OCOG seeks award nominees, your support as eventful 2019 looms

If you’re reading this you’re likely a supporter of accessibility, transparency and accountability in Ohio government.

It’s the time of year when we ask for your help.

First, we’re looking for nominees for our 2019 “Champion of Open Government Award.” This annual honor goes to an Ohioan who has made a difference in support of open government in the Buckeye State. Past nominees have included students, politicians, journalists and everyday citizens who simply chose to get involved. Their efforts have resulted in meaningful change from the local level all the way to Ohio Supreme Court decisions on open records and public meetings that get cited nationally.

If you know of someone who might be deserving, just send a brief nominating statement with your reasoning and contact links if possible to jsanford@ohionews.org.

As always, we welcome new and renewed OCOG memberships. One-time donations also are more than welcome, particularly because the court battles we undertake can cost thousands of dollars. To join or make a year-end, tax-deductible donations, just click here.

Right now, we have two cases pending before the Ohio Supreme Court. One is to stop the practice of secret-ballot voting in public meetings by elected officials. The other would increase police accountability and transparency to stop unwarranted exclusion of body camera footage from release.

Here are some of OCOG’s other efforts during the past 12 months:

• Released two comprehensive editions of our “Ohio Open Government Report” that also were distributed to all state legislators and executive branch officials.

• Updated the Ohio Supreme Court database and scorecard on open government cases considered by the state’s highest court. We believe that our activism has helped reverse a trend of anti-open government decisions by the Court.

• Served as state host for the summit of the National Freedom of Information Coalition, which brought open government advocates from across the nation to Cincinnati

• Answered dozens of calls and emails from citizens on our legal hotline, providing helpful information in open government battles or referring citizens to qualified attorneys.

• Conducted a successful fund-raising event in Columbus headlined by J.D. Vance, the author of the best-selling “Hillbilly Elegy.”

OCOG matters more than ever in these times. We thank you for your interest and urge your continued support.

Common Cause Ohio calls for more transparency and improved recusal standards

From Common Cause Ohio

Today, Common Cause Ohio released a studyexamining campaign contributions to the candidates for the Ohio Supreme Court and called for the Ohio Supreme Court to strengthen recusal rules so that judges step away, rather than hear the cases of their campaign contributors.

“The idea that judges should not be able to hear the cases of campaign contributors is such common sense that many people assume it is already the case,” said Catherine Turcer, Common Cause Ohio’s executive director. “Courtroom decision made with a conflict of interest can have a dramatic impact on people’s lives. We need to establish stronger recusal standards so that judges are insulated from the influence of wealthy donors and so that Ohioans can feel confident in the impartiality of judicial decisions.”

Together, the candidates for justice of the Ohio Supreme Court raised nearly $900,000 from January of this year through the month of August.

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Enquirer sues Cincinnati over delayed open records responses

From The Cincinnati Enquirer

The Cincinnati Enquirer on Friday sued the city of Cincinnati in Ohio's Court of Claims for access to public records in seven different cases involving delays or incomplete records.

The disputes involve several different city agencies and include at least one request that has not been filled for nearly 18 months.

In several of the cases, repeated requests were made for the records over the course of several months.

And while declining to fill the requests, the city never cited any exemptions to the records law and never provided updates on the process.

"It’s unfortunate we have been forced to take legal action against the city to obtain public records, but we will always fight for government transparency," Enquirer Executive Editor Beryl Love said. "Other municipalities we cover fulfill these types of requests in a timely manner, so it’s hard to understand why the city of Cincinnati has let these requests drag on for so long."

The Enquirer filed in the claims court under Ohio's relatively new system designed to streamline open records disputes.

The cases now go to immediate mediation as a way to avoid further legal actions.

But The Enquirer still reserves the right to take further legal action if mediation is unsuccessful, Enquirer lawyer Jack Greiner said.

"The Enquirer has been extremely patient with these requests. At this point, we think it appropriate to ask the Court of Claims to intervene,” Greiner said.

A spokesman for the city administration declined to comment, saying officials needed to review the lawsuits.

Untraceable: Why law enforcement knows the number of missing DNA profiles, but you don't

From Lancaster Eagle Gazette

The public may need to know, but they don’t have the right to know.

An investigation into collection lapses revealed Ohio’s DNA databank is missing thousands of profiles, potentially denying or delaying justice in unsolved crimes.

The data detailing the shortcomings in Ohio’s DNA collection for arrested and convicted felons can’t be released to the public, according to Ohio Attorney General Mike DeWine’s Office.

Despite the value of holding the biggest offenders of failed DNA collections accountable, the data isn’t being released.

Here’s why.

Understanding who has access and who doesn't

Information requested from the Attorney General’s Bureau of Criminal Investigation — which would outline the number of DNA profiles missing from the databank — would have required the compilation of data in a report that doesn’t already exist. Ohio’s Sunshine Law doesn’t require public offices to create new reports to satisfy a records request.

The data is housed in what’s called the Negative Offender DNA Flag Report, which is an application found in the Ohio Law Enforcement Gateway. BCI maintains the private police database and also Ohio’s Combined DNA Index System or CODIS. The DNA profiles in Ohio’s databank are also then uploaded to the national databank system.

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Advocates call for anti-SLAPP laws to protect domestic violence victims from frivolous lawsuits

From NBC4

Ohio has had 91 domestic violence-related fatalities over the last year, according to advocates who are calling for lawmakers to do more to protect victims.

The Ohio Domestic Violence Network compiled data from 69 cases mentioned in media reports from July 1, 2017, to June 30, 2018. A gun was involved in 71 percent of those incidents, according to reports.

Advocates say the state needs to do more to educate Ohioans about domestic violence and prevent it.  

Bridget Mahoney, the chair of the Ohio Domestic Violence Network, is a former news anchor, who is also a domestic violence survivor.

“I left my position in northeast Ohio to move to Cincinnati, Ohio, to try and get away from it and it only made it worse,” Mahoney said.

She said the state is not doing enough to protect its people.

“The way that we are going to bring those numbers down is through prevention, education, awareness and belief of the victims,” Mahoney said.

Mahoney said the only way that prevention and education happens is through funding.

“Pennsylvania, right next door to the east of us, $15 million dedicated each year to [domestic violence]. The average state $7.5 million; Ohio… zero,” Mahoney said.

She wants a line item in the budget to fund prevention and education efforts.

Mahoney also wants lawmakers to stop dragging their feet on two pieces of legislation currently in front of them that could make life better for victims of domestic violence.

One bill would recognize strangulation as domestic violence, something the state currently does not.

You are seven times more likely to be killed by your partner if they strangle you, according to the organization.

The other bill would create anti-SLAPP laws to protect victims from frivolous lawsuits meant to discourage them from speaking out.

Despite support for the former bill, neither is anywhere close to passing.

Mahoney says they just aren’t a priority for the party in power at the Statehouse.

New bill would finally tear down federal judiciary’s ridiculous paywall

From Ars Technica

Judicial records are public documents that are supposed to be freely available to the public. But for two decades, online access has been hobbled by a paywall on the judiciary's website, called PACER (Public Access to Court Electronic Records), which charges as much as 10 cents per page. Now Rep. Doug Collins (R-Ga.) has introduced legislation that would require that the courts make PACER documents available for download free of charge.

The PACER system has been on the Web since the late 1990s. To avoid using taxpayer funds to develop the system, Congress authorized the courts to charge users for it instead. Given the plunging cost of bandwidth and storage, you might have expected these fees to decline over time. Instead, the judiciary has actually raised fees over time—from 7 cents per page in 1998 to 10 cents per page today. Even search results incur fees. The result has been a massive windfall for the judiciary—$150 million in 2016 alone.

Critics like the legal scholar Stephen Schultze point out that this is not what Congress had in mind. In 2002, Congress required that the courts collect fees "only to the extent necessary" to fund the system. It obviously doesn't cost $150 million per year to run a website with a bunch of PDFs on it. Despite that, federal courts have used PACER revenues as a slush fund to finance other court activities. For example, one judge bragged at a 2010 conference about using PACER funds to install flatscreen monitors and state-of-the-art sound systems in court rooms.

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Ohio State football probe didn’t attempt to recover deleted texts

From The Wall Street Journal

The day Ohio State football coach Urban Meyer was placed on administrative leave over his handling of abuse allegations against a longtime assistant, he asked a colleague how to delete old text messages from his university mobile phone, outside investigators hired by the university said in a report released last month.

Yet the legal team investigating Mr. Meyer’s conduct, led by former Securities and Exchange Commission chairwoman Mary Jo White, decided not to send Mr. Meyer’s phone to a forensics lab to determine if he actually destroyed evidence, according to two people familiar with the matter.

… Jack Greiner, a Cincinnati-based lawyer who specializes in media law, says Ohio State’s records-retention policy requires saving correspondence that isn’t transitory–not including, for instance, a text message saying you’ll be home late–for at least one year.

“A blanket practice of deleting texts violates the records-retention policy on its face, which therefore constitutes a violation of the [state] statute,” Mr. Greiner said.

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Bill would keep secret how much revenue individual retailers get from SNAP

From The Rural Blog

The House version of the proposed Farm Bill contains a provision that would overturn a court ruling allowing the public to see how much Supplemental Nutrition Assistance Program (food stamp) revenue a retailer gets in a year. The National Newspaper Association, the main lobby for weeklies and small dailies, says the grocery industry and big-box stores are pushing the proposed exemption to the Freedom of Information Act.

The Sioux Falls Argus Leader has been fighting in court for seven years to get the data. After a federal judge said it should get the data, the Department of Agriculture didn't appeal, but the Food Marketing Institute, the grocers' lobby, did so. It argued that releasing the figures "would cause some SNAP retailers substantial competitive harm," and/or "public stigma," the Argus Leader reported. The U.S. Court of Appeals for the Eighth Circuit rejected those arguments, a month after the House Agriculture Committee included the exemption in its proposed Farm Bill.

NNA President Susan Rowell, publisher of the Lancaster News in South Carolina, told senators in a letter, "Community newspapers see considerable public interest value in USDA’s annual SNAP retailer data. The public availability of this information would enable journalists to probe many aspects of the SNAP program that should concern Congress, such as existence of food deserts, particularly in the rural and highly urban areas; possible food stamp fraud, which a skilled journalist might detect from dramatically disparate utilization of the benefit between similarly‐situated retailers; development of new capabilities by certain retailers who have begun to welcome SNAP beneficiaries, such as new freezers, dispensers and displays; and competitive pricing among locations where SNAP beneficiaries might be able to stretch their resources further."

Rowell also said the Farm Bill is not the place to amend the FOIA. "The gravest danger to transparency and accountability by the citizen-shareholders of the U.S. government is the piecemeal erosion of FOIA from year to year by individual interests hoping to gain their own particular shelters for records," she wrote. "As users of FOIA, community newspapers believe that only serious, the demonstrable and specific harms resulting from disclosure legitimately qualify for FOIA exemption."

NNA has circulated a briefing paper on the issue and urged its members to contact the Senate's Farm Bill conferees: Chairman Pat Roberts of Kansas and fellow Republicans John Boozman of Arkansas, John Hoeven of North Dakota and Joni Ernst of Iowa; and Democrats Debbie Stabenow of Michigan, Patrick Leahy of Vermont, Sherrod Brown of Ohio and Heidi Heitkamp of North Dakota.

State slow to release records about CVS contract for HIV drug program

From The Columbus Dispatch

The Ohio Department of Health says it isn’t purposely delaying release of documents related to a mailing last year that could have publicly identified 6,000 HIV-positive Ohioans. But others have their doubts.

It has been more than 10 weeks since The Dispatch requested records relating to the department’s decisions that led to the mailing by CVS, which undertook the work even though the department’s request for proposals said the state would handle it.

But so far, the Department of Health hasn’t provided those documents. Nor has it said why it signed a deal making CVS pharmacies the exclusive recipient of $8.1 million in annual federal HIV drug assistance, when some experts say the arrangement disrupts the care some patients are getting.

The 2017 mailing to all the participants in the Ohio Drug Assistance Program sparked outrage because just above recipients names was printed “PM 6402 HIV” — an egregious violation of patient privacy, critics say.

Ohio Open Records laws require that “all public records responsive to the request shall be promptly prepared and made available for inspection.” Yet a July 2 request for copies of emails, texts and other written communication relating to the mailing remains pending.

Spokesman Russ Kennedy last week said that the health department “has been working on your request which required program staff to review thousands of their emails to identify communication with CVS, and then review each to redact any protected health information (while also fulfilling their regular job responsibilities) ... I noted that process had been completed, and Legal staff had begun reviewing the emails/written communications to ensure that (personal health information) has indeed been redacted. Legal’s review of these records continues — I have asked them whether we can at least give you the records for which they have completed their review, and I’m awaiting a response.”

Terry Kilgore, a Cleveland-area attorney isn’t buying it.

“They’re stonewalling you,” said Kilgore, who is suing CVS in federal court on behalf of three anonymous HIV patients whose status may have been made public by last year’s mailing. “There’s no good reason for them not to give you that information.”

The administration of Gov. John Kasich, which controls the health department and the Ohio Department of Medicaid, does a lot of business with CVS. In addition to the HIV program in the health department, CVS is pharmacy-benefit manager to four of Ohio’s five Medicaid managed-care plans — meaning the company controls billions in annual spending on prescription drugs.

The Dispatch’s Side Effects investigation helped prompt a Department of Medicaid analysis in which its consultant said CVS and OptumRx are billing the department far more than than the going rate.

Kasich spokesman Jon Keeling was asked whether the governor was OK with how long the Department of Health has taken to respond to questions about the CVS-HIV mailing.

“Each agency handles their public records requests, and I know Health is always particularly careful because of the sensitivity of their work,” he said in an email. He added, “As you know, the governor’s office doesn’t get involved in any contract of requisition decisions. Never have and never will.”

CVS spokesman Michael DeAngelis on Friday reiterated his company’s earlier statement that his company has addressed the issues that led to last year’s problematic mailing.

Cleveland Heights Charter Review panel nixes Sunshine Law proposal

From The Plain Dealer

Unable to concur on a "prescriptive" or "aspirational" approach to open government, the Charter Review Commission has set aside a proposal to add a "Sunshine Law" provision to the city's home-rule constitution.

Also finding its way to the scrap heap was an earlier proposal to assign each of the seven at-large City Council members separate geographic districts to deal directly with residents in their neighborhoods, initially seen as a compromise to any possible ward representation.

Introducing her revised open meetings provision on Aug. 16, CRC member Carla Rautenberg noted that the charter, adopted in 1921, has been referred to as the "DNA" of the city.

"That's why I think it's so important to have the Sunshine Law in the charter," Rautenberg said of draft language proposing that the city "meet and exceed" state requirements for open meetings that date back to the post-Watergate era.

This would have included keeping minutes of all "committee-of-the-whole" meetings, although it was noted that council now recordsthem, even after the "home-rule" charter withstood a Sunshine law challenge and appeal that the Ohio Supreme Court has declined to hear.

Arguing that the city already has a "boatload of transparency," CRC Chairman Jack Newman questioned whether Rautenberg's proposal needed to be embedded in the charter.

"What conspiracies have succeeded because of the system we have?" Newman asked.

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