Dispatch Editorial: Think before saying 'no'

Columbus Dispatch editorial

For central Ohioans, the $26,000 legal bill the Solid Waste Authority of Central Ohio owes for fighting a public-records request adds insult to injury: First SWACO tried to keep public records away from the public, and now the public gets stuck paying for it.

And the worst of it is, the public still doesn’t know why a private yard-waste company was allowed free dumping of an astounding amount of garbage — enough to ordinarily have run up tipping fees of nearly $700,000 — at SWACO’s publicly owned landfill.

That’s why The Dispatch demanded to see emails that went between SWACO employees last May, when the newspaper ran a story by reporter Bill Bush revealing that Kurtz Brothers, the Groveport company that SWACO pays to take the yard waste collected from central Ohio households, dumped nearly 800 truckloads over a six-month period without payment.

Kurtz Brothers said its 2005 yard-waste contract with SWACO allows it to dump, at no charge, the odd bits of garbage — pop cans and plastic bags and such — that inevitably get mixed in with loads of yard waste. Over the years, Kurtz typically dumped a few dozen such loads per year.

When that turned into hundreds in 2016, Kurtz claimed that the extraordinary influx was all “foreign material” that it had plucked from yard waste and allowed to build up on its property over the years. Experts are skeptical that anywhere near that much garbage could have come from a decade’s worth of yard waste.

SWACO officials said they were concerned about the dumping, yet couldn’t explain why the public landfill allowed it to continue for so long.

Clearly, every central Ohioan whose trash fees (paid through private haulers or through municipal taxes) support SWACO had an interest in knowing what was going on. When SWACO refused to provide emails without redactions, The Dispatch went to the Ohio Court of Claims, employing a year-old mechanism that allows anyone denied public records to seek mediation.

Rather than release the emails, SWACO lawyered up. It claimed that the emails are exempt from public-records law and argued they are subject to attorney-client privilege because the agency’s in-house attorney had been copied on them.

Simply involving an attorney doesn’t make a conversation privileged; public records can be withheld for attorney-client privilege only when the discussion involves a pending or imminent lawsuit — suing someone or being sued. That wasn’t the case with the SWACO emails.

The Court of Claims public-records appeal, created by state statute in 2016, has given any member of the public an easy and inexpensive way to challenge a government body that denies a request for public records. A $25 filing fee, no lawyer required, triggers a process that begins with mediation and can elevate to formal hearings and a court ruling.

About 90 cases have been filed and, so far, more than half have resulted in Ohioans getting access to records that bureaucrats initially denied.

Open-government advocates say it’s prodding governments to think twice before denying records requests improperly. If SWACO had done that, it could have saved central Ohio taxpayers $26,000.