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.