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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Ohio may redact kids’ names from school bus crash reports

From The Dayton Daily News

In what could be a major shift in Ohio’s public records law, the names of children involved in hundreds of school bus accidents across the state each year would be withheld from disclosure on police reports.

Republican State Reps. Jeff Rezabek of Clayton and Peter Hambly of Brunswick are co-sponsoring a bill to exempt from public disclosure information on minors who are passengers in school bus accidents.

Medina resident William Horton asked Hambly to change the public records law after his 8-year-old son was a passenger in a school bus accident in May 2016. Horton was alarmed to learn that personal injury lawyers obtained his son’s name, date of birth, address and phone number from a traffic crash report.

“I felt that the law must be changed because if anyone can get this private information, what would stop criminals, fraudsters, pedophiles and other people who prey on children from getting this information,” Horton said in written testimony supporting House Bill 8.

The bill has support from the Ohio School Boards Association and others but it is strongly opposed by the Ohio News Media Association, which says it’ll set a dangerous precedent of redacting information from routine police reports on traffic accidents. Those reports provide basic details on what happened, where, when and who was involved.

Ohio’s Open Records law, which provides for scrutiny of state and local government documents, generally presumes openness, unless there is a compelling reason to close off access.

Rezabek says there is a compelling reason: disclosure puts minors at risk of possible identity theft.

“We are just trying to close that loophole, to make sure children identities aren’t stolen,” Rezabek said. He could not provide data on how often thieves steal children’s identities by requesting access to police incident reports on school bus crashes.

Between 2012 and 2016, there have been 6,606 crashes involving school buses, leading to 16 deaths and 2,317 injuries, according to the Ohio Highway Patrol.

Journalists often use police incident reports to gather information and reach out to victims and witnesses to find out what happened for accurate, timely news stories.

In November 2016, six elementary school students were killed and several injured in Tennessee when their bus driver was speeding and talking on a cell phone. Public records released by the school district showed students had complained about his dangerous driving before the accident.

Hetzel said it’s a “fool’s errand” to try to shield the school bus crash information since it’ll likely spread quickly on social media channels.

“In many cases, children’s names will be on the neighborhood Facebook page or other social media outlets in a matter of minutes — often with inflated and inaccurate information of names and extent of injuries,” he wrote to Ohio News Media Association members.

Rezabek maintains that journalists and any other member of the public could still obtain information on the minors by requesting it from the local school district. He noted, though, that the release policies may vary within Ohio’s 600-plus districts.

So, why should minors’ information only be protected when they’re involved in school bus crashes, as opposed to all traffic accidents? Rezabek said he’s taking it one step at a time.

House Bill 8 is scheduled on Wednesday to receive its third hearing.

LoMonte named director of UF's Brechner Center, SPLC launches search for successor

From The SPLC Attorney Frank D. LoMonte, who has led the Student Press Law Center since January 2008, is leaving the SPLC effective July 31 to join the University of Florida College of Journalism and Communications, where he will head the Joseph L. Brechner Center for Freedom of Information as a Professor of Journalism.

LoMonte will succeed Sandra L. Chance as director of the Brechner Center, which since its founding in 1986 has served as a source of research, advocacy and public assistance, with a particular focus on open-government laws in Florida. UF journalism dean Diane McFarlin said the Center, under LoMonte’s direction, will have a broader mission incorporating the full range of media-law issues nationally affecting how news is gathered and distributed, including issues raised by evolving technologies.

During LoMonte’s nine-year tenure at the SPLC, major new programming initiatives included:

  • Organizing the “Tinker Tour,” a nationwide First Amendment awareness tour featuring civil-liberties icon Mary Beth Tinker, which during the 2013-14 school year reached more than 200,000 people across 31 states.
  • Leading the charge to enact reform legislation protecting students and educators against institutional retaliation for their journalistic work. The “New Voices” movement has resulted in enactment of fortified legal protections in Illinois, Maryland and North Dakota, with bills pending in 11 states, and has left behind student-led grassroots organizations in each state to keep watch over abuses of journalists’ rights.
  • Launching the Active Voice project to raise awareness of the impact of school censorship on leadership development opportunities for young women, and creating a paid fellowship program for college undergraduates across the country to design replicable “press freedom service projects” amplifying the voices of young women in their communities.
  • Harnessing the SPLC’s journalistic talent to create original investigative reporting focusing on issues of school and college transparency, including the 2014 “Campus Insecurity” series published in The Columbus Dispatch that captured top national honors from the Society of Professional Journalists and the AP Managing Editors.

“I’m excited and inspired by Dean McFarlin’s vision that the Brechner Center can serve as the nation’s preeminent source of scholarship identifying the barriers that inhibit journalism, mapping the way toward solutions, and bringing together the stakeholders who can make change,” LoMonte said. “I see this move as a continuation of the leadership role that the SPLC has taken in creating the New Voices campaign to reform state laws to protect student journalists, a movement that’s been nationally recognized as a model for how to advance the rights of journalists even in challenging times. I plan to bring that same approach to my work at Brechner, and to continue being the #1 cheerleader for New Voices and all of the SPLC’s initiatives.”

LoMonte said the move comes at an opportune time for the SPLC because of its especially strong and engaged Board leadership, increasing financial stability, and carefully considered five-year Strategic Plan, all of which will optimally position the new Executive Director to succeed.

Jane Eisner, editor-in-chief of The Forward and chair of the SPLC’s Board of Directors, said a nationwide search for a replacement is already underway and the Center is confident of having a highly qualified leader in place by Aug. 1 to ensure a seamless transition. Eisner said the Center is fortunate to have a deeply talented staff, including longtime staff attorney Mike Hiestand, to continue providing responsive service to the thousands of students and educators who depend on the SPLC as their “general counsel’s office.”

“It's hard to imagine the SPLC without Frank — except that he's leaving the organization as strong and as relevant as it's ever been,” Eisner said. “Protecting the rights of journalists in high school and college is a driving passion for all of us, and I am thrilled that Frank will remain involved with SPLC from his new position at the Brechner Center. I know that the First Amendment will continue to have a smart, analytical, and tireless champion in Florida and beyond.”

LoMonte said working with the SPLC’s board, staff, volunteers and constituents has been “the most fulfilling professional experience of a lifetime,” and noted that the SPLC has been through many evolutions in structure and leadership during its 43-year history, but has always remained strong, vibrant and relevant.

“The culture of the SPLC is unique among legal-services and press-freedom organizations, because no one needing help is ever turned away. We don’t cherry-pick our cases and we don’t brag about our victories. We almost always do our work quietly and behind-the-scenes, because that’s safest for the teachers and students whose safety is our only concern,” LoMonte said. “The integrity of that culture is what differentiates the Student Press Law Center from all other civil-liberties and press-freedom organizations. That integrity is what our supporters value, and that will endure no matter who puts on the cape next.”

“Of everything we’ve accomplished during these nine years – laws passed, court cases won – I’m most proud of the difference we’ve made in the lives of thousands of teachers and students who’ve called for help when they felt like nobody else was on their side,” he said. “I’ll remember the transgender student in Louisiana whose high school was going to exclude him from the yearbook for being ‘too controversial.’ I’ll remember the teacher in Missouri who came within hours of being fired because his students challenged their college’s deceptive crime reporting. I’ll remember that the SPLC turned those situations around, and hundreds more like them, giving hope to people when things seemed most hopeless. And I’ll remember the genuine gratitude that people always went out of their way to show. Just the other day, a teacher stopped me at a workshop in New York and said, ‘You’ve saved my job at least three times.’ As a public-interest lawyer, you can’t ask for any greater reward than that.”

Since 1974, the Student Press Law Center has been devoted to educating high school and college journalists about the rights and responsibilities embodied in the First Amendment, and supporting the student news media in covering important issues free from censorship. More information is online at: www.splc.org

Dispatch files new arguments in case seeking Pike County autopsy reports

From The Columbus Dispatch The Pike County Coroner cannot withhold the final autopsy reports of eight Rhoden family members killed nearly a year ago because he never discussed those reports with law enforcement officials, The Dispatch argued in a court filing on Friday.

That's important because Coroner David Kessler has said the reports are confidential law enforcement investigatory records, and that releasing them could jeopardize the investigation. But Kessler is not a law-enforcement officer and testified that he never discussed with law enforcement whether the records contained confidential information, the newspaper's lawyers argued in a filing with the Ohio Supreme Court.

"Kessler testified that at no time did any law enforcement personnel inform him or advise him that ... the autopsies contained confidential information or, if disclosed to the public, would have had any effect on the ongoing murder investigation," Marion Little, attorney for The Dispatch, wrote in the filing. The newspaper is seeking release of the documents under Ohio's Open Records Act.

Eight Rhoden family members — Dana, Hanna, Kenneth, Gary, Clarence "Frankie," Christopher Sr., Christopher Jr. and Hannah Gilley — were shot in the head. Seven were shot more than once. No arrests have been made in the April 22, 2016 killings.

After The Dispatch sued in August seeking access to the autopsy reports, Kessler released heavily redacted versions in September.

"The evidence now being presented to the Supreme Court clearly supports the position we have taken from the start — that autopsy reports are public records," said Alan D. Miller, editor of The Dispatch. "It demonstrates that autopsy reports are routinely made public in Ohio during the course of active investigations.
"Our goal with this legal action is to ensure that public officials follow the law and, more specifically to Pike County, that they provide access to public records that could shed light on the circumstances — and perhaps even the perpetrators — of a high-profile, unsolved homicide case."

Marietta schools, government offices make all sorts of information available

From The Marietta Times Since 1954, meetings held by any government agency, elected board or appointed commission have been open to the public across Ohio.

Then in 1963 those entities’ records were required by the state legislature to be available upon request to the public.

But in the more than 50 years since those “sunshine laws” were passed, the way society communicates, records and stores information has evolved at an accelerating rate.

“It’s not even just emails and basic browsing on your desktop anymore,” said Jon Grimm, vice president of Grimm Scientific in Marietta. “People are more and more looking information up on their phones and expecting to find everything they need from forms to calendars to paying their bills online.”

Nowadays, Internet databases, email communication and online calendars have become second nature to many as a tool for research and monitoring of public movement.

But there is only one public record required to be made available online in the state.

According to the Ohio Revised Code, sex offender records must be posted on a public website without waiting for an individual public records request.

“How often we update depends upon when a registration status changes or when new offenders move into the area, it’s on an as-needed basis,” said Washington County Sheriff Larry Mincks. “And we do send an officer out every one to two months to confirm their addresses. If they don’t register with us or register a change of address we do charge them.”

Parents of minors especially utilize the site.

“I have checked twice in the past for my neighborhood and another neighborhood where my child and other children I care about have spent time,” said Amy Elliot, of Marietta. “There were a couple that I was worried about and wanted to make sure I knew their descriptions.”

Likewise Susie Evans, of Marietta, was concerned when she had heard that a convicted sex offender had moved into her neighborhood.

“I heard that one had moved into my neighborhood and I wanted to make sure I knew where for the safety of my kids,” she said.

Though the sex offender data is the only required public record outlined by the ORC to be made available online, the ORC also notes that county auditors’ websites may be seen as fulfilling the public records request law.

By posting maps, reports, forms, delinquent taxpayer lists, property ownership data, a levy calculator, property transfer procedures, previous tax rates and unclaimed funds, Washington County Deputy Auditor Matthew Livengood said the office utilizes the Internet to provide public access to information.

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Articles and editorials from Sunshine Week 2017

Sunshine Week runs from March 12 to 18, 2017. Many thanks to all the ONA member papers who published news and opinion pieces about the importance of open government and freedom of information. Below is a partial listing of open government articles and editorials published in Ohio newspapers during Sunshine Week.


Editorials and columns

Trumbull prosecutor fights attempt to expunge record of care provider

From The Vindicator The Trumbull County Prosecutor’s Office is asking a judge to deny the sealing of records, known as expungement, for a Southington woman who was indicted in the 2011 death of a baby in her care.

Sarah Kaiser, 35, of McConnell East Road, was indicted on charges of murder, felonious assault and child endangering in December 2011 after a boy, 3 months, died June 6, 2011.

The boy died at Akron Children’s Hospital of abusive head trauma. He was taken there after being discovered not breathing at 1 p.m. June 1 at a Newton Falls day-care facility.

Kaiser was the sole care provider for the boy for about 90 minutes June 1, 2011, just before the boy stopped breathing, according to Vindicator files.

The Summit County Medical Examiner’s Office ruled the death a homicide Sept. 15, 2011.

But in October 2012, Judge Peter Kontos dismissed the charges against Kaiser at the request of the county prosecutor’s office, which said information it received after Kaiser’s indictment raised questions about whether they would be able to prove Kaiser’s guilt.

The charges can be refiled at a later time, the judge indicated. Murder has no statute of limitations.

Judge's order blocks release of SW Ohio school shooting video

From The Blade A judge has temporarily blocked a sheriff’s office from releasing video that captured a nonfatal shooting by a 14-year-old student at a southwestern Ohio school last year.

The Cincinnati Enquirer reports a judge this week granted Madison Local Schools a temporary restraining order to block the Butler County Sheriff’s Office from releasing the footage to the newspaper or other media. The Associated Press is among the media outlets that requested the video.

Another hearing is set for later this month.

Two students were wounded by gunfire in the February 2015 shooting, and two others were hurt by shrapnel or while running away.

The shooter, James Austin Hancock, pleaded guilty to charges including attempted murder and was sentenced to spend six years in a juvenile facility.

Beacon Journal goes to court to answer a fair question

By Bruce Winges, The Akron Beacon Journal It was a brutal crime.

On New Year’s Eve 2013 two men broke into a Barberton home to try to take a small amount of drugs and money. A father, his teenage son and the boy’s sister were murdered. A woman survived despite being left for dead after being shot and stabbed in the face.

Two brothers were found guilty of the crimes. Michael Hendon, the younger of the two, was sentenced to life in prison after being found mentally unfit to be put to death.

Then came the trial of the older brother, Eric Hendon. He was found guilty of being the “principal offender” in the triple murder.

Jurors had four options for the sentencing phase of the trial: death, life without parole, life with parole possibility after 30 years and life with parole possibility after 25 years. After deliberating seven hours, the jury spared his life, recommending life without parole. That was his sentence handed down by the judge.


It is a fair question. What were the jurors thinking when they decided to spare the life of a principal offender in a triple murder? After all, prosecutors had argued that Eric Hendon rather than his brother was the shooter. Yet both men received the same sentence.

Just as important, it is a question to be answered if we are to maintain our trust in our system of justice.

We are held accountable for our actions by juries of our peers. Our courts are held accountable by our Constitution and a tradition of transparency. We have public trials in our country.

Our court reporter, Stephanie Warsmith, asked for the names of the jurors so she could talk with them about the verdict. Under the First Amendment and case law that has evolved over decades in our courts, you the public and, by extension, we in the press are entitled to that information. It is not unusual to interview jurors after they render a verdict.

We ran into a roadblock from Common Pleas Judge Amy Corrigall Jones. She initially refused to release the names of the jurors, relying upon an Ohio Supreme Court case in which the Beacon Journal successfully sued another Summit County judge to gain access to the names of jurors. In State ex rel. Beacon Journal vs. Bond, the court affirmed the presumption of openness to court proceedings — including access to juror information. Overcoming that presumption is a significant hurdle, and a judge must hold public hearings on the issue.

So in response to Warsmith’s request, Jones sent letters to the jurors telling them that:

• A Beacon Journal reporter had requested their names.

• They were not required to talk about the case with anyone.

• She would hold hearings where they could give reasons why their names should not be released.

That resulted in hearings held over two days where many of the Hendon jurors pleaded to remain anonymous. The Beacon Journal hired a lawyer, Karen Lefton, to represent the public’s interests. Lefton wrote in a legal brief that there is a well-established legal standard to protect the privacy of jurors — usually when their safety is threatened — and that standard was not met. In the end — weeks after the trial left the front pages of the Beacon Journal — Jones agreed that none of the jurors was able to articulate a reason sufficient to overcome the presumption of openness. As required by law, she then released the names.

Why did we go to all that trouble?

We wanted to ask about their thoughts regarding the sentence they recommended for Eric Hendon and their experiences as jurors on a death penalty case. Answering those questions helps us better understand our system of justice.

In the end, public records such as the names of jurors belong to the public, not a judge or any other public servant.


Alan Miller: Public records shed light on heroin crisis

By Alan Miller, The Columbus Dispatch A small item in Gov. John Kasich's budget proposal caught our attention.

He wants to allow counties to create committees to review opioid overdose deaths.

Good idea. Ohio is awash in heroin and other opioids, and they are killing people at an alarming rate.

The weeklong Dispatch series "Heroin's hold on us," published in September, showed the stunning effects throughout virtually every neighborhood.

Among the things we learned during the reporting for the series is that the Franklin County coroner already employs such a review board. The idea is to learn as much a possible about those who die by opioid overdose in hopes of finding better ways to keep addicts alive — and maybe even keep them from becoming addicts.

As stated in the budget proposal, the purpose of the review committee would be to to decrease the incidence of preventable overdose deaths by promoting cooperation, collaboration, and communication among all groups, professions, agencies, or entities engaged in drug-abuse prevention, education, or treatment efforts.

It also would maintain a database of victims' names and demographic information, where deaths occurred and contributing factors. It would recommend plans for implementing or adjusting local programs to help prevent overdose deaths. And it would advise the Ohio Department of Health by providing aggregate data, trends, and patterns concerning overdose deaths, all of which would be available to the public.

Excellent goals, but there's a catch: The budget language says that committee meetings would be closed to the public and any records the committee would review would be shielded from public disclosure.

This is a big problem.

Many of the records such committees could review already are public records. Without clarity on that point, we are left to wonder whether records currently considered open and available for public inspection, such as police reports and autopsy records, would become secret.

Further, we are left to wonder why those meetings or the details of these tragic deaths should be shielded. The point is to save lives by understanding how and why people died.

Here's an example of why it's important for the public to see those details: The 2015 Dispatch series "Silent Suffering," which examined the suicide crisis in Ohio and across the country, was built on a foundation of information obtained by reporters who reviewed hundreds of public records documenting the deaths of people who died by suicide.

The public — you, our readers — learned many important facts about suicide because of the information in those records. You learned, for example, that since 2000, more than 20,000 people have died by suicide in Ohio — nearly triple the number of homicide victims.

We learned that more than 80 percent of those who took their own lives were male. Middle-age men, ages 45 to 64, account for nearly a quarter of all suicides. The youngest victims were just 8 years old — and there were three of them.

And even though the state's suicide rate dropped in 2014 to its lowest point in more than a decade, it still accounted for 10.8 deaths per 100,000 people. That meant that more than three Ohioans died by suicide every day that year.

With access to public records, we were able for the first time to get a broad picture of the details behind suicide — "how many had suffered with mental illness, or had a relative who died by suicide, or had a serious medical condition and suffered chronic pain. It was a pull-back-the-curtain look at the factors that led to 20,000 deaths," said Mike Wagner, one of the Dispatch reporters who spent weeks looking at the records.

The records included some of the information that the review committees would shield, such as investigators' notes about conversations with family members and neighbors who knew the victims well. "You really understood why people felt like they felt and why they were in the situation that led to suicide,'' Wagner said. "It was those details that made readers say, 'Oh, my God; yes, I know someone who is on that road and needs help.'"

And we heard this repeatedly after the series: "What you wrote saved my life."

They said that because they could see themselves in the details about those who didn't make it, and those details jolted them into action. They sought help before it was too late.

"Some coroners and prosecutors were skeptical, and some tried to block our path to those records," Wagner said. "But some of those same officials complimented us after the series was published. They could see the value.

"The bottom line is that without those records, we couldn't have done that series," he said. "We could have written stories about the numbers of deaths, but it was the details about individuals that made the difference. People don't respond to numbers. They respond to people they can relate to."

We applaud the effort to create committees to review opioid overdose deaths, but we urge openness when it comes to access to the details. Because they will save lives.

Ohio program helped reporter get public records from OU

From The Athens News

In Ohio, what do you do when a public agency flat out ignores your request for public records?

Usually, if you don’t have access to an attorney and large sums of money to fight the agency in court, you don’t have much recourse, other than to continue bugging the person in charge of those records until he or she relents or the sun explodes.

Well, that’s the exact situation The Athens NEWS finds itself in on occasion, most recently with my good ol’ alma mater, Ohio University. But luckily, a relatively new program through the Ohio Court of Claims is here to help. More on that later.

Under Ohio’s Public Records law, which I actually know pretty well (being a nerd for these kind of things), a public agency must provide you with all or part of records you request if they are indeed determined to be public documents under those laws. The main problem that arises when I’m making these requests? The public agency (OU’s legal office in this case) is the one that gets to decide what is public and what isn’t.

Case in point (and the reason why I’m writing this column): OU has been undergoing a search for its next president since last summer. The Board of Trustees is set to vote this Wednesday on appointment of the university’s next president, likely to be Duane Nellis of Texas Tech University (he’s the last candidate standing at this point).

Nearly 12 weeks ago, on Dec. 1, I requested records of the curriculum vitaes of people whom I knew the university would be interviewing for the position during a meeting at OU’s Dublin Campus later that month. I did not know the identities of these potential candidates but did know from other received records that they would meet with OU’s search committee in early December.

For more than two months (Dec. 1 – early February), the university’s legal office under General Counsel John Biancamano ignored my request for those records. They didn’t even do us the courtesy of explicitly denying the records, which is part of what public agencies are required to do under the records law if they do not think the records are public, or otherwise do not have them.

At one point after weeks of my emailing and asking for a response, OU’s records clerk herself asked Biancamano, “Are we responding?” in an email that appeared to have accidentally CC’d me. Oof.

Complicating matters is the fact that the university had hired a private search firm for about $150,000 to help conduct the search process. Often, these search firms have their own databases of executives throughout the higher-education world who, while not actively applying for jobs elsewhere, are still interested in learning more about positions at other institutions. Still, under Ohio law, private firms can hold records that by law are considered public, provided they are doing the business of a public agency.

So, we made a complaint through the Ohio Court of Claims. After an initial flub (I forgot to send in the $25 application fee – whoops!), the process got underway pretty quickly. Just about a week later, the Court of Claims informed me that the process would go forward to “mediation.” The point of this complaint/mediation process is actually a lot less scary than you’d think – it’s not a lawsuit, and you don’t need to know a whole lot about the law in order to get a positive result. The entire point is for you and the state agency you have requested records from to be questioned by a neutral, third-party mediator (who is an expert on public records) on the intent of your request, what records the public agency actually has available, and talking through whatever stumbling blocks the public agency faced that may have caused it to delay or decline to provide the records.

My end result? We got the records – just last week, actually. I can’t talk much about the mediation process because it is confidential (which is a plus for both sides, but especially the public agency who may want to save face), but safe to say, I’m happy. We received record of the CVs of five semifinalist candidates last week. And you know what? I’m not even going to report on the names of those semifinalists. They’re no longer being considered for this position, and it’s not fair to put their names on blast. My complaint was never about them: It was about this university providing information that is unquestionably a matter of public record, as it is obligated to do under Ohio law.

Mark Reed, clerk of the court at the Court of Claims, explained last week that the records mediation process is meant to be accessible and non-adversarial, because journalists often are the one needing the aid, and the journalists sometimes have long-standing relationships with agencies from which they request information.

Similarly, Reed, who was the mediator in my case, knows the records law incredibly well – so long as somebody’s complaint is valid (meaning public-records law backs you up), he will help you get the records. That includes members of the public, who Reed said already have found some success through the program.

“The best place for people to start is to look at the Court of Claims website,” Reed said. “We have a lot of information on our website about how to do it.”

Streetcar crash reviews should be public records, lawmaker says

From The Cincinnati Enquirer Why did the Cincinnati Bell Connector crash into a cement truck or a Metro bus? Current Ohio law shields details from the public.

Rep. Tom Brinkman, R-Mount Lookout, wants to change that. He hopes to eliminate a 21-year-old law that prevents the streetcar's riders from reading internal crash investigations and safety audits.

Under current law, Southwest Ohio Regional Transit Authority must conduct annual safety audits of the streetcar, and the Ohio Department of Transportation must perform periodical, on-site safety reviews. But none of those records are available for public inspection – unless the ODOT director grants an exception.

Internal investigations into each crash are reported to ODOT, but the public can't inspect them either because state law forbids disclosure. In its first months, the streetcar was involved in 10 traffic accidents and another four safety “incidents.”

"Our streetcar has been using that as an excuse for not giving us the records," said Brinkman, a longtime opponent of the streetcar project.

SORTA can, and does, release basic information on each crash. When the streetcar collided with the cement truck and Metro bus on Nov. 1, SORTA gave details about both crashes and how long service was suspended in a news release. What was missing: what actually caused the drivers of the vehicles to collide.

"We are not permitted to say anything beyond the basic facts. State law does not let us go beyond that," said SORTA spokeswoman Sallie Hilvers, adding that the transit authority would comply with whatever Ohio law requires.

If a crash occurs on city streets, Cincinnati police would write an incident report, which would be available for public inspection. That report might come to the similar conclusions as the transit authority's internal review would, but it wouldn't include the safety audits from transportation officials.

It was not clear why the records for streetcars and other light rail operations were shielded from public view more than 20 years ago when only Cleveland had a rail system. ODOT spokesman Matt Bruning suggested the reports might contain security information that should not be disclosed.

Brinkman's change was added into the state's transportation budget, which passed out of a House committee Thursday. The budget still needs approval from the Ohio House and Senate, which are controlled by Republicans.

As FBI, others move to FOIA portals, email options disappear

From The Reporter's Committee for Freedom of the Press The Federal Bureau of Investigation no longer will allow individuals seeking public records under the Freedom of Information Act (FOIA) to file requests via email, according to several reports, and several other agencies are following suit.

The FBI's FOIA page already has removed any mention of an email submission option, though it has notified some requesters that it will allow email requests until the end of this month. According to the agency page, requesters now have to submit written requests by fax or standard mail, or they can use an online portal system called eFOIA. The FBI used to allow for requests to be filed via email in addition to the online portal system.

“With this full implementation, eFOIA will provide the FBI with an automated process for the receipt and opening of requests,” said that FBI in an emailed statement to the Reporters Committee. “Given the FBI’s high volume of requests, this will significantly increase efficiency.”

The FBI made no comment regarding why fax and standard mail will still be allowed, while email, the most ubiquitous form of communication, will not.

The Daily Dot first reported last week that the FBI would also place limits on the new eFOIA portal: only one request could be filed per day, only certain types of requests could be fulfilled, and requesters had to disclose personal information to process the request on the portal. The news site issued an updated report the next day, however, saying that once the system is running the FBI will allow multiple requests per day, allow requests of all types, and limit the amount of personal information that needs to be disclosed on the form.

Still, many open government advocates are expressing concerns about the FBI’s decision to stop allowing emailed FOIA requests, even with the promised revisions to the portal. Senator Ron Wyden of Oregon, a long time government transparency advocate, wrote a letter to the FBI’s Record Dissemination Section last Thursday urging the FBI to continue accepting emailed requests. In the letter, he points out that the revisions to the portal do not correct all of its limitations, and argues that this change in policy “may place an unnecessary burden on those requesters who must now send requests to the FBI by fax or letter.”

Notably, while the FBI issued a statement regarding revisions to the limitations of the site on Tuesday, it did not issue a statement when it initially removed the email option. Journalist Michael Best said that he first realized that the FBI had changed their policy when he attempted to file a FOIA request via email. The FBI’s email response included notice of the change.

“I found a FOIA email they sent from Thursday with the notice slipped in there,” he told the Reporters Committee. “The closest they came to announcing it on their website was removing information about submitting through email and (I believe) all copies of the FOIA request email address.”

The FBI is not the only government agency to remove its FOIA request email option from its website without notice. Journalist Christopher Collins told the Reporters Committee that he tried to file a FOIA request with the U.S. Customs and Border Protection using an old email address. When he sent the email, it bounced back to him, with a notice that read, “This email address is no longer accepting correspondence” and directed him to an online FOIA request portal.

Like the FBI, the CBP published no information on its website regarding the change in policy. A spokeswoman for the CBP told the Reporters Committee in a phone interview that “the web portal helps them keep track and report on the inquiries they’re getting.”

When asked why the CBP still allows a mail and fax option, but not an email option, Mosher said, “I believe that the law requires the mail option and until they update the law to require email, it’s not required.”

Unlike the FBI, the CBP does not have its own online portal system. Instead, it uses FOIA Online, an online portal used by fifteen government agencies. Of the fifteen, only four still allow for emailed FOIA requests. The others rely solely on the portal, fax, and standard mail. Among the 11 FOIA Online agencies that have recently stopped accepting emailed FOIA requests are the Environmental Protection Agency, the Department of Commerce, and the Federal Communications Commission.

An FCC official said that the Commission stopped accepting emailed FOIA requests in 2015 “as part of a general update to its FOIA regulations.” The EPA and Commerce did not respond to the Reporters Committee’s request for comment.

Gov. Kasich's budget would block access to heroin death reviews

From The Cincinnati Enquirer Gov. John Kasich's budget would give counties a new way to review drug overdose deaths, but many components of those investigations into Ohio's drug epidemic could be shielded from public view.

Ohio leads the nation in opioid overdose deaths. More than 3,000 people died in 2015 because of fatal drug overdoses – a number that has increased each year since 2009, according to state health department records.

To better understand these deaths, Kasich has proposed allowing counties to create drug overdose fatality review committees. These committees would dig into the details of each overdose death in the county and maintain a database, which would include victims' demographic information, where the deaths occurred and what factors contributed to the overdoses. Each year, the committees would submit a report to the Ohio Department of Health, summarizing the data.

Absent that annual report, the public would have little access to those committees' findings on overdose deaths in their communities. Under Kasich's proposal, their meetings would be closed to the public. Any records they would review, from medical histories to coroners' reports, would be shielded from public disclosure.

The problem: Some of those records are already public – and would continue to be if they are requested from other sources. Police reports, autopsy records and death certificates are all available for public review. Other records the group would review, such as a victim's private medical records, are not open to the public.

So why shield from the public all the documents the committee is reviewing?

Advocates for access to public records fear Kasich's plan cuts off access to important information about Ohio's drug epidemic. Ohio Department of Health officials say the exclusion is necessary to protect private health records, which are already shielded from state public records' laws. Allowing people to see what public documents the committee is reviewing might reveal the identity of the people whose deaths the group is investigating, Ohio Department of Health spokesman Russ Kennedy said.

Kasich's staff modeled its proposal after counties' child fatality reports, which are largely shielded from public view until completed.

Members of the overdose review committee, which could include coroners, state representatives, physicians or local mental health board members, would get access to records earlier than the public to understand these deaths more quickly.

"The whole point is to help provided a more comprehensive understanding of circumstances surrounding overdose deaths," Kennedy said.

Just not to the average Bob and Betty Buckeye.

"The public should have access to the information of the important work of this committee," said Dennis Hetzel, executive director of the Ohio News Media Association.

This is one of several changes Kasich has proposed making to public records law, including:

  • If the Ohio Lottery Commission orders an internal audit, that document and any records created by staff would not be available to the public until they have been submitted to the members of the commission.
  • The records of independent Medicaid providers would be confidential.
  • Patient information in pharmacy board investigations would be confidential, so that the details are not subject to discovery in civil lawsuits, for example.

Journalists around the country are joining a Slack channel devoted to FOIA and Trump

From Poynter A few days before President Trump's inauguration, MuckRock opened up a Slack channel to help journalists better cover him and his administration.

As of Wednesday, 250 people signed up. Most are journalists, about half from national newsrooms and half from local newsrooms around the country. Update: As of Monday, 3,000 people have signed up.

"Anytime we have a new administration, there's turnover and there are changes," said Michael Morisy, MuckRock's co-founder. "I always think it's important for reporters to get an understating of what that new administration's priorities are. I think that's true no matter who's taking office."

The open-government nonprofit first launched the channel with a small group of people about a week after Trump won the election. The channel works to help build requests, workshop ideas, ask questions and share results. It's a collaborative approach for journalists that MuckRock has seen more of in the last few years.

MuckRock isn't the only organization putting forth ideas about how journalists can work together to cover the new president.

On Tuesday, Panama Papers journalists wrote for The Guardian about the need for both collaboration and solidarity in covering Trump. NPR stations nationwide are also working together to cover state government.

"It's still a challenge, and it will continue to be a challenge," Morisy said, especially in a tough business environment. But those same forces can also drive collaboration.

There's already a strong community of open-government advocates, journalists and citizens who want to know what elected officials are up to. The Slack channel offers another outlet for that, Morisy said.

Related Training: Access Denied: Your Rights When Government Shuts Media Out

Kelly Hinchcliffe, a WRAL reporter and FOIA columnist for Poynter, said she hasn't tried the new channel yet, but she's interested to see how it works. She often turns to colleagues for help with FOIA requests, and she's on IRE’s NICAR listserv, where people ask questions now and then.

"Hopefully this will help reporters and others make requests more easily and learn more about the FOIA process. I’ve been making FOIA requests for years and still need advice every once in awhile."

There are currently more than 90 active members and about 90 percent are journalists. Morisy is sending out invitations to people who've asked to join the group, and he plans to watch the channel closely to make sure people are respecting members' privacy and behaving themselves.

MuckRock already has several resources for journalists covering Trump, including past findings about Trump and his cabinet picks.

The timing looks to be just right with the new administration's push this week to remove some data sets from government websites and new restrictions on how one agency can communicate with the public and the press, Morisy said.

"I think making sure the public has access to what the government is up to is more important than ever."

Frontier Local school district mum on conceal carry program

The Marietta Times The administration for the Frontier Local school district says they won’t release the number of employees who have applied to carry guns while at school or how many are actually in possession of the weapons.

While there have been arguments that such information would fall under public information under Ohio’s laws, most experts say that it doesn’t–or that it least falls into a gray area not clearly defined. A recent Ohio law says that names of those carrying concealed weapons in schools should not be revealed but does not specifically address whether other information–such as how many employees are approved to do so–should be released.

The Frontier board passed a policy in December that allows employees approved by the superintendent to have concealed weapons in district buildings.

“Each district that has approved this policy is handling it in their own way,” said Dick Caster, safety and security consultant for the Ohio School Boards Association. “Some have publicly said they have armed staff and released specifics on what they’re doing while some districts haven’t said anything.”

Brian Rentsch, superintendent for Frontier Local Schools District, said that releasing the numbers associated with those carrying weapons on school grounds is against the confidentiality portion of the program.

“I will not and cannot divulge that information,” he said.

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Surviving victim loses appeal of release of records in triple-murder case; Ninth District says issues are moot

From The Akron Beacon Journal The surviving victim of a shooting rampage that left three others dead has lost her appeal of the release of her medical records and other personal information during a capital-murder trial last year.

The Ninth District Court of Appeals ruled Tuesday that the issues Ronda Blankenship raised in her appeal were moot because she provided the requested information to the court during the trial that has now concluded.

Eric Hendon was convicted of the New Year’s Eve 2013 triple murder and sentenced last May to life in prison without parole. Blankenship was stabbed and shot in the face, but survived. Her boyfriend and his two teenage children were killed.

Blankenship was required during Hendon’s trial to turn over a wealth of personal information, including her medical and psychological records, cellphone, laptop and Facebook and email passwords. Elizabeth Well, Blankenship’s attorney, argued this information shouldn’t have been provided without giving Blankenship the chance to challenge its release in court.

Well, who works for the Ohio Crime Victim Justice Center, a Columbus-based nonprofit that provides legal help to crime victims, argued the case before the Ninth District in August. Her main objection was that the records were sought from Blankenship through discovery rather than by subpoena. If they had been subpoenaed, Well said Blankenship could have challenged their release and had a hearing.

Well said the release of the records violated the attorney-client privilege, doctor-client privilege and Blankenship’s privacy rights.

Appellate Judges Beth Whitmore, Donna Carr and Julie Schafer noted the uniqueness of the case when they heard it. Carr said she has “never seen a case like this in 20 years on the bench.”

Schafer, who wrote the court’s opinion, said this uniqueness diminishes the likelihood that the same issues will arise.

Well, who couldn’t be reached Tuesday afternoon, previously said an unfavorable ruling by the appellate court would be appealed because of the potential ramifications for crime victims across the state.

Don Malarcik and Brian Pierce, Hendon’s attorneys, previously said they thought Blankenship’s appeal was moot because Blankenship provided the requested information to Summit County Common Pleas Court Judge Amy Corrigall Jones during the trial for an “in-camera” or private inspection.

“The judge carefully balanced Ms. Blankenship’s desire to keep certain things from the defense versus an accused’s right to a fair trial,” Malarcik said. “Had the court withheld these records, any conviction would have been overturned and a new trial ordered.”

Summit County Prosecutor Sherri Bevan Walsh also weighed in on the issue.

“Since the very beginning we felt the defense attorneys in this case went too far in requesting personal information about the victim,” Walsh said. “Ronda suffered through an unspeakable trauma; stabbed, shot and left for dead after her boyfriend and his two children were shot and killed. She should not have been victimized a second time.”

Geauga-Trumbull waste district committee has do-over after meeting questioned

From The Vindicator The hiring committee of the Geauga Trumbull Solid Waste District had a short do-over meeting to address questions raised by The Vindicator about a closed-door meeting it had last week to narrow down candidates for its director’s job.

The committee also interviewed seven finalists for the job, which will pay $68,000 to $75,000 annually. The board has narrowed down its choices to recommend to the full district board, consisting of the six county commissioners from Geauga and Trumbull.

They will meet at 1 p.m. Tuesday at the district offices on Enterprise Drive Northwest to hire someone.

Atty. Greg O’Brien, the district’s legal adviser and a member of the hiring committee, said today he still doesn’t think the committee did anything improper when four of its seven committee members discussed job applications in private Jan. 17 without convening the meeting as a public meeting or voting to close it to the public.

After the meeting, committee members said they had narrowed down the candidates from 24 to seven.

When The Vindicator asked O’Brien in the midst of the Jan. 17 meeting whether it was a public meeting, O’Brien said it wasn’t because not enough members were present, but the newspaper’s attorney advised that it did appear to meet the requirements to be a public meeting under Ohio’s open meetings law.

East Cleveland school board settles with board member for $100,000

From The Plain Dealer East Cleveland's school board settled a dispute with member Patricia Blochowiak by agreeing to a list of changes to better comply with open government laws and reimbursing Blochowiak $100,000 for legal fees.

Blochowiak sued the board in 2014, accusing it of holding illegal closed-door meetings and keeping improper minutes, among other complaints, according to a press release from the Chandra Law Firm.

The allegations relate to Ohio's Open Meetings Act, which requires that a public body, such as a school board, discuss business in open meetings except in limited circumstances, where an "executive session" can be held.

The complaint Blochowiak filed includes claims the board improperly handled the evaluation of the superintendent and treasurer and held numerous executive sessions without stating a proper purpose. The complaint also claims a singular board member made spending decisions for a 2013 board retreat, instead of it being discussed and approved in open meeting.

Read the full amended complaint in the document viewer at the end of this post.

The settlement includes correcting past minutes, rescinding certain policies regarding superintendent and treasurer evaluations, attending regular open-government training, along with other requirements for the board.

The settlement comes two weeks before the case would have come to trial, according to the press release.

"This agreement holds the board accountable for betraying the promise of open government, and is a victory for democracy," Subodh Chandra, lead counsel for Blochowiak, said in the release. "Schoolchildren and their families deserve to know and understand their public officials' decisions--good and bad--and how they made those decisions."