Your Right to Know: Listen up to our Sunshine Week podcast

By Randy Ludlow, The Columbus DIspatch

The time has come to talk of many things if you value transparency in government.

In observance of national Sunshine Week, Dispatch Editor Alan Miller joined me for a Buckeye Forum podcast discussing the importance of public records and open meetings to an informed citizenry.

LISTEN TO THE PODCAST

We offer some tips for gaining access to public records and discuss how you can best fashion your request to increase your chances of landing the information you seek.

Here’s a blog link to more Sunshine-related resources we provided earlier this week, including the so-called “Yellow Book,” the definitive guide to public access laws in Ohio.

In our podcast, we promised to provide a fill-in-the-blanks form letter you can use to request public records from state agencies, city and county governments, school boards and others. You can email rludlow@dispatch.com to request a Word version as an attachment or cut-and-paste text.

Remember, they are your records. Government merely is the custodian of the public’s records. Go get ’em.

Attorney General releases updated ‘Yellow Book’ on state's sunshine laws

Editor's Note: ONMA recommends all newsrooms to have a copy of this manual.

From The Morgan County Herald

Ohio Attorney General Mike DeWine has released the 2018 edition of Ohio Sunshine Laws: An Open Government Resource Manual. The release of the manual, commonly referred to as the “Yellow Book,” coincides with the beginning of National Sunshine Week.

“By providing elected officials, public employees and Ohio citizens with information about public records and compliance, we help ensure accountability and transparency in the conduct of public business,” said Attorney General DeWine.

The Sunshine Laws Manual provides summaries of Revised Code provisions and case law regarding the Ohio Public Records Act and Open Meetings Act. The 2018 edition includes updates on recent open government legal decisions and law changes. The electronic edition, which can be accessed at www.OhioAttorneyGeneral.gov/YellowBook, includes clickable bookmarks to allow readers to quickly jump to the topic in which they are interested as well as hyperlinked court cases to allow readers to quickly access court decisions.

The Ohio Attorney General’s Public Records Unit also offers Online Sunshine Laws Training, which is available to the public and can be accessed at https://SunshineLaw.OhioAttorneyGeneral.gov/. The Online Sunshine Laws Training contains thirteen separate lessons plus an introduction video featuring the Attorney General.

Each lesson combines a video instruction with quiz questions covering important topics under the Ohio Public Records Act or Ohio Open Meetings Act. Topics cover the length and breadth of the Ohio Sunshine Laws, from defining a public record to appropriate redactions before release. To complete the training, users must watch each video lesson in its entirety, correctly answer the quiz questions concerning the material covered, and fill out an evaluation providing feedback on the quality of the training.

The training lessons can be completed at the user’s own pace, and the entire three-hour training does not need to be completed in a single sitting. Users are able to return to the videos they have completed if a specific topic is of particular interest. The online training is approved for CLE credit, as are live Sunshine Laws trainings, and can be completed at home or in the office.

The Ohio Attorney General’s Public Records Unit conducts Sunshine Laws Trainings at dozens of locations around Ohio. The training on Ohio’s Public Records Act is required for local public officials or their designee at least once per elected term and also includes training on the Open Meetings Act. These trainings are also open to the public and media. A list of trainings can be found at www.OhioAttorneyGeneral.gov/SunshineLawTraining.

Cleveland PD claims unlimited right to blur images of cops accused of crimes

From The Plain Dealer

Cleveland officials are taking the stance that the public does not have the right to see un-redacted video and images of police officers who are formally charged with committing crimes.

City law director Barbara Langhenry said in an email exchange with cleveland.com that the city will use an exemption in the public records law in order to blur the faces of police officers in police body camera videos, even when those officers are off-duty and are formally charged with committing crimes.

Cleveland.com requested video on Feb. 16 of police officer Angelia Gaston, who is charged with obstructing justice after she drove away from a fellow police officer who was trying to tow her car because of some $1,500 in parking tickets Gaston had accrued. 

The city provided the video with Gaston's face blurred. In contrast, videos of other criminals charged with crimes do not under go similar editing. 

Langhenry's office also uses the exemption to refuse the release mug shots when officers are booked into the city jail on criminal charges.  

Langhenry did not respond to multiple messages seeking comment and clarification. City spokesman Dan Williams said in an email that Langhenry was consulting with attorneys at the law firm BakerHostetler and would provide an explanation. 

Williams later responded on Langhenry's behalf, saying that the city is going to stand by their "policy." 

The exemption the city cites is a provision in the Ohio Sunshine Laws that says photos of officers who are assigned to plain clothes or undercover work are protected from having their photos publicly released.

Langhenry said in an email that Safety Director Michael McGrath has said that "all Cleveland Police Officers may at any time be assigned undercover or plain clothes positions or assignments."

The exemption would cover all officers, even ones that have never had an undercover assignment.

A public records attorney and an open government advocate both called the city's reasoning "absurd."

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Appeals court rules education board met lawfully before ECOT vote

From Gongwer

The State Board of Education didn't commit a technical violation when it voted to claw back $60 million from The Electronic Classroom of Tomorrow, an appeals court has ruled.

The Franklin County Court of Appeals upheld the July decision of a lower court that the board didn't break open meetings laws the day it accepted a hearing officer's finding that ECOT was overpaid for the number of full-time students it served in the 2015-16 school year.

The shuttered e-school argued board members met illegally in June to come to a decision on the repayment prior to a vote.

Its attorney said at the time a violation was clear because members voted without discussion. He also criticized the meeting schedule and accused board president Tess Elshoff of polling members on their opinions prior to a vote.

Similarly, the board voted without discussion earlier this month to accept a hearing officer's findings from ECOT's 2016-17 school year attendance audit. Another $19 million was deemed overpaid as a result of that review.

The three-judge appeals court found that because the board's 2017 proceedings were quasi-judicial in nature, the Open Meetings Act cannot be violated.

"By issuing a final determination after providing notice, a hearing, and the opportunity to provide evidence, BOE was acting in a quasi-judicial capacity," the court said in its decision.

ECOT is currently awaiting an Ohio Supreme Court ruling in a separate case in which it contended the attendance audit was incorrectly completed, therefore no repayments should be made.

A proposed bill would restrict public access to visual sex crime evidence. Not everyone agrees with it.

From The Journal-News

Ohio Rep. Wes Retherford’s bill designed to protect a crime victim’s rights could soon be headed for an Ohio House vote.

The bill, called the Victim’s Protection and Privacy Act, would prevent photos, videos and images of a victim of a sexually oriented crime from being accessed via a public records request. The bill was prompted by Retherford’s conversation with a Hamilton police detective.

These pieces of evidence were protected throughout a court case, including the appeals process, until the Ohio Supreme Court ruled in Caster vs. Columbus. In a split decision, the court said these pieces of investigative evidence could be released once the initial court case concludes.

House Bill 451 would prevent that. The House’s Government Accountability and Oversight Committee voted 11-0 on Tuesday to move the bill out of committee on for a full vote by the House. Retherford, R-Hamilton, believes it could be up for a floor vote next week.

“With the vote (on Tuesday), we are one step closer to ensuring victims of sexual violence are not subject to being re-victimized,” he said.

The bill is supported by the Ohio Prosecuting Attorneys Association, and the Ohio Alliance to End Sexual Violence.

“Our members do occasionally receive public records requests for the types of records described in your bill,” wrote Steve Hall, assistant executive director for the Ohio Prosecuting Attorneys Association, to Retherford earlier this month.

“Many prosecutors have expressed to us that they make every effort to deny such requests. Others feel that there is currently no authority to do so. All agree that it would be very beneficial to have a clearly stated exclusion.”

While the Ohio Public Records Law provides transparency “critical to a functioning free society,” Camille Crary, director of legal services and policy with the Ohio Alliance to End Sexual Violence, said, “this loophole infringes on the rights and privacy interest of any person who happens to end up the victim of a sex crime.”

However, the bill is not supported by all. Dennis Hetzel, president and executive director with the Ohio News Media Association, said this bill “is not an easy one to oppose” because no one wants graphic content such as photos or videos released that could be used to re-victimize crime victims.

But there’s nothing in state law — even after the Caster decision — that says this would happen, and it has never occurred “to anyone’s knowledge,” Hetzel said in his testimony to the Government Accountability and Oversight Committee.

“Requesting records and receiving records are two different things. This is why there is no documented case of an offender receiving graphic photos after a case is closed,” Hetzel said.

“If such a request were made, it would be denied, and it would be upheld based on factors such as past Ohio Supreme Court decisions on the rights to privacy and the ‘catch-all’ exemption in our open records law that keeps material exempt if it is made secret by other portions of state and federal law.”

Retherford said the bill allows the legislature to be “proactive” to a possible situation “instead of being reactive to a scenario that could happen.”

Court orders Cuyahoga County to release video of corrections officer's attack on naked inmate

From The Plain Dealer

An Ohio court has sided with cleveland.com and ordered Cuyahoga County to release body camera video of a jail supervisor using excessive force on a naked inmate.

Lawyers for Cuyahoga County Executive Armond Budish did not back up their claims that a video that led to the firing of Corporal Brendan Johnson should be exempt from release, Jeffrey Clark, a special master assigned by the Ohio Court of Claims to rule on the dispute, wrote in a 29-page decision handed down Wednesday.

Clark did allow the county to blur images of the inmate's breasts, underwear and computer screens and writings that detail her medical history, and to redact 14 seconds of audio from the video. But Clark wrote that the redactions must be made in a way that does not obscure Johnson's actions, rejecting the county's claims that the entire video was not a public record.

Dennis Hetzel, president of the Ohio News Media Association, called the opinion a "well-reasoned slap-down" of the extreme arguments that the county used to try to keep the video away from the public.

"It's a good decision in terms of telling local government that when you take an extreme view of the open records law, you're not going to win," Hetzel told cleveland.com in a phone interview Thursday.

The ruling is also an important victory for government transparency and offers a well-reasoned and delicate answer to a difficult question that governments and courts must grapple with as law-enforcement body cameras become ubiquitous pieces of evidence in court cases across the country, Hetzel said.

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AEP gets second chance to meet notice requirement

From The Columbus Dispatch

American Electric Power is getting a do-over in the form of a public hearing scheduled for Feb. 12.

The Public Utilities Commission of Ohio said the hearing will make up for the fact that AEP did not file proper notice of hearings that took place last April for a proposal to change electricity rates through 2024.

“While it is apparent that many consumers were aware of the hearings, the attorney examiner finds it necessary to conduct another public hearing to ensure the public is notified of these proceedings and afforded an opportunity to provide testimony,” according to a filing made Monday by a PUCO administrative law judge.

The lack of notice, which by law must be published as an ad in local newspapers, meant that the PUCO and AEP were violating state rules for this type of rate plan.

AEP notified the commission of the error and asked for the notice rule to be waived. Consumer advocates objected to this.

As an alternative, AEP said it could hold an extra hearing, which is the option the utility has chosen.

AEP has said the rate plan would lead to a first-year increase of about $1 per month for households.

The hearing is scheduled for 6 p.m. Feb. 12 in the Cardinal Classroom at the Ohio History Center, 800 E. 17th Ave.

Ohio Supreme Court: FirstEnergy records improperly shielded from public

From The Columbus Dispatch

The Ohio Supreme Court has found that state utility regulators went too far in shielding documents from public view in a case dealing with FirstEnergy’s purchases of renewable-energy credits.

Consumer and environmental advocates had pushed for release of the documents, saying they would help the public understand why regulators found that FirstEnergy had overpaid by $43 million for the credits in transactions that may have involved an affiliated company, FirstEnergy Solutions.

“If a utility is misspending customers’ money, it should not be able to keep that a secret,” said Madeline Fleisher, an attorney in the Columbus office of the Environmental Law and Policy Center, reacting to the decision released Wednesday. Her group argued before the court that the documents should be public.

But this was a mixed result for consumers.

The court also found that FirstEnergy does not need to repay the $43 million because of a precedent that bars retroactive changes to utility rates. This part of the decision rejects the Public Utilities Commission of Ohio’s order to refund the money.

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Judge denies attempt by city of Alliance to dismiss public meeting lawsuit

From The Alliance Review

The city of Alliance’s attempt to have a public meetings lawsuit dismissed was denied by Stark County Common Pleas judge Taryn L. Heath on Tuesday. 

Alliance requested a summary judgment — which seeks a ruling by a court without a trial — in a lawsuit filed by a city man, who contends an executive session in Alliance City Council was a violation of the Ohio Sunshine Law. 

Heath noted in the five-page judgment entry that she “cannot, and will not, accept (the city’s) contention that a Court must blindly accept the meeting minutes of a public body because they have been approved — particularly in the face of evidence that they are incorrect.” 

In April 2017, days after city council’s regular meeting, attorney Steven Okey filed the court action on behalf of resident Leslie J. Young, citing public meetings law violations after council recessed into an executive session without giving the reason. The complaint alleged this violated the Ohio Revised Code rules, pointing to a video of the meeting posted by the Alliance Review on its YouTube channel. 

“The video accurately records that no member of council cited any purpose (for the executive session),” Okey wrote in a 12-page memorandum Nov. 13 responding to the city’s motion for summary judgment against his case. “Yet the statutory purpose (personnel) conveniently appears in the minutes.” 

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Emails suggest Columbus superintendent vetting process not so transparent

From The Columbus Dispatch

The Columbus Board of Education has not only been interviewing a secret list of candidates to become the next district superintendent, but it has added names not on the list of 19 applicants it released in December.

The board also has been allowing a consultant to keep documents to avoid the Ohio Public Records Act and has been making official board decisions in potentially illegal private meetings, district emails — released to The Dispatch under a records request — reveal.

After promising a transparent process, the board scheduled interviews for seven potential superintendent candidates that occurred between Jan. 8-10. According to emails, they included: current Acting Superintendent John Stanford; former district deputy superintendent Keith Bell, who later took a post in suburban Cleveland; Errick Greene, chief of schools in Tulsa, Oklahoma; and David James, superintendent of Akron City Schools.

But the board also held get-togethers with three candidates whom the district did not name when it released the list of applicants in December. The board called those “meetings” rather than “interviews,” the term they used for the four candidates who actually applied.

The district released applications from new candidates, some with dates before the Dec. 8 deadline but who weren’t on the list of candidates that the board released Dec. 11. New applicants include: Robert Haworth, superintendent of Elkhart Community Schools in Indiana; Michael Conran, superintendent of Global Education Excellence in Ann Arbor, Michigan; Corwin Robinson, principal of St. Tammany Parish Schools in Mandeville, Louisiana; and Jesse Pratt, academic improvement officer for Indianapolis Public Schools.

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