Here are a summary of Ohio open government headlines from the last month:
Here are a summary of Ohio open government headlines from the last month:
Just before 2018 ended, the Ohio Supreme Court handed down four decisions that will immediately enhance the public’s right to know what its state government is up to. In all four cases, Justice Sharon Kennedy wrote the majority opinion, and in each case, she was joined by Justices French, DeWine and DeGenaro. Considering these opinions, combined with her passionate dissent in the Court’s decision (rendered in late 2017) denying the public access to the autopsy reports in the Pike County murder cases, it seems Justice Kennedy has decided to take a leading role in the area of transparency. There were several critical findings in the cases.
1. Attorney Fees
The four cases were notable for several reasons, including the fact that in every case, the Court awarded attorney’s fees to the requesting party. While the Ohio Public Records Act has always provided for an award of attorney’s fees, the Court has on many occasions declined to award attorney’s fees to a prevailing requester, even in cases where it ordered production of the records. If the four cases decided in December represent a trend, that trend seems to signal a greater willingness to award fees.
In State ex rel Rogers v. Department of Rehabilitation and Correction, 2018-Ohio-5111, Justice Kennedy noted:
“’Inherent in Ohio’s Public Records Law is the public’s right to monitor the conduct of government.’ . . . The expense of litigation can chill the exercise of that right, so R.C. 149.43 recognizes that it is appropriate to award attorney fees to members of the public who pursue litigation to force public offices to release governmental records that are, in fact, public. The availability of attorney fees is a check on a public office’s ability to inappropriately deny a public-records request and choose instead protracted litigation.”
a. Questionable Exemptions Won’t Fly
The Rogers case demonstrates this philosophy. In the case, Rogers requested security-camera video footage related to a use-of-force incident at Ohio’s Marion Correctional Institution. The Ohio Department of Rehabilitation and Correction (”ODRC”) denied the request relying on statutory exemptions for “infrastructure records” and “security records.” The Court ruled that both exemptions lacked merit. The footage, shot from a mounted camera in plain view did not disclose any critical systems of the prison, and at most displayed a “simple floor plan.” The Revised Code expressly provides that a simple floor plan is not a “critical system.”
Security records, per the Revised Code include “portions of records containing specific and unique vulnerability assessments or specific and unique response plans either of which is intended to prevent or mitigate acts of terrorism, and communication codes or deployment plans of law enforcement or emergency response personnel.” The mounted camera disclosed nothing of the sort. Perhaps recognizing this flaw in its logic, the ODRC cited a New Jersey case to support its position. But the New Jersey case, not surprisingly, applied the New Jersey statute, which expressly included “surveillance techniques” in the definition of “security records.” The Supreme Court was not willing to compare apples and oranges.
In short, not only did the Court reject ODRC’s position, it concluded that no “’well-informed public office * * * reasonably would believe’ that the failure to produce the security-camera video complied with the Public Records Act.” And for that reason, the Court awarded Rogers his attorney fees.
b. No Response Equals Violation
The ODRC was also hit for fees in the case of State ex rel. Hogan Lovells v. Department of Rehabilitation and Correction, 2018-Ohio-5133. In that case, the Court awarded attorney fees based on the ODRC’s 9 month delay in responding to a records request. The version of R.C. 149.43 in effect at the time of the request made an attorney fee award mandatory in that instance, but even though the current version of the Act makes an award discretionary, there is no reason to think the Court would not award fees under the current version of the law.
c. Delay Violates the Law
Kent State University also was ordered to pay attorney fees in two separate cases brought by Lauren Kesterson. In State ex rel. Kesterson v. Kent State University, 2018-Ohio-5108, (“Kesterson I”) Ms. Kesterson made a records request on February 2, 2016 that included a request for records regarding training or information provided to the Kent State varsity softball team regarding Title IX, gender equity and several other related topics. Kent State initially responded by producing approximately 750 pages of records by February 25. But as it turned out, KSU had not provided all responsive records, and did not do so until November of 2016, after Kesterson had filed her mandamus action. The Court found that KSU had ultimately provided all responsive records, and dismissed the request for a writ of mandamus as moot. But significantly, it awarded attorney fees, finding that KSU’s 9 month delay in fully complying violated R.C. 149.43(B), which requires prompt production.
Kesterson’s other suit – 2018-Ohio-5110 (“Kesterson II”) presented similar facts. In that case, On April 13, 2016, Ms. Kesterson requested 21 items concerning KSU’s Title IX violations and related matters. KSU produced a substantial number of records in June, but asserted a number of exemptions, including that the requests were “overly broad.” While continuing to assert its objections, KSU produced some additional records through December 2016. Again, this delay violated the statutory duty to produce records promptly, resulting in a fee award.
The decisions suggest some key takeaways:
i. Delay is just as much a violation as denial. The fact that the requesting party eventually gets additional records, even all the requested records does not cure the delay. And the Court is willing to put the responding party’s money where the Court’s mouth is in this circumstance.
ii. Dribbling out the records is a flawed approach. There is no “congeniality” award here. And the slow drip disclosure, even in the guise of “working with” the requesting party is no defense. Public offices who prefer not to pay attorney fees are advised to gather all the records and make their decision on production sooner rather than later.
iii. If you have to get too creative when defending an exemption, you may want to consider not asserting it in the first place. Law school, not the Ohio Supreme Court, is the place to float fanciful legal theories. If you have to rely on another state’s law – especially where that law is fundamentally distinct from Ohio’s – you are asking for trouble. If the Rogers case is any indication, throwing a theory against the wall and seeing if it sticks is potentially a costly strategy.
2. Overly Broad Exemption Narrowed
Separate from the attorney fee issue, the Kesterson II case went a long way toward clarifying (and limiting) the extent of the “overly broad” objection. This objection has gotten much use over the past few years and it has limited the public’s right to know in a serious way. Public offices have almost reflexively asserted this objection whenever a requesting party has sought communications between or among public officials concerning a topic of interest. In a perfect, and perhaps simpler world, every public record request would seek a discreet, immediately identifiable record – a specific invoice, a designated police incident report, etc. But in real life, not every record lends itself to a precise identification.
Increasingly, public officials communicate with one another, about public business, via e-mail and text message. It is not uncommon for public record requesters to seek copies of such communications. In most cases, however, the requesting party doesn’t know the precise date when the communication was made, nor every recipient, nor the precise description set out in the subject line. Accordingly, requesters make a common sense request for communications between or among a designated set of officials, during a limited time frame, concerning a designated topic. And even though a simple computer search would disclose the requested record, public offices in Ohio have repeatedly claimed that such a search is “overly broad.”
In Kesterson II, the Supreme Court put an end to this nonsense. Included in Ms. Kesterson’s 21 item request were several requests seeking communications between or among a designated set of officials, during a limited time frame, concerning a specific topic. Predictably, KSU asserted the “overly broad” objection. But the Supreme Court would have none of it. As it noted:
“While Kesterson did cast a wide net for “communications,” she limited each request temporally, by subject matter, and in all but one instance, by the specific employees concerned.” . . . “In short, Kesterson did not request the “complete duplication” of anyone’s files, nor does any individual request approach the type of vague and impermissibly broad request that we refused to enforce in Glasgow, Dillery, or Zidonis.”
The clear lesson from Kesterson II is that a request for communications limited by date, subject matter and participants is not “overly broad.” And a public office that asserts an overly broad exemption to such a request will be at great risk of losing that fight and paying for the requester’s attorney fees.
There is a great quote in the case of State ex rel. Athens Cty. Propoerty Owners Assn., Inc. v. Athens, 85 Ohio App. 3d 129, where the court noted: “The basic tenet of Margolius is that a person does not come—like a serf—hat in hand, seeking permission of the lord to have access to public records. Access to public records is a matter of right.” Id. at 131. The recent Supreme Court decisions have given meaning to this sentiment. And it is good news for citizens throughout Ohio.
From The Columbus Dispatch
Ohio Gov. Mike DeWine has delayed four executions as the state revamps its death-penalty protocol. But as that work continues, state officials remain secretive about how they’ve managed to obtain deadly drugs from manufacturers increasingly adamant that their products not be used in executions.
In January, DeWine scrapped the existing protocol after a federal judge in Dayton ruled that Ohio’s protocol would “almost certainly subject (the condemned) to severe pain and needless suffering.” Beyond acknowledging that they’re working on a new protocol, state officials are saying little about how they’ve gotten drugs in the past — or how they plan to get them in the future.
In 2014, a pharmacist with the Ohio Department of Mental Health and Addiction Services testified that she obtained death drugs for the Department of Rehabilitation and Correction (DRC) and personally drove them to the Southern Ohio Correctional Facility, where Ohio’s death chamber is located. Allen Bohnert, a federal public defender representing death row inmates who are contesting Ohio’s execution protocol, said a corrections employee has testified more recently that the state is still using the procedure — which could be a way of concealing the state’s intended use of the drug from suppliers.
“It allows people at the top of the ladder to purchase the drugs without any DRC fingerprints on them,” Bohnert said.
State officials aren’t admitting anything. In fact, the Department of Mental Health and Addiction Services has yet to provide records of possible communications with suppliers of death penalty drugs in answer to a Feb. 15 Dispatch records request. Despite sworn court testimony, the department won’t even acknowledge its role in obtaining the drugs, much less what justification an agency responsible for fighting drug addiction is using to buy lethal doses.
“We are aware that Governor DeWine has suspended the previous execution protocol and has directed the Ohio Department of Rehabilitation and Correction to recommend a new protocol,” spokesman Eric Wandersleben said. “We defer any additional comment on this matter to the governor’s office and” the prisons department.
DeWine spokesman Dan Tierney deferred “comment to DRC on the progress of their work under this directive.”
JoEllen Smith, spokeswoman for that agency, said it will “take the time necessary to develop a protocol that ensures the process remains lawful, dignified and humane ... We cannot comment further because of pending litigation.”
Smith didn’t respond when asked under what legal rational DRC was not responding to questions about the death penalty protocol, which has been the subject of near-constant litigation.
Monday, an expert said that Ohio could face even more litigation if it’s using the Department of Mental Health and Addiction Services as a straw purchaser of execution drugs.
“It raises all sorts of questions about breach of contract and fraudulent inducement,” said Robert Dunham, executive director of the Death Penalty Information Center, a clearinghouse of information related to the death penalty.
In Nevada last year, a judge stopped that state’s department of correction from using the drug midazolam after its manufacturer, Alvogen, sued, claiming the state got the drug from distributor Cardinal Health “surreptitiously, evasively, illicitly and by subterfuge.”
“While Alvogen takes no position on the death penalty itself, Alvogen’s products were developed to save and improve patients’ lives and their use in executions is fundamentally contrary to that purpose,” the company wrote in a legal pleading.
It’s a sentiment that’s become almost universal among drug makers, Dunham said. The Lethal Injection Information Center has declarations by 37 drug makers and distributors on its web site saying that they won’t supply drugs for executions.
In the face of such supply problems, some states are resorting to execution methods that don’t use drugs, although states switched to IV drugs in the first place because they were considered more humane than the electric chair, hanging, the gas chamber or death by firing squad.
Dunham said states that want to continue executing people have their work cut out for them.
“It’s going to be extremely difficult for a state that wants to follow the law,” he said, adding a warning for those that don’t. “It’s a message of hypocrisy if you’re willing to break the law to carry out the law.”
Ohio’s new state auditor wants to make it easier and cheaper to challenge government officials for illegally holding secret meetings.
Auditor Keith Faber is calling to expand the state’s relatively new mediation system for public-records disputes so that it also applies to complaints of open-meeting violations. Faber referenced a recent lawsuit, filed by a conservative activist organization, that accused five Cincinnati City Council members of illegally texting about public business. City taxpayers there are expected to pay a $90,000 legal bill in connection with the case after a judged ruled against the city, according to the Cincinnati Enquirer.
“With an experience like you just had in Cincinnati, I think you can see the need to have a speedy, efficient and affordable process to resolve those kinds of claims,” Faber said.
The public-records mediation system, which started in 2016, allows citizens to file complaints, paying only a $25 filing fee, if they think government officials are illegally withholding public records. The complaints are then routed directly to a mediator with the state Court of Claims, bypassing the typical lengthy and expensive legal process.
The mediation system has been used more than 200 times since it was created, including recently by cleveland.com and local media outlets to force local government officials to release records detailing Cleveland’s failed bid to attract the Amazon HQ2 project.
Faber said the Amazon case is the type of thing state lawmakers had in mind when they designed the public-records mediation program. He said records of tax incentives and other perks governments offer to try to attract businesses should be public, once the project is over.
Cleveland officials, after initially not responding to a records request by a WEWS Channel 5 reporter, unsuccessfully tried to argue that details of the Amazon bid should be kept secret. Sharing them, city officials argued, would put them at a competitive disadvantage in the future.
A state mediator disagreed, and ordered the records to be released last week.
“I think that case shows that you can resolve big, complex, expensive cases cheaply through that process as well,” Faber said.
Faber said Sen. Larry Obhof, the Republican leader of the Ohio Senate, views expanding the mediation system to apply to open-meeting violations as a priority, and is working to introduce a bill soon. The measure is supported by the Ohio News Media Association, which represents state newspapers and other media outlets.
In Ohio, government officials are required to publicly advertise all public meetings. Local legislative bodies like city councils, school boards and county commissions are forbidden from meeting privately if a majority of that body attends, with some exceptions.
Faber, a Republican who took office last month, also announced that his office will begin scoring local governments on their compliance with public-records law during their routine state audits.
From The Enquirer
When a public official in Ohio sends a text about official business on a phone, the text is a public record and can be requested under the state's Open Records Law, a state judge has ruled for the first time. The judge ruled such texts are public no matter if they are made on a personal, privately-paid device.
“The ruling makes it clear that the platform elected officials use to discuss official business makes no difference – a public record is a public record,” said Beryl Love, executive editor of The Enquirer. “Text messaging can’t be used to side-step accountability to the public.”
Over the years, The Enquirer and other media outlets have sought emails from personal accounts that discuss city business, with the city routinely saying text messages and emails on private email accounts were not public records.
The issue came to the forefront in 2018 after five Cincinnati council members conducted illegal meetings via text message. The texts and additional emails among the council members drew lawsuits from The Enquirer and a private citizen aligned with the group Coalition Opposed to Additional Spending and Taxes (COAST).
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The city last week released the texts to settle a separate case that the text meetings violated Ohio's Open Meetings Law.
In a ruling Wednesday, Court of Claims Judge Patrick McGrath noted that an arbitrator or special master had decided that The Enquirer's initial request for the texts was too broad, but also decided city officials failed to give The Enquirer a path to revise the request as required by Ohio law.
"The Court of Claims decision is significant because it establishes that text messages that discuss public business are public records under Ohio law," said Jack Greiner, a lawyer for The Enquirer. "Some public bodies have argued that they are not solely by virtue of their format. This case makes it clear that argument is incorrect.
"Coming on the heels of the settlement last week, which essentially established an exchange of text messages among a quorum of Council is a public meeting, this decision greatly enhances the public’s right to know.”
Specifically, the arbitrator ruled that "storage in a personal, privately-paid cell phone did not automatically exclude a text message" from being a public record, as city lawyers had argued. The judge adopted the special master's reports, including conclusions of law.
The Enquirer case on texts was one of seven filed in October 2018 by the news organization in Ohio's Court of Claims for access to public records.
The Enquirer filed in the claims court under Ohio's relatively new system designed to streamline open records disputes. The cases went to immediate mediation as a way to avoid further legal actions.
The disputes involved several different city agencies that The Enquirer said had failed to respond to requests, delayed responses or offered incomplete records. At least one of the requests languished for nearly 18 months.
While declining to fill the requests, the city never cited any exemptions to the records law and never provided updates on the process.
Most of the seven cases subsequently have been resolved. One case, involving police body camera videos from September's Fifth Third Tower mass shooting, remains in arbitration.
Wednesday's ruling came during national Sunshine Week, emphasizing the American public's right to know under the First Amendment and laws designed to bolster it.
For the more than 160 workers then employed at the plant, for the city of Brooklyn, Ohio, and for the Cleveland area's storied history of garment-making, the arrival in 2015 of a high-end men's suitmaker to take over the closing operations of Hugo Boss AG in Brooklyn was fortuitous.
Keystone Tailored Manufacturing LLC, formed by the W Diamond Group of the Chicago area, not only stepped up to take on the skilled workforce who had labored long and hard to keep their jobs in Brooklyn, but also pledged to upgrade the facilities as it brought its made-in-America Hart Schaffner Marx suits line and other items to Ohio.
The acquisition was greased by generous grants -- $150,000 from the city of Brooklyn to retain and create jobs and payroll; a $420,000 economic development grant from JobsOhio, also apparently tied to job and payroll goals; and an offered $650,000 Cuyahoga County loan, which a county official told reporter Olivera Perkins the company never completed the paperwork on.
Brooklyn's grant had specific conditions, however: Keystone had to retain 172 jobs and create 20 more jobs by 2019 and another 20 by 2021. And the company had to maintain those jobs for at least 10 years. The company also agreed to maintain the firm's $4.6 million annual payroll, and increase it to $5.7 million by 2021.
With Keystone's Jan. 10 "WARN Notice of Plant Closing" to the Ohio Department of Jobs and Family Services -- informing the state of its intention to close the plant no later than March 11 and lay off all the 140 workers now employed there -- the city of Brooklyn has determined that Keystone will be in default of those terms. The city has also started the process of trying to claw back the full $150,000.
Keystone officials did not return a call seeking comment.
Brooklyn officials readily provided the editorial board with a copy of the city's Jan. 15 ten-day notice of breach to Keystone, and of the amended June 9, 2015 Job Creation/Retention Grant Agreement with the firm.
But what of JobsOhio's grant? Three weeks after Keystone's formal WARN letter to the state, JobsOhio still won't say whether it will seek to claw back all or some of the $420,000 grant.
"We do not comment on active company discussions," JobsOhio spokeswoman Renae Scott said via email Wednesday, adding, "however I can confirm we are engaged with Keystone Tailored Manufacturing to discuss next steps."
When asked for terms of the grant, Scott referred our editorial board to a June 2015 summary chart of grants that month, which shows that the $420,000 grant would support Keystone's creation of 20 jobs and added $600,000 annual payroll, the retention of 150 jobs and a fixed investment of $6 million.
It's not clear why the JobsOhio grant's job-retention numbers were so much less than those cited in the city of Brooklyn's jobs grant.
Scott refused to provide the actual terms of JobsOhio's executed agreement with Keystone, saying in a voicemail message that "JobsOhio is not an agency of the state. We're a private nonprofit. As a private nonprofit we are exempt from the Ohio public record laws."
Given that JobsOhio's budget is indirectly underwritten by state liquor monopoly profits that support the bonds that provide JobsOhio with its revenues, it's arguably a quasi public-private entity. It owes Ohioans more transparency.
But yes, in 2013, the Ohio Supreme Court determined that the Ohio legislature specifically exempted JobsOhio from most public records law -- shamefully so. The agency, it appears, isn't required to release more on its incentives, or how it enforces them, than the monthly charts and whatever is mentioned in the public version of its tax returns that a private accounting firm releases.
That's wrong. Ohio citizens deserve to know, at a minimum, how JobsOhio frames job-creation and retention requirements in its grants and how it enforces those requirements.
Kudos to the city of Brooklyn for seeking to enforce terms of its jobs grant to Keystone and claw back its citizens' money. JobsOhio, which provided nearly three times as much money, should do the same -- and if its deal with Keystone doesn't give it the same power to claw back that money, it owes the taxpayers an explanation for why not.
A former state and federal prison inmate won $3,000 in damages from the Erie County Prosecutor’s office after proving in court the county failed to provide public records in a timely manner.
Lonny Bristow, 45, of Wooster, won the $3,000 in a ruling announced Wednesday by the state’s Sixth District appeals court in Toledo, but he isn’t satisfied. Bristow plans to appeal to the Ohio Supreme Court to press his argument he should have been awarded $21,000.
Since he files so many lawsuits in Ohio, the court system has labeled Bristow a vexatious litigator. That means that before he files a new lawsuit, he must obtain court permission first by demonstrating that his court action is legitimate. A search at the Erie County Court Clerk’s online record system shows 29 court cases Bristow has filed in Sandusky.
Commenting on his legal victory, Bristow said, “That should make the prosecutors look pretty bad, a vexatious litigator just kicked their a--.”
Erie County prosecutor Kevin Baxter said he strongly supports legitimate public records requests but said Bristow’s case demonstrates the public records law can be used for harassment.
Pointing to the fact that Bristow has filed dozens of records requests in Erie County, including 42 requests filed over 42 business days, Baxter said it might be time to refine state law.
“There needs to be some legislative action,” Baxter said.
Bristow, who is unemployed but aspires to go to school and become a paralegal, has filed many public records requests in Ohio.
Last year, he filed requests demanding various county offices in Erie County provide records, including personnel files for prosecutor’s office employees and vacation requests from Baxter’s employees.
Bristow succeeded in getting a court order for compliance when he didn’t get an immediate response. He was able to show that some records weren’t produced for 22 days, despite a 14-day deadline.
The appeals court ruled against Bristow and in favor of Sheriff Paul Sigsworth in one dispute, agreeing with the sheriff that Bristow wasn’t entitled to the sheriff’s cell phone records. Sigsworth argued turning over the records could jeopardize investigations and the use of confidential informants, and the appeals court agreed.
Although appeals judges Mark Pietryskowski, Thomas Osowik and Christine Mayle ruled that Bristow could collect $3,000 in damages, noting that the law doesn’t allow public officials to make judgments on the merits of public records requests, Bristow said he should have been awarded $21,000 and is already pursuing his appeal to the Ohio Supreme Court.
“It’s not about greed,” Bristow said. “They didn’t do what they’re supposed to do.”
In response to a Register inquiry, the Ohio Department of Rehabilitation and Correction sent a document Thursday showing Bristow served time in state prison for escape, phone harassment, misuse of credit cards, theft and many other charges.
Bristow said his main violation was successfully using a bogus letterhead to send a forged document from a purported Ohio probation officer, ordering a friend’s release from jail in Georgia.
While in prison, Bristow hacked the prison’s telephone system, took control of 23 telephone lines, and rented the phones to inmates. As a result, three years and three months were added to his prison sentence.
Bristow also served time in federal prison after he was caught using prepaid calling cards to phone in bomb threats to dozens of public buildings, often courthouses, in five states.
He said he has changed his life and no longer commits crimes.
“I don’t do nothing criminal. Especially in this county,” he said while interviewed Thursday at the Register.
He said he files his public records requests to determine if public officials follow the law, typically discarding the resulting documents after inspecting them.
Baxter said Bristow’s filing of more than 100 public records requests in Erie County is a clear abuse of the law.
The prosecutor’s office has two attorneys who handle civil matters, serving as the lawyers for dozens of local governments, including county commissioners, townships and county offices such as the election board.
“We are the lawyer for everybody. They send their public records requests to us,” Baxter said. “Do we need to put on another lawyer to handle Lonny Bristow’s requests?”
A City of Cincinnati email has revealed city taxpayers paid $71,000 in outside lawyer fees to defend a court case in which five members of Cincinnati City Council are accused of illegally texting with each other about government business.
That's less than half of the $150,000 council approved for outside counsel when it became clear that the city law department had a conflict of interest because the council members wanted Vice Mayor Christopher Smitherman brought into the case, but he fought against it. All nine members of council are clients of the city solicitor's office so the disagreement created the conflict.
Smitherman prevailed and outside counsel is no longer needed.
Last month Smitherman requested costs related to the case from City Solicitor Paula Boggs Muething. She answered via email, which Smitherman shared with The Enquirer Wednesday night.
A detailed look at the spending shows:
Taft Stettinius & Hollister, who represented the city, was paid $17,080.
Dinsmore & Shohl, who represented the council members, was paid $43,172.
The city also paid Binary Intelligence, which did technical work retrieving the text messages, was paid $11,708.25.
The total spent was $71,963, according to Boggs Muething. In addition, city attorneys have spent at least 350 hours on the case, though they are salaried employees, she said.
From The ACLU of Ohio
The ACLU of Ohio is encouraged by Speaker Householder’s stated plan to broadcast committee hearings in the Ohio House. Greater transparency and increased understanding of the legislative process will surely benefit all Ohioans. We hope the Senate will follow suit and do the same for all, instead of just some, of their own committees. In addition, we support passing legislation to formally enshrine this expansion into law so future legislative leaders cannot turn cameras off on a whim.
Gary Daniels is the Chief Lobbyist with the ACLU of Ohio