohio Supreme Court ruling.

Mrs. Jordan filed for divorce in June 2016, with the publicly available docket reflecting filings that appear to show deep-rooted disagreement over their children and finances. A trial is set to begin June 26.

The docket shows a Dec. 22 order sealing the case after the Jordans and their lawyers submitted an agreement to make it secret.

Oddly, though, the entry did not appear on the online docket until sometime after April 1. Earlier examinations of the docket by The Dispatch did not show the sealing order.

Citing Ohio’s public-records law and court rules, The Dispatch submitted an April 28 written request to inspect the Jordans’ divorce case file. But the newspaper’s request was denied by clerk’s employees, who cited the court order sealing the case.

The newspaper’s request was docketed as part of the case. Domestic Relations Court Administrator Denise Martin said she would bring the request to the attention of the visiting judge handling the case, Michael Brady, a retired probate and Juvenile Court judge from Logan County.

The Dispatch has received no response from the court. Martin did not return repeated telephone calls. Other attempts to reach Brady also were unsuccessful.

Barry Wolinetz, a Columbus lawyer representing Mr. Jordan, said that Judge Brady acted properly “in taking two public officials and shielding their kids ... I think the court is extremely concerned about the kids’ welfare. I think your curiosity may be piqued, but there’s not much scandal in this case and there’s not much good reading.”

Mrs. Jordan’s lawyer, Anthony Greco of Columbus, did not respond to requests for comment.

In 2011, deputies were called to the Jordans’ Powell-area home for a domestic dispute. A prosecutor said probable cause existed to charge Mr. Jordan with assault, domestic violence and disorderly conduct, but Mrs. Jordan refused to press charges.

Legal authority to seal a divorce case because the parties are public officials and children are involved doesn’t appear to exist.

In a 2004 case involving the sealing of the Adams County divorce of former state Rep. Danny Bubp, the Ohio Supreme Court ruled that information about the case could not be withheld from the public.

Neither Bubp, who now is a judge in Brown County, nor the judge who sealed the case, asserted that the case records were exempt from release under public-records laws, the justices ruled.

“Any record used by a court to render a decision is a record subject” to release under public-records laws, the court said in citing a ruling made earlier in 2004.

Debate over livestreaming meetings splits Akron City Council

From The Akron Beacon Journal A divided Akron City Council will air its public meetings as they unfold.

With dissenting voices, City Council passed legislation (May 1) that amends a contract with WhiteSpace Creative, the Akron firm that manages the city’s official website and records council meetings, then uploads them the next day. The legislation requires WhiteSpace to livestream the meetings instead, a process that gives anyone with an internet connection access in real time.

Proponents of the move say it opens up government to the voters, residents and taxpayers. Even those on the council who admittedly reject social media or lack technological skills have taken note that the public expects convenient access. It’s time to get with the times, they argue.

“The fact is, people aren’t going to come down here to” City Hall to see meetings, said at-large Councilwoman Veronica Sims. “But when you have 200, 400, 1,800 people looking through livestreaming, I don’t really know how much longer we can drag our feet.”

Sims supported the measure, which was first offered weeks ago by Councilwoman Tara Mosley-Samples.

... Despite the apparent interest, President Marilyn Keith of Ward 8, President Pro Tem Donnie Kammer of Ward 7, Bob Hoch of Ward 6 and Mike Freeman of Ward 9 voted against the livestream bill.

None said they want to keep the meetings hidden. To the contrary, each voiced support of open and accessible government that works for the people. But for various reasons, they objected to the livestream plan.

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State improperly withheld records on troopers sent to protest

From The Columbus Dispatch The Ohio Department of Public Safety improperly withheld public records concerning the deployment of 37 troopers to a North Dakota pipeline protest, a court expert ruled (in late April).

A special master in the Ohio Court of Claims found that state officials improperly cited privacy laws and security exemptions in refusing to release records to The Cincinnati Enquirer.

Records identifying the deployed state troopers should have been turned over once the troopers returned to Ohio and most sections of a multi-state, mutual-aid agreement also should have been released, the special master ruled.

State lawyers had argued that the release of the information would imperil the troopers’ personal safety amid protester threats accompanying the clash-filled Dakota Access Pipeline protest.

Special Master Jeffrey Clark rejected that premise, ruling the troopers’ names could be shielded during their deployment Oct. 30 to Nov. 15, but should later have been released.

“DPS presents little or no evidence of credible current threats directed against the troopers or their families” in retaliation for their duties near the Standing Rock Sioux Reservation, Clark wrote.

The Dispatch also unsuccessfully sought records concerning the troopers’ work in North Dakota and, after its request was denied, dropped its demand for the troopers’ names. The amended request still was denied.

Clark also found that the state improperly failed to release most sections of the Emergency Management Assistance Compact, the agreement through which states can seek assistance from one another.

Most of the document contains only “administrative and billing information” and has been released by at least six other states, he wrote. However, sections disclosing the equipment used by police can be withheld to help protect the officers’ safety, Clark ruled.

A State Highway Patrol spokesman said the agency does not comment on pending litigation. Jack Greiner, a Cincinnati lawyer representing The Enquirer, lamented the state’s “hostility to government transparency” after saying he learned that the state plans to object to Clark’s ruling. A Court of Claims judge will make the final ruling on Clark’s recommendations.

The Dispatch requested records showing troopers’ use of force against Dakota Access Pipeline protesters. One video showed a trooper using pepper spray. Citing security concerns, the patrol refused to release the use-of-force reports. But it provided a record indicating the use of force was reviewed and found to be appropriate. A Grove City woman who unsuccessfully requested the same records has since filed a public-records complaint with the Ohio Court of Claims.

In Clark’s ruling, The Enquirer lost its bid for correspondence and emails concerning the dispatching of the troopers to the pipeline protest because its request was found ambiguous and overly broad.

Ohio high court wants to see full autopsies from 8 slayings

From the AP The Ohio Supreme Court wants to see unredacted autopsy reports from eight slayings in one family as justices consider media lawsuits seeking access to those full reports from the year-old, unsolved case.

The court on Wednesday ordered the Pike County coroner to submit the reports within two weeks for justices to review outside of public view. The court said it would receive the autopsies under seal but won't consider additional materials about why authorities want to continue withholding some of that information.

The decision came days before the one-year mark of when seven adults and a teenage boy from the Rhoden family were found shot to death at four homes near Piketon, in rural southern Ohio, on April 22.

The Columbus Dispatch and The Cincinnati Enquirer separately sued for access to the full final autopsies, but authorities want to shield the information, arguing that its release could compromise the investigation. Pike County Coroner David Kessler also has noted the victims' relatives raised concerns about sharing details of their loved ones' deaths.

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Want to track your tax dollars through Facebook Live? Akron City Council debates livestreaming meetings

From The Akron Beacon Journal Residents who want to see or hear how their taxes are going to be spent should follow Councilwoman Tara Mosley-Samples on Facebook.

Right now, she’s the only one in Akron consistently broadcasting what the council does every Monday. And, after demonstrating that it costs nothing and requires little more than pointing a smartphone at the action, her proposal to hand over the job to a marketing company already hired by the council might not fly.

Mosley-Samples introduced legislation Monday that would add livestreaming of public meetings to a $57,000-per-year contract with WhiteSpace Creative.

Bob Zajac, who runs the public relations company in Akron, is up to the task. He and an employee already attend the meetings. All they would need to do is set up a free Facebook account (City Council already has a Twitter handle) and click the “live” button when the app is open on any smart device with a camera.

Zajac would charge nothing more. The contract already requires him to “attend and record video of weekly City Council meetings and post the video.” What’s holding up some on the council, however, is Zajac’s request for a wall-mounted camera that he could swivel remotely to capture the action. Plus, “the city would have to hard-wire this chamber. I would not want to risk going live with Wi-Fi,” he told the council.

His concern: If the connection fails, so goes the footage.

“I’ve never had a problem with the Wi-Fi,” said Mosley-Samples, who livestreams from her chair.

Having already shopped around, Zajac said it would cost $10,000 to $15,000 to install wiring and the camera, and two television monitors that could display to the public what council members are seeing on their city-issued iPads.

Beyond the equipment, “our costs would not be any different,” said Zajac.

Actually, the costs may be nothing. Mosley-Samples proved this when she asked two members of her church to livestream last Monday’s activity using a smartphone and a tablet, demonstrating that it can be done for free and without interruption.

“I don’t understand how this can’t cost anything,” said Councilman Donnie Kammer, who agreed that “transparency is good government.” Still, he cited policeman without Tasers, crumbling cruisers and broken city elevators. “I’m not comfortable spending any more money on the third floor [of City Hall] or any other floor until we take care of other parts of the city.”

Worth it?

The council signs off on nearly $1 billion in public spending each year, a little at a time each Monday — except holidays — on the third floor of City Hall (166 S. High St.).

Residents show up at 7 p.m. when legislation is bundled and approved, often with little or no discussion. Often, attendees take turns complaining on a microphone for three minutes or less about what the council has or hasn’t done.

Rarely anyone shows up at 1:30 p.m. when most people are at work. But these afternoon sessions hold the deliberative discussions behind the sweeping up-or-down votes taken later that night.

This Monday, as the sixth and final committee met to discuss Mosley-Samples’ live­streaming proposal, only four people sat in the audience: Zajac, his WhiteSpace employee and two reporters.

A reporter heard Councilman Bob Hoch say, “I can’t imagine that we’re going to have a lot of people watching a Monday afternoon meeting.”

Mosley-Samples explained that her video post last week garnered 219 views while the meeting was still happening and 953 more afterward. More might watch it if uploaded each week to YouTube and shared in a link on Twitter, Mosley-Samples said after explaining to some colleagues about how social media platforms work in tandem to communicate and cross-brand content.

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Nearly all Ed FitzGerald incident reports exempt from public records law, Cuyahoga County says

From The Plain Dealer Cuyahoga County officials said Wednesday they were largely within the law to keep secret incident reports involving former county executive and one-time Democratic gubernatorial candidate Ed FitzGerald.

Nineteen pages of incident reports released as part of an Ohio Supreme Court decision against the county were a fraction of the 550 pages of records county officials say were reviewed by the court.

The court found the county sheriff's office illegally withheld eight incident reports in response to a 2015 public records request.

But county officials counted the decision as a win.

"The county prevailed with regard to the vast majority of the challenged documents," the county said in a statement from spokeswoman Mary Louise Madigan. "The rest remain protected under seal because they document real threats and investigations. The court recognized that the county properly withheld those reports because our principal protection unit determined there were threats and we take threats very seriously."

Attorneys for plaintiff Mark Miller did not immediately return a phone call seeking comment Wednesday. The court awarded Miller court costs and attorney fees in an amount yet to be determined.

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Upper Arlington releases previously withheld meeting recording

From The Columbus Dispatch The Upper Arlington City Council has released a recording that’s the subject of a public-records lawsuit, reversing an earlier decision to withhold it. (Download file here: 253MB)

Upper Arlington resident Robert Foulk, who filed the lawsuit Feb. 6, called the move a “victory for the concept of open government.”

At issue is a recording of a nearly-five-hour public council retreat Jan. 10 in Lewis Center. Foulk requested a copy of the recording and received it, but city officials withheld about 14 minutes because it included the city’s attorney discussing legal issues.

A full recording of the meeting was posted on the city’s website Tuesday afternoon, following a Monday night council vote.

The once-redacted portion occurs approximately 2 hours and 45 minutes into the meeting, Upper Arlington spokeswoman Emma Speight said.

It includes a conversation about the city’s February decision to outsource its 911 dispatching services to the Dublin-based Northwest Regional Emergency Communications Center.

The city charter gives City Manager Ted Staton the authority to approve the move himself, Hummer said in the recording. The discussion concerned whether council intended to approve an ordinance anyway. They eventually did.

Staton’s authority means the public cannot overturn the controversial decision with a ballot initiative or referendum, according to the conversation.

Earlier this year, city officials said that conversation was exempt from disclosure under state law. Council members said Monday that they believe that is still the case, but by waiving attorney-client privilege, the city could move forward and avoid accruing further legal expenses. A Dispatch reporter submitted a public records request Tuesday asking how much the city has spent defending the case.

Two council members, Debbie Johnson and Brendan King, voted against releasing the recording. Member David DeCapua was absent.

The audio posted on the city website doesn’t specify which portions were once redacted. The edited audio file has been removed.

Foulk and his attorney are pushing for the once-redacted portion of the audio to be posted separately online. Foulk says it’s an “undue burden” to force residents to listen to the entire recording and compare it to the redacted version in order to decipher which parts were once omitted.

The city has no plans to do so, Speight said.

Some records relating to former county executive Edward FitzGerald ordered released

From Ohio Court News The Ohio Supreme Court ruled today that nine incident reports relating to former Cuyahoga County Executive Edward FitzGerald from May 2012 to August 2014 are public records and must be released to the requestor.

In a unanimous per curiam opinion, the Court held that the Cuyahoga County Sheriff’s Office incorrectly determined the reports were “security records” that were exempt from the Ohio Public Records Act, R.C. 149.43.

Case Begins with Former Sheriff Mark W. Miller requested that Cuyahoga County Sheriff Frank Bova provide him with “all offense or incident reports in the possession, custody or control” of the sheriff’s office in which FitzGerald was identified as “the reportee, complainant, or victim.”

Judy Blatnik, the sheriff’s public records manager, denied the request asserting the records were security records and not subject to disclosure.

Miller then filed an action in the Court against Bova and Blatnik seeking a writ of mandamus compelling the sheriff’s office to turn over the requested reports. Subsequently, Bova was succeeded by Sheriff Clifford Pinkney, and today’s ruling applies to Pinkney’s office.

Incident Reports Are Public Records The Court explained that incident reports initiate criminal investigations but are not part of the investigation and that routine offense and incident reports are public records and typically subject to immediate release upon request.

The Court further explained that R.C. 149.433(A)(1) defines a security record as “ ‘[a]ny record that contains information directly used for protecting or maintaining the security of a public office against attack, interference, or sabotage’ ” and that a security record is not a public record and is not subject to disclosure pursuant to the Public Records Act.

After conducting an in camera inspection of the records in the possession of the sheriff’s office that are responsive to Miller’s request, the Court determined that among those records are nine incident reports that are not security records and that are subject to release with the redaction of exempt information. The Court therefore granted the writ in part and denied it in part and attached the nine redacted reports to its opinion as an appendix.  The Court also awarded Miller costs and reasonable attorney fees to be determined after he files an itemized application.

2015-0612. State ex rel. Miller v. Pinkney, Slip Opinion No. 2017-Ohio-1335.

Beacon Journal editorial against bill to close accident report information

Akron Beacon Journal editorial While the efforts often seem well-meaning on the surface, carving out exemptions to the state’s open records law is far too often based on imagined possibilities rather than solid evidence about the need to withhold information from the public. That is clearly the case with a misguided bill under consideration in the Ohio House. It would expand public records disclosure exemptions to include information on minors involved in school-related traffic crashes.

Out of bounds under the bill would be names, addresses, contact information or other personal details of minors involved in a crash involving a school vehicle.

Among other arguments, proponents point to state and federal laws that protect student privacy. In effect, they view a school bus or vehicle as an extension of the classroom. On closer examination, such a rationale falls apart.

Student privacy laws already allow directory information, such as names and addresses, to be released, and records of crashes are kept by law enforcement agencies, not schools.

Dennis Hetzel, the executive director of the Ohio News Media Association, pointed to the lack of evidence of abuse by pedophiles or identity thieves. What must be carefully balanced, he effectively countered, is the public’s right to know details about school bus crashes, a serious public safety issue.

Good journalism, Hetzel reminded, means getting access to information to tell a story with maximum impact. Watering down access to crash reports involving school vehicles would create obstacles to that important mission, not to mention continuing the dangerous trend toward punching more holes in public records law, already riddle with some 30 major exemptions.

With more than 1,500 school bus accidents in Ohio in 2014 and 2015, the public deserves to know more, not less, about what is happening to children put in harm’s way going to and from school. Such coverage could push school officials to address more closely safety concerns, while hiding them would protect them from potential liability. Unfortunately, organizations representing school administrative and business officials support the House bill.

One proponent, state Rep. Bill Seitz, a Cincinnati Republican, went over the top in imaging the possibility of “some fine, budding journalist sticking a microphone in front of a 5-year-old.”

That’s a powerful image. What must be weighed carefully in the balance are the real statistics about school bus crashes and the need for reporting that could lead to safety improvements.

In the past, lawmakers have bowed too easily to pleas for secrecy based on illusions, protecting, for example, the names of those with a concealed carry permit out of fears their weapons might be stolen or shrouding details on how the death penalty is conducted to somehow protect those carrying it out.

Yet without transparency, it is certain that citizens will have increased difficulty knowing what is done in their names and holding public officials accountable.

Enquirer appeals court decision on Rhoden preliminary autopsies

From The Cincinnati Enquirer The Enquirer filed an appeal Wednesday after the Ohio Fourth District Court of Appeals ruled against the news organization last week, stating the unredacted preliminary autopsy reports in the Rhoden family massacre are confidential law enforcement investigatory records and will not be made public.

The Attorney General's office, which has fought to keep the records private, released heavily redacted versions of the final autopsy reports in September 2016. The Enquirer and the Columbus Dispatch sued for the unredacted final records, arguing they are public records under Ohio law. The attorney general argues the release of the records will hinder its ongoing investigation into the unsolved killings.

A Hamilton County Coroner's pathologist performed the autopsies on Christopher Rhoden Sr., 40; his ex-wife, Dana Rhoden, 37; their children Clarence "Frankie" Rhoden, 20, Hanna Rhoden, 19, and Christopher Rhoden Jr., 16; Christopher Rhoden Sr.'s brother, Kenneth Rhoden, 44; and a cousin, Gary Rhoden, 38; as well as Hannah Gilley, 20, who was the fiancee of Clarence "Frankie" Rhoden. The redacted reports indicate they were all shot but disclose little else.

Ohio law addresses coroner's records separately from the public records act, and while some exceptions are made for journalists, the court said the Rhoden preliminary autopsy reports at this time remain confidential.

Since the case originated in the Court of Appeals, the Supreme Court is obligated to hear the appeal. The Supreme Court will likely receive the record of the appeal in the next two weeks. After the record is received, The Enquirer will have 40 days to file its brief.

Jack Greiner, general counsel for The Enquirer and Cincinnati.com, said he hope the Ohio Supreme Court will rule on the appeal before the end of the year.

"Our biggest concern is that the Attorney General's position would eliminate the text of the statute that makes autopsy records public," Greiner said. "Their argument, in our view, eliminates provisions that the general assembly has made to specifically address autopsy records."

Upper Arlington records dispute unresolved

From This Week News The city of Upper Arlington and a resident who alleges the city illegally withheld a portion of an audio recording from a City Council retreat were unable to resolve their dispute through mediation last week.

A mediation teleconference held March 21 failed to settle Upper Arlington resident Robert Foulk's claim that the city violated state public records law when it refused to turn over 14 minutes of audio from a Jan. 10 retreat that Upper Arlington City Council held in Lewis Center.

Now the case has been assigned to an Ohio Court of Claims special master, who is expected to review written arguments before offering a recommendation as to whether the audio was legally withheld or if it should be made public.

After the impasse was reached last week, the city had 10 days to file its response to Foulk's claims that the redacted portion of the audio recording should be made public.

"We're not allowed to talk publicly about what happened in the mediation," said Mark Weaver, an attorney hired by the city. "On behalf of the city, we gave it a good try."

Foulk filed a claim Feb. 6 asking the Ohio Court of Claims to deem the redacted portion of the recording a public record after he requested a copy of the full recording from a Jan. 10 retreat.

In a filing with the court, Foulk's attorney, James Becker, said the city is permitted to withhold discussions that occur only in executive session, a procedure that bars the public from discussions of certain topics, including litigation or pending litigation.

"The minutes of UA's retreat confirm that at no time did City Council seek to meet in executive session," Becker stated in the complaint. "Thus, whatever UA mistakenly seeks to redact in the January 10, 2017 audio cannot be redacted since the statements were made in a public meeting."

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