Ohio pension funds put some expenditures on OhioCheckbook.com

From The Plain Dealer Operating expenditures for Ohio's five public retirement funds can now be seen online -- sort of.

Ohio Treasurer Josh Mandel on Tuesday announced the launch of a pension fund section on his OhioCheckbook.com public spending website. The launch included $700 million in operating expenditures from the Ohio Public Employees Retirement System, State Teachers Retirement System, School Employees Retirement System, Police and Fire Pension Fund and the Highway Patrol Retirement System.

But the spending information available is largely out of date. Expenditures were given for only three months for one system and four years for another. Only one, the Ohio State Teachers Retirement System, included expenditures made within the last year.

The Ohio Public Employees Retirement System voted Wednesday to provide expenditure data for OhioCheckbook.com, a project established in December 2014 by Ohio Treasurer Josh Mandel.

Mandel urged the pension funds to put their spending on Ohiocheckbook.com last year, publicly pressuring the funds after they initially rejected his pleas. The Ohio Police and Fire Pension Fund was the first to sign on, in October. In December, Mandel announced all five would submit expenditures for the database.

Benefits paid to retirees and dependents are not part of the checkbook-level expenses in the database.

"These pension funds should not be cloaked in secrecy -- to the contrary they should be open kimono," Mandel said at a Tuesday news conference. "I believe that taxpayers as well as the cops, firefighters, teachers and other public employees have the right to know how their retirement money is being handled."

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Ohio Supreme Court denies damages in records dispute

From Court News Ohio An Avon Lake man’s attempt to prove he hand-delivered a public records request to the city police department through the use of cellphone video was rejected by the Ohio Supreme Court today.

The Supreme Court voted 5-2 to deny James Pietrangelo II statutory damages. Pietrangelo had sought damages after a three-month delay in the delivery of a police report and accompanying documents from Avon Lake police. The documents dealt with an incident between Pietrangelo and juveniles at a skate park near his home.

In a per curiam opinion, the Court denied Pietrangelo’s request for a writ of mandamus, indicating he received all requested records in existence about the December 2014 incident and that police lawfully destroyed notes they took at the time. Pietrangelo attempted to record his hand delivery of a written public records request, which would allow him to seek monetary damages if police did not fulfill his request in a timely manner. The Court found that the video did not by “clear and convincing evidence” reveal that he actually delivered his request to police.

In a dissenting opinion, Justice Sharon L. Kennedy wrote that, while Pietrangelo should have captured himself on video handing over his request, the video and audio he recorded taken together makes it clear that he handed his request to police and that he is owed damages from the city.

Pietrangelo Seeks Incident Report On Dec. 29, 2014, two Avon Lake police officers responded to Pietrangelo’s complaint about juveniles at a skate park. The officers spoke to Pietrangelo and took handwritten notes, which they asserted were for their personal convenience to help them prepare an incident report. Both officers indicated that they destroyed their notes soon after the report was written.

The next day, Pietrangelo called the police department to inquire if a report had been generated from the incident. Michael Cipro, the records clerk, responded that he informed Pietrangelo that the report had not been completed. Pietrangelo went to the police department later in the day, and Cipro indicated he told Pietrangelo that the report would not be ready for two or three days and he should check back then. The department alleged that Pietrangelo did not make arrangements to have the report sent to him or to pick it up.

Pietrangelo attached to his writ a copy of what was purportedly his hand-delivered records request that he brought to the department on Dec. 30, but the police countered that he did not deliver a written request. Lt. Scott Fishburn reported that all the department employees denied receiving a request, and it was not among the department files where record requests were kept.

Pietrangelo claimed he delivered the request, asked Cipro in person if a police report would be available that day, and that Cipro told him at that time there was only a draft report that he would not release. Cipro denied that he told Pietrangelo there was a draft report.

Pietrangelo has filed a separate lawsuit against the city to declare the skate park a nuisance, and he asserted that he suspected the police would ignore his records request, which is why he put in it writing. Pietrangelo filed his writ action with the Court on Feb. 5, 2015, asking the police to comply with Ohio’s Public Records Act, R.C. 149.43, and alleged that because of the city’s “pattern of refusal” he was seeking statutory damages, costs, and attorney fees.

The Court referred the matter to mediation in mid-February, and the day after the mediation failed in mid-March, the city called Pietrangelo and informed him his records request was ready. He received a compact disc with most, but not all, of the records he requested.

Police Notes Not Public Record Among the records Pietrangelo requested that were not delivered were the police officers’ handwritten notes, and the draft incident report he alleged Cipro mentioned. Citing its 2004 State ex rel. Cranford v. Cleveland and 1993 State ex rel. Steffen v. Kraft decisions, the Court wrote that notes taken by officers for their own convenience when used to later prepare a report are not department official records and are not public.

Pietrangelo countered that the police admitted they had a custom of keeping the notes of responding officers concerning violations of skate park rules. Pietrangelo sought the notes because he believes they contain fictitious addresses given by some of the juveniles that are not in the official report.

“If the notes have been destroyed, correctly or not, they cannot be produced at this point,” the Court wrote.

The Court ruled the city cannot be ordered to produce records that no longer exist. The police also admitted there was no “draft” report, but only an incomplete report at the time Pietrangelo requested it. Once it was completed, it was made available to Pietrangelo. The Court concluded all the public records Pietrangelo was entitled to receive were produced and made available.

Video Fails to Show Records Request Pietrangelo argued he should be awarded damages because the department did not produce the records of the December incident until March. He asserted that the police failed to satisfy the requirement under R.C. 149.43(b)(1) to make requested records available “within a reasonable time.” The law allows a record requester to seek damages because of delay only if the request is delivered in writing by hand or certified mail. The law requires clear and convincing evidence proving a written request was delivered.

The police maintained Pietrangelo did not deliver a request and it was not in their department files. They did note that their records log indicated Pietrangelo made three other records requests between September 2013 and August 2014.

Pietrangelo recorded his Dec. 30 visit to the police department, but the Court determined that during most of the video the request is held over the camera lens. The Court concluded it was impossible to tell from the video where he was walking and while it briefly shows a sign with an arrow pointing to the police department, the recording is mostly of Pietrangelo’s feet.

“Once he is inside, the video briefly shows Pietrangelo’s hand holding the document, but it does not show him handing the document to anyone, or another hand taking the document from him,” the opinion stated. “Pietrangelo can be heard speaking to another person, indicating that he was seeking more than just the report and logs and was also requesting all documents relating to the incident. Neither he nor the other person who can be heard on the recording refer to a written request.”

The Court determined that video was inconclusive, and because there are contradictory accounts from Pietrangelo and police-department employees, Pietrangelo failed to show by clear and convincing evidence that he hand-delivered the request, and he is not entitled to damages.

Chief Justice Maureen O’Connor and Justices Paul E. Pfeifer, Terrence O’Donnell, and William M. O’Neill joined the opinion.

Justice Judith Ann Lanzinger concurred in judgment only without a written opinion.

Dissent Concludes Video Proved Delivery Justice Kennedy wrote the video “clearly and convincingly” demonstrates Pietrangelo hand-delivered the request to police, and is entitled to damages. She noted that Pietrangelo is not a novice record requester:  he had previously hand-delivered three separate requests to the police department and had pursued a legal action in this Court earlier this year in a public records dispute with Avon Lake.

She maintained the majority did not give a “full and fair depiction of the contents of the recording,” in which the audio captures Pietrangelo describing his records request and that he is at the police department to hand-deliver the request. When he entered the building, he said: “Hi, Inspector Cipro. That’s a request.” She noted that a voice different from Pietrangelo’s responded “OK.”

“In this context, ‘that’ is a demonstrative pronoun; it refers to the document and conveys that the document is no longer in Pietrangelo’s hand,” Justice Kennedy wrote. “Cipro’s response of ‘OK’ indicates an acknowledgement. Accordingly, it is reasonable to infer that Pietrangelo handed the document to Cipro and Cipro received it.”

She stated that the majority has imposed aon Pietrangelo that is more than “clear and convincing,” and seems “to require evidentiary proof above even the criminal standard burden of beyond a reasonable doubt and require uncontrovertible evidence” to prove his actions. She noted in the future Pietrangelo ought to make sure to capture himself handing the document to the employee of the entity from which he is seeking public records

Justice Judith L. French joined Justice Kennedy’s dissent.

Editorial: Ohio public-records mediation a smart move for state and its citizens

Editorial from The Plain Dealer The Ohio legislature deserves a thumbs-up for giving citizens a way to dig into public records without forcing them to dig deep into their pockets.

Under Substitute Senate Bill 321, which passed in June and goes into effect Sept. 28, citizens denied public records by a government entity in Ohio will be able to opt for a $25 mediation process through the Ohio Court of Claims instead of having to file a lawsuit and thereby forcing the government to defend itself in court. Mediation should ensure that more Ohioans are able to take advantage of the state's open records law, which is the hallmark of good, transparent government.

Currently, citizens denied public records have only one legal remedy: a mandamus action, or a writ, through the courts forcing the government to turn the public records over.

But litigation can be a sky-high barrier for many record-seeking citizens who lack the money to hire a lawyer.  Soon, rejected citizens will be able to pay $25 to file a complaint in their county clerk's office for the Ohio Court of Claims, which will then attempt to mediate the problem.

If mediation fails, a special master steps in and gives the Court of Claims judge an advisory opinion. The judge can then issue a legally binding decision. That ruling is appealable, but the idea is that most of these disputes will be resolved efficiently within weeks, not months, by an independent, third party.

About 28 states already offer mediation as a way to resolve public-records disputes, said Dennis Hetzel, executive director of the Ohio Newspaper Association.

Hetzel supports the new Ohio law, as does state Auditor Dave Yost and Ohio Attorney General Mike DeWine. Yost and DeWine said they will likely dismantle their programs to mediate public-records disputes.

Ideally, there should be no need for mediation or lawsuits. Ohio Revised Code 149.43 has a right-thinking view of how public records should be handled: Public records (with some reasonable exceptions, such as personal information about law-enforcement personnel) should be "promptly prepared and made available for inspection ( or copying) to any person at all reasonable times during regular business hours." And the requester need not even give her or his name.

Despite the clarity of Ohio law, it is not unusual for some cities and villages to thumb their noses at it and refuse to turn over consultant contracts, mayor's schedules, public officials' garage-door logs and other documents on the flimsiest excuses.

If public-records mediation works as it should, it will give many citizens an opportunity to pry those records free without costly dramas. That's how it should be.

Against transparency? Why government officials' email should NOT be private

From Unredacted In a widely circulated article for Vox.com entitled “Against Transparency: Government Official’s Email Should be Private, Just Like Their Phone Calls,” Matthew Yglesias writes that because of the frequency of digital communication by government officials, “Treating email as public by default rather than private like phone calls does not serve the public interest.”  He did not mention that the Freedom of Information Act is now based upon  “Presumption of Openness” that requires all executive branch records to be subject to release unless they qualify for one of nine** FOIA exemptions.

Yglesias is wrong on many of his arguments beginning with his hazy recap of the 1787 Constitutional Convention. He implies that no “complete and accurate record” exists to bolster his claims that transparency harms effective deliberation.  But this is contrary to the rather voluminous existent record of the Convention showing how the framers thought and the justifications which they cited.  Also factually incorrect is his assertion that phone calls are inherently “private.” Dean Acheson documented his conversations; they’re available on the Truman Library’s website. Eisenhower’s Secretary of State Christian Herter documented his as well.  The National Security Archive, after a decades-long fight, has won the release of more than 16,700 Kissinger Telcons, transcripts of his telephone calls.

His argument that “Email isn’t mail” –along with being incorrect– is also not novel.  It is the exact argument made by the Reagan Administration to the National Security Archive as it attempted to delete all all traces of its emails before turning the keys to the White House over to the H.W. Bush Administration in January 1989.  Attempting to justify deletion of the email, the responsible official at NARA told the National Security Archive that federal emails were akin to telephone messages slips, not worthy for preservation.  Fortunately, for all journalists not named Yglesias, U.S. District Court judge Barrington D. Parker rejected this assertion, ruled for the Archive and against Reagan’s acting Attorney General John Bolton (yes, that one), and granted the restraining order that preserved the Reagan Administration’s emails from deletion.  After years of legal battles with both Democratic and Republican administrations, the National Security Archive eventually won the preservation of several hundred thousand White House emails from the Reagan presidency, nearly a half million from the Bush-41 term, 32 million from Clinton, and an estimated 220 million from Bush-43.  Our settlement with the Obama administration ensures that all of his White House emails (along with Blackberry messages) will also be preserved and per the Presidential Records Act, will be available for FOIA requests as early as five years after he leaves office.

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Against transparency: Why government officials' email should be private, just like their phone calls

From Vox

“Can I give you a call?”

It’s the worst possible reply to an email, but one I receive all too often in the course of reporting. Phone calls are journalistically indispensable when you want to conduct an extended interview, but for a routine query or point of clarification, email is much, much better.

Besides which, like any self-respecting person born in the 1980s, I hate phone calls.

The issue is that administration officials and other executive branch aides don’t want to leave a record of the conversation that might come to light one day. Not necessarily because they have anything scandalous to say. After all, we live in a world where something as banal as Doug Band, a top Clinton Foundation aide, asking Huma Abedin, a top State Department aide, for a special diplomatic passport for a hostage rescue trip to North Korea and being told he can’t have one can be spun as a scandal by a determined team of reporters and editors.

If Band had made a phone call instead of sending an email, Hillary Clinton would have been spared the bad — and totally unjustifiably so — news cycle she suffered last week. Which is why prudent staffers want to do basically everything, no matter how innocent, over the phone.

The issue is that while common sense sees email and phone calls as close substitutes, federal transparency law views them very differently. The relevant laws were written decades ago, in an era when the dichotomy between written words (memos and letters) and spoken words (phone calls and meetings) was much starker than it is today. And because they are written down, emails are treated like formal memos rather than like informal conversations. They are archived, and if journalists or ideologically motivated activists want to get their hands on them, they can.

It’s impossible to write about this issue in today’s environment without thinking of Clinton’s use of a private email account while serving as secretary of state. But while the question of whether she appropriately followed the existing laws is obviously important, so is the question of whether the laws make sense. And the answer is: no. Treating email as public by default rather than private like phone calls does not serve the public interest. Rather than public servants communicating with the best tool available for communication purposes, they’re communicating with an arbitrary legal distinction in mind.

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DeWine: Releasing autopsy reports threatens Pike County case

From The Cincinnati Enquirer Ohio Attorney General Mike DeWine argued Tuesday that releasing final autopsy reports of the April 22 Pike County killings would jeopardize the ongoing investigation and made the case for mediation of lawsuits for the reports' release.

DeWine, in a filing with the Ohio Supreme Court, said that transparency of law enforcement is important, but so is the "ability of law enforcement to apprehend and prosecute criminals." DeWine was responding to a lawsuit The Columbus Dispatch filed Aug. 12, which mirrored The Enquirer's lawsuit against the Pike County Coroner's Office for the autopsy records filed July 22.

The Dispatch argued against the mediation, saying it wouldn't be fruitful.

"Mediation likely only serves to advance the state's agenda of delaying the production of the final Rhoden autopsy records," a filing stated.

In reply, DeWine said mediation offers the parties involved the opportunity to explore solutions that "could address the concerns of all parties efficiently and expeditiously as possible."

Jack Greiner, general counsel for The Enquirer and Cincinnati.com, said the mediation is a delay tactic.

"In our cases (one for the preliminary autopsy and one for the final report), we have asked the AG for a settlement proposal in order to move the mediation along," Greiner said. "Despite their statements about wanting to resolve the case, they have refused to make any settlement proposal. That is not a good faith approach."

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Accessing court case documents in Hamilton County is reserved for a privileged few

From City Beat

When it comes down to it, you should be able to read court documents in the raw.

Naked, that is. From home.

You can in many places. But not in Hamilton County, unless you’re a lawyer, a reporter or work in law enforcement. Here you have to get dressed and hump down to the county courthouse downtown.

If you want to nose into a cousin’s disorderly conduct charge, gawk into a neighbor’s divorce case or read about an employee’s shoplifting spree, those are all public records. But without a lawyer’s help, you’ll need to take time off from your job, get yourself downtown, pass through a metal detector, trek up to the third floor and either find what you want on a computer terminal or at a counter.

“Anyone can come down to the courthouse and make copies,” says Mark Waters, administrator for Hamilton County Clerk of Courts Tracy Winkler.

But who would want to? Think of all the public records you can read online: home sales on the county auditor’s website; campaign contributions to politicians; the location of the federal prison where your half-brother Rufus is serving 12 to 15. Federal court docs are available for online perusal, too. You have to set up an account and pay 10 cents a page, but you can do it in bed.

Twenty years ago, the court clerk’s office was at the forefront of posting records online. Then-clerk James Cissell snagged the domain name courtclerk.org and Hamilton County’s court records became online fodder in 1996. But because records weren’t scrubbed of data like Social Security numbers, identity thieves had a field day. In 2006, Cissell’s successor, Greg Hartmann, lowered the portcullis and set up the password system in place today. You can run names through the website and find cases. You just can’t open the docs.

Some people would like to change that. One is Aftab Pureval, a Procter & Gamble attorney running for Winkler’s job as Hamilton County clerk of courts this Nov. 1. He sees the clerk’s office as ripe for modernization.

“Accessing the courts can be a hassle and it places an undue burden on working families and the poor,” Pureval says. “Think about people who work by the hour or who work multiple jobs. You have to take time off. You have to find time to go downtown, which either means driving and paying for parking or coordinating public transportation. You have to wait to be served, then you get hard copies of what you need and often have to pay for prints. It disproportionately encumbers the people who often need the courts the most.”

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New Ohio public records appeal process starts Sept. 28

By Dennis Hetzel, OCOG President Starting on Sept. 28, the ONA-backed bill to give Ohioans a low-cost, quick process to appeal the denial of a public records request will go into effect.

Earlier this week, we had a good meeting with Ohio Court of Claims officials. For a $25 filing fee, you will be able to appeal a denial and have a binding ruling in 60 days or less in many situations. You’ll be able to file at your local courthouse or online through the Court of Claims website. What’s more, all the filings and related documents that are open records will be available online as well.

As ONA members, you’re encouraged to take advantage of this process, and we will want feedback from our newsrooms on how the process is working.  As I told The Columbus Dispatch this week, if it works as intended, Ohio will have a process that could be a national model. But, this is novel and brand new; tweaks may be needed. Hopefully there won’t be serious problems.  (We’re already working on suggestions to improve the law.)

The ACLU of Ohio already has updated their excellent guide to Ohio’s laws to explain the new appeals process as well as the existing law, which continues. You still have the option to go directly to court, though the hope is that many cases, certainly the more routine ones, will be settled in the Court of Claims. A link to their guide is below. Every newsroom should make this available, as it is close to identical to what the ONA would do if we did one ourselves.

Note that the attorney general and state auditor will be eliminating their open records appeals programs as this new law takes effect.

We will be communicating more on this new process as the date gets closer. ONA General Counsel Mike Farrell and I also will include details on the process in a free webinar on latest developments in Ohio’s Sunshine Laws.  Coincidentally, that webinar will be on Sept. 28, at 10 a.m., and registration will open soon.

Click here for the ACLU’s downloadable guide to Ohio open meetings and public records.

Columbus Dispatch article with detail on the new process

Mediation ordered in suit over autopsies in 8 Ohio killings

From The Associated Press The Ohio Supreme Court wants a settlement reached in the case of a newspaper suing a coroner for autopsy records in the unsolved slayings of eight people from one family.

A complaint by The Columbus Dispatch that is before the court alleges the Pike County coroner is improperly withholding the final autopsy records.

The coroner says the autopsies are "confidential law enforcement investigatory records" that aren't subject to public records laws. Ohio's attorney general says he supports that position to avoid jeopardizing chances of catching the killers.

The court on Tuesday ordered the case to mediation. The Cincinnati Enquirer has filed a similar lawsuit, which is also in mediation.

Seven adults and a teenage boy from the Rhoden family were found shot at four homes near Piketon on April 22.

Treasurer Josh Mandel and Auditor Dave Yost announce OhioCheckbook.com integration with Local Government Accounting Portal

From an Ohio Auditor press release

Ohio Treasurer Josh Mandel and Ohio Auditor Dave Yost announced today the partnership between OhioCheckbook.com and the Auditor’s Uniform Accounting Network (UAN).  Local governments utilizing UAN can now, through the website UANlink.OhioAuditor.gov, submit their year-end financial reports to the Auditor and choose to have UAN transmit their checkbook level spending to the OhioCheckbook.com in a quick, easy and convenient process.

Created by the Auditor’s office, the Uniform Accounting Network (UAN) is a user-friendly financial management package designed to assist local governments in meeting the required accounting standards.  Over 1,900 of Ohio’s townships, villages, libraries and special districts use UAN for their daily accounting operations.  Over 300 of these local governments are currently committed to posting their spending on OhioCheckbook.com.

This partnership now gives local governments the option to upload their year-end financial statements required by the Auditor’s office while also submitting the files needed to join OhioCheckbook.com.  Local governments simply need to select the option to join OhioCheckbook.com and choose the years of data they wish to upload.

“The Auditor of State’s Office and Office of the Ohio Treasurer both have a well-established tradition of promoting transparency in Ohio’s governments,” Auditor Yost said. “This partnership will make it even easier for local governments to assure taxpayers their dollars are spent properly.”

“I believe the people of Ohio have a right to know how their tax money is being spent,” said Treasurer Mandel.  “By partnering with the Auditor’s office, we’ve made it even easier for many local governments across Ohio to manage their finances and shine sunlight on spending decisions with only a few clicks of the mouse.”

“The Treasurer’s office and the Auditor’s office continually show their commitment to government transparency, and have built an even easier tool to help Ohio’s local communities demonstrate complete transparency with their constituents,” said Village of South Zanesville Fiscal Officer Chris Kerby.

“With this new reporting tool, it takes only minutes to get signed up and update our online checkbook,” said Village of West Jefferson Fiscal Officer Debbie Dileo.  “That leaves more time to dedicate towards my constituents.”

In December 2014, Treasurer Mandel launched OhioCheckbook.com, which sets a new national standard for government transparency and for the first time in Ohio history puts all state spending information on the internet.

Nexus 'private' public comment meetings come under fire

From The Plain Dealer Some residents along the proposed 255-mile Nexus natural gas pipeline are upset because a federal agency seeking their comments is holding private sessions instead of town hall-style public meetings.

The Federal Energy Regulatory Commission (FERC), the agency that must approve the pipeline before it can go forward, has held five meetings in Ohio recently. A sixth meeting is tonight in Green. During those recent sessions, FERC officials talked to residents privately.

In previous pipeline-related meetings held by FERC and other agencies, the format was different. There was a presentation of facts and then the floor was opened to questions.

FERC is seeking comment from residents about a proposed $2 billion Nexus Company pipeline that could run from Kensington in eastern Ohio to a gas storage facility in Ypsilanti, Michigan, and then to Ontario. The proposed pipeline would run through Summit, Medina and Lorain counties. Many residents in Ohio oppose the pipeline.

"People expected it to be the same as previous hearings, like the FERC hearing last fall in Wadsworth," said Jon Strong, of Guilford Township, Medina County. Strong is co-founder of the Coalition to Reroute Nexus (CORN). "I think they should return to the public hearing style (meetings) so the public can hear what others have to say and learn from each other."

Tamara Young-Allen, spokesperson for FERC, said people seem to like the new method, which was put into place after complaints about the town hall format.

"Last year, we received many complaints from people who did not get a chance to speak," she said. "Even though we limit the time to three to five minutes. We wanted to maximize the process and came up with the idea to host one-on-one sessions with interested persons and a court reporter to get their comments."

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Joining Ohio online 'checkbook' made easier for small governments

From The Plain Dealer Townships, libraries and other smaller Ohio governments now can make their spending publicly available online with the click of a button.

The more than 1,900 entities that use the state's Uniform Accounting Network can log into their online account and opt in to OhioCheckbook.com, a database of state and local government spending housed in Ohio Treasurer Josh Mandel's office. About 400 local governments have signed on to the database since last year.

The small governments won't have to pay for the service. Ohio Auditor Dave Yost, whose office operates the accounting network, said Thursday that his staff members will transmit annual data on behalf of governments that opt in.

Mandel intends to expand a program that put the state government's checkbook online to include all local governments, allowing residents to see how their communities and schools are spending money with just a few clicks.

"If you're not on the treasurer's checkbook at this point, you really need to be able to tell your voters and taxpayers why not because there's really no good reason," Yost said at a Thursday news conference with Mandel.

Mandel said another 376 entities are moving their data to the database and the partnership with Yost's office will speed up the process.

"Now it's like flipping a switch," Mandel said.

OhioCheckbook.com launched in December 2014 with seven years of state agency expenditures. Mandel's office opened the database to cities, counties, school districts and other local government entities in April 2015.

The checkbook cost about $814,000 to set up, and Mandel's office requested $1.3 million to offer the service to local governments. The actual annual cost will depend on the number and size of the entities that sign up.

Ohio Supreme Court rules against school district in FERPA records lawsuit

From SPLC A public school district cannot rely on the FERPA privacy statute to selectively withhold basic demographic information about students from certain unwanted requesters, the Ohio Supreme Court has ruled.

A nonprofit organization, School Choice Ohio, alleged the Springfield City School District was using its records policy to deny the release of information to organizations it opposes.

School Choice Ohio filed a public records request in 2014 for student names, addresses and other contact information. The federal Family Educational Rights and Privacy Act requires districts to keep students’ “education records” confidential, but it expressly exempts harmless “directory information” of the type that School Choice Ohio requested.

The district released names and address, but denied any other information, claiming it wasn’t a matter of public record and citing FERPA.

“We felt it was important to take on the time and cost of this case because we believed families were being denied potentially life-changing information,” said Kaleigh Lemaster, executive director of School Choice Ohio.

The organization annually requests directory information from school districts to conduct outreach to families who could be eligible for school choice programs such as scholarships or other benefits. The information could also be used to help families pick a school they felt suited their children best.

Having information on schools could also help families potentially avoid underperforming schools. Springfield City School District ranks 692 out of 881 school districts in Ohio, according to the state Department of Education.

Additionally, the district has several schools on the Focus list and one on the Priority list. Focus list schools have high achievement and graduation deficiencies and fail to decrease the deficiencies over a number of years. Priority list schools have low graduation rates and poor performance in reading and math.

“We think parents know their children best and are best suited to make these decisions,” Lemaster said.

However, administrators thought the outreach done by the organization could be misleading.

The district has had its current student privacy policy since 2013, declining to use the federal “directory information” phrase and instead sending a consent form to parents to release information, according to the Springfield News-Sun. The superintendent could then use discretion to decide whether the information could be released to each requesting organization.

Kim Fish, the district spokesperson, who did not respond to SPLC’s requests for comment, told the Springfield News-Sun that the district adopted the policy to protect children’s privacy and to withhold information from organizations that might use it in a misleading way.

“The Board of Education adopted our current student privacy policy with the primary goal of giving parents more options in protecting their child’s information and to protect students and families from receiving false and misleading information,” Fish told the local news outlet.

The court ruled that the information requested by School Choice Ohio fell within the boundaries of the consent form and the release would not violate FERPA. Because Ohio law requires the production of public records unless forbidden by federal law, and because disclosure of directory information is expressly allowed under FERPA, the district was required to produce the requested documents, Justice Judith Ann Lanzinger wrote in the Court’s July 21 ruling.

“I think one thing this ruling makes very clear is that if a district can provide directory information under FERPA, it must,” Lemaster said.

The court did not, however, rule that the district must change its student privacy policies as the organization requested. The district will still be able to require parental consent to release information, but the superintendent will no longer have the control he once did to decide what organizations to which that information will be released.

Once the district has parental consent for disclosure, they must release the information if it is requested.

“This is a major victory for families who could have not had this information because of the abuse of power of a superintendent,” Lemaster said.

The case is State ex rel. School Choice Ohio, Inc. v. Cincinnati Pub. School Dist.

OCOG's summer 2016 Open Government Report now available

The summer 2016 edition of the OCOG’s Open Government Report is now available. The issue provides special coverage of police body cameras and public records in Ohio, including tracking which law enforcement agencies in the state are using or considering using the cameras. Also included in the issue is coverage of recent improvements to Ohio’s open records laws along with a roundup of state open government news and editorials.

Click here to download the report as a PDF.

OCOG’s resources are limited – less than $65,000 at this writing. It operates based on this small amount of invested funds and pro bono staff and logistical support from the parent Ohio Newspapers Foundation.  A single legal battle easily can cost $5,000 or more, and protracted legal disputes are far more expensive.  The demand on OCOG’s funds, particularly to support litigation on open government issues, keeps growing.

With that in mind, please consider OCOG as part of your 2016 charitable giving. OCOG is a 501(c)3 organization that accepts tax-deductible contributions.

To donate, click here.

Court sends Enquirer suit vs. Pike County coroner to mediation

From The Cincinnati Enquirer The Supreme Court of Ohio announced Wednesday it has sent The Enquirer's lawsuit against the Pike County Coroner's Office to mediation.

The Enquirer filed its lawsuit against the coroner's office July 26 after being denied access to the final autopsy reports for the eight family members of the Rhoden family killed in April.

According to a Wednesday news release, the court can dismiss the case or take other action if the parties fail to timely file merit briefs.

"I have inquired with the Pike County prosecutor (Rob Junk) to see if he feels there is any point in going through mediation give that both of us feel very strongly about our positions," Jack Greiner, general counsel for The Enquirer and Cincinnati.com, said. "It is difficult to see where there would be room to compromise."

Pike County Prosecutor Rob Junk declined to comment, citing the pending legal action.

The Columbus Dispatch on Monday also filed suit against the Pike County Coroner's office also alleging it was improperly withholding the same autopsy reports.

ECOT wants records back, says state violated student privacy

From The Columbus Dispatch A week after the state’s largest charter school turned over thousands of records to the state, it now wants some of them back.

The Electronic Classroom of Tomorrow is accusing the Ohio Department of Education of criminal invasion of privacy that, it argues, puts hundreds of students’ identities at risk.

A letter from ECOT to the education department’s legal counsel accuses the department of violating state law in regards to the removal of student records from the school’s custody -- even though ECOT itself provided the records.

ECOT attorney Marion Little says the department has copied and removed more than 1,000 records containing student identifying information. This, he argues, violates state law that says the department shall not have access to records that matches information to personally identifiable student data.

“The department’s attacks against ECOT have been out of bounds, but this is a dangerous, new low,” said ECOT lobbyist Neil Clark. “ECOT will do everything it can to protect its students from the department’s reckless and unlawful actions.”

The records are part of an ongoing battle between ECOT and the department over how to audit the school’s attendance. That student count that would be used to determine if the school was properly paid for the 2015-16 school year, when ECOT got about $106 million in state funds.

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Dispatch sues Pike County coroner over Rhoden autopsy records

From The Columbus Dispatch The Columbus Dispatch filed a lawsuit Monday against the Pike County coroner's office, saying it is improperly withholding final autopsy records in the Rhoden family mass killing.

"We understand the sensitivity of this case, and we will act responsibly when we gain access to these public records," said Dispatch Editor Alan D. Miller.

"We believe that Pike County authorities, at the direction of the Ohio attorney general, are violating the law by refusing to release these documents."

On behalf of the public's right to know, Miller said, The Dispatch had repeated conversations with the authorities over many months — initially over preliminary autopsy reports — and sought a non-confrontational path to obtaining the public records.

"In the end, they virtually forced us to take legal action," Miller said. "We have great respect for those conducting the investigation, but we have seen no evidence that this would be disruptive to their case, nor have we seen examples of the release of such information affecting similar cases in the past." The Dispatch filed the suit in the Ohio Supreme Court.

In the suit, Dispatch Reporter Holly Zachariah said she began requesting the final autopsy reports for the eight Rhoden family members killed on July 22, the day she found out that the final autopsy reports were with the coroner. The Rhoden family members were killed April 22 in rural Pike County.

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Jack Greiner on why the Pike County Coroner must release those autopsies

By Jack Greiner

The Columbus Dispatch reports that the Pike County Coroner, David Kessler, has completed the autopsy reports on brutal slayings in Pike County Ohio. And, contrary to Ohio Law, he is refusing to produce copies. He is relying on Ohio Attorney General Mike DeWine for support on this illegal action.

It appears that Kessler is citing a 1984 Ohio Supreme Court case – State ex rel Dayton Newspapers v. Rauch – where the Court ruled that autopsy reports are exempt from the Ohio Public Records Act. But in legislation adopted after that 1984 decision, the Ohio Legislature made it clear the Rauch case is no longer controlling. Revised Code 313.10 provides:

Except as otherwise provided in this section, the records of the coroner who has jurisdiction over the case, including, but not limited to, the detailed descriptions of the observations written during the progress of an autopsy and the conclusions drawn from those observations filed in the office of the coroner under division (A) of section 313.13 of the Revised Code, made personally by the coroner or by anyone acting under the coroner's direction or supervision, are public records. (emphasis added)

This statute begs the question -- what part of “ARE PUBLIC RECORDS” do these guys not understand?

The same statute then specifically lists those records that are not public record:

2) Except as otherwise provided in division (D) or (E) of this section, the following records in a coroner's office are not public records:

(a) Preliminary autopsy and investigative notes and findings made by the coroner or by anyone acting under the coroner's direction or supervision;

(b) Photographs of a decedent made by the coroner or by anyone acting under the coroner's direction or supervision;

(c) Suicide notes;

(d) Medical and psychiatric records provided to the coroner, a deputy coroner, or a representative of the coroner or a deputy coroner under section 313.091 of the Revised Code;

(e) Records of a deceased individual that are confidential law enforcement investigatory records as defined in section 149.43 of the Revised Code;

(f) Laboratory reports generated from the analysis of physical evidence by the coroner's laboratory that is discoverable under Criminal Rule 16.

This section begs another question – if the autopsy is exempt in its entirety, why provide specific carve outs, especially for the “preliminary autopsy”? If the autopsy is exempt, then by definition the preliminary autopsy is exempt. Under the interpretation invented by the Coroner and the AG, the statute is utterly meaningless.

And even with those excepted records, the statute provides as follows:

(D) A journalist may submit to the coroner a written request to view preliminary autopsy and investigative notes and findings, suicide notes, or photographs of the decedent made by the coroner or by anyone acting under the coroner's discretion or supervision. The request shall include the journalist's name and title and the name and address of the journalist's employer and state that the granting of the request would be in the best interest of the public. If a journalist submits a written request to the coroner to view the records described in this division, the coroner shall grant the journalist's request. The journalist shall not copy the preliminary autopsy and investigative notes and findings, suicide notes, or photographs of the decedent.

But, and this probably comes as no surprise at this point, the coroner won’t let any journalists see the information which the Ohio Revised Code absolutely requires them to provide for inspection.

We hear our elected officials talk a lot about respect for the rule of law. It would probably sound more sincere if they showed a little respect for it themselves.

Auditor decides not to investigate Huber Heights records complaint

From The Dayton Daily News

Ohio Auditor Dave Yost’s office will not investigate a public records dispute within Huber Heights city government.

A letter from the auditor’s office to Huber Heights Law Director Alan Schaeffer notes the agency believes the issues are “resolved at this time” and considers “the matter closed.”

Councilmen Richard Shaw and Glenn Otto were accused last month by Councilman Ed Lyons of improperly removing public records from city facilities. Lyons shepherded through council a motion to ask Yost to investigate the incident.

An email obtained by the Dayton Daily News shows Otto became upset with Schaeffer on Saturday, noting he did not receive the auditor’s decision — issued last Wednesday — “immediately” from Schaeffer.

“I am personally aware of this as I took the initiative to obtain the information myself through a public records request,” Otto wrote in his email. “In light of this, I still have concerns that your legal representation does not include the whole of Huber Heights City Council as it should.”

On Monday, Schaeffer narrowly survived a vote to terminate his contract. In a surprise move, Otto motioned to vote on whether to terminate Schaeffer’s contract.

The measure to oust Schaeffer failed 3-4. Council members Tyler Starline, Shaw and Otto voted to terminate Schaeffer’s contract. Lyons recused himself from the vote, but would not elaborate why.

“It’s unfortunate that there wasn’t enough evidence to compel the state auditor’s office to investigate,” Lyons said after the auditor’s decision. “However, there is still a real liability to the city based on the public records laws that have been broken.”

Shaw and Otto have long said the documents they removed – including four boxes worth – were copies and that no laws were broken. Nor, they said, were they involved in one page of minutes from a 2008 meeting disappearing.

Schaeffer did not respond Tuesday to requests for comment.

The relationship between Schaeffer, Otto and Shaw was rocky even before the members were elected last year. In October 2015, Schaeffer found Shaw and Otto in violation of a city ordinance by using the city’s logo on their campaign websites.

Schaeffer is an attorney with Pickrel, Schaeffer and Ebeling law firm. In addition to Huber Heights, Schaeffer is counsel to the city of Springboro. He earned his law degree from the Ohio State University in 1973 and passed the state bar in 1974.

Coroner, attorney general refuse to release final autopsies in Pike County killings

From The Columbus Dispatch Pike County authorities and Ohio Attorney General Mike DeWine refused Tuesday to release the final autopsy reports of eight Rhoden family members who were shot to death in April, something which public-records experts say is a mistake.

Pike County Coroner Dr. David Kessler first denied The Dispatch access Friday night and again on Monday, and then wrote in an email Tuesday that he considers the autopsy reports "confidential law enforcement investigatory records." He wrote that their release "might impede the criminal investigation or the families' grieving process."

The coroner offered no case law that gave him the authority to withhold the records, but DeWine's office later cited a 1984 Ohio Supreme Court case in which the court ruled that autopsy reports in a homicide investigation are confidential. The office also cited a section of the Ohio Revised Code that references a coroner's exemption for records that are considered confidential as part of a law enforcement investigation.

"We believe the law says they do not have to be released," DeWine said. He said case law protects such reports for a reason.

Their release, he said, "would damage our ability to solve this case. Our ability to judge the veracity of information coming in, our ability to judge the credibility of information coming in, all goes away once that is public."

Dispatch Editor Alan D. Miller disagrees.

"While we respect what the authorities are saying about the investigation, we see no evidence that this would be disruptive to their investigation, which at this point seems to be going nowhere. Nor have we seen examples of the release of such information affecting similar cases in the past," Miller said.

"Is it conceivable that great public knowledge could help them solve the case? That's possible."

Miller said this case — and the papers request for the records — is not about the media. It's about public access to information.

"We have great respect for the authorities and the work they're doing to try and solve this case. We also believe the law says these records are public, and the attorney general and Pike County authorities don't get to choose what laws they follow."

The attorney general's own handbook on Ohio's public-record laws says that the section of state code that governs a coroner's records now supersedes that 1984 ruling.

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