Editorial: Public records are public regardless of format

Editorial from The Columbus Dispatch

New apps that allow people to communicate without leaving a pesky digital record may be a godsend for those engaged in top-secret negotiations, confidential advising and ordinary gossip, but we hope all Ohio public officials recognize that they’re absolutely inappropriate for government work.

It should be obvious: Ohio’s “Sunshine” laws require government business to be done in public, and that means government records, with some exceptions, must be available to the public. A government-business text or email that disappears automatically after a set time would be the same as destroying a public record.

Given the time-honored inclination of some in government to evade public scrutiny, though, it’s probably worth emphasizing that vanishing-message apps — sort of a 21st century equivalent of the sizzling reel-to-reel tape recorder on the old “Mission Impossible” — don’t belong in public service.

The Associated Press recently tracked legislation in all 50 states and found a number of attempts to shortchange public access:

‒ In Louisiana and Kentucky, lawmakers tried (and failed, thankfully) to exempt all communications on personal phones from open-records laws — as if who paid for the phone can change whether the communication is public.

‒ A Virginia legislator introduced a bill to exempt lawmakers’ personal social-media records from public disclosure.

‒ In Missouri, former Gov. Eric Greiten’s staff’s use of the Confide app, which automatically deletes messages and doesn’t allow them to be forwarded or made into screenshots, prompted opposition lawmakers to clarify that personal social-media posts and messages sent through such apps nonetheless are public records if they relate to public business.

It’s a fact of modern life that many of us communicate on multiple devices all day and enjoy no clean separation between work and personal time. For government employees, that undoubtedly complicates the definition and preservation of public records, but it doesn’t change the principle that any communication by or to government employees involving public business must be retained and made available to the public.

A state representative in Missouri, pushing for the public-records bill, said it best: “We should not be allowed to conduct state business using invisible ink.”

Officials' use of 'delete' apps for texts, emails would violate Ohio law

From The Columbus Dispatch

Government officials using emails and text messages to handle public business in Ohio had best avoid apps and software that instantly or automatically delete their digital communications.

Under state law, no public records can be destroyed unless authorized by a public office’s records retention schedule that specifies how long records must be kept before they are destroyed.

And, if electronic messages are illegally deleted, the Ohio Supreme Court ruled a decade ago that government officials must pay the costs of attempting to recover them and, if successful, turn them over for inspection.

A public official’s use of an app that automatically destroys a digital or electronic public record would violate state law, said Dennis Hetzel, executive director of the Ohio News Media Association.

“It is clear under Ohio law, as it should be, that the nature of the content of the communications, not the device or server used, should determine if it is a public record. That includes emails and text messages. There are many easy, best practices that public officials can and should follow to make sure these records are preserved,” said Hetzel, also president of the Ohio Coalition for Open Government.

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Cleveland.com voter look-up tool credited for new feature on Ohio elections website

From The Plain Dealer

A new tool that allows voters to check whether they are at risk of being removed from the rolls came from a cleveland.com project published in June.

The U.S. Supreme Court in June upheld Ohio's "supplemental process" for removing ineligible voters from the rolls after not voting for six years and failing to respond to a registration "confirmation notice" sent after two years of inactivity. Ohio Secretary of State Jon Husted announced three changes that he says will help more eligible voters stay on the rolls.

One of them is the ability for voters to check whether they've been sent a confirmation notice when checking their registration record on MyOhioVote.com. Cleveland.com data analysis editor Rich Exner made that information available with a database he built and published on June 27. The database includes the names of more than 1 million voters who were mailed notices and didn't respond and more than 800,000 voters who could be sent notices once the process resumes.

"In elections administration, we should -- and in Ohio, we do -- strive for continuous improvement; not only in our internal processes, but also as it relates to voter information and experience," Husted wrote in a directive to county elections officials. "A good idea is a good idea, no matter where it comes from."

Husted wrote that providing this information will likely result in fewer registered voters in an "inactive" status, fewer voters removed from the rolls, and more regular ballots counted on Election Day. County boards of election can begin identifying voters who haven't voted since the May 2016 primary election and sending initial confirmation notices. 

No registrations will be canceled as a result of the supplemental process before the November election. Voters flagged during the 2018 supplemental process won't be removed until after the November 2022 election.

Always remember, no one has a monopoly on great ideas. Case in point - #Ohio's new voter lookup feature announced today (https://t.co/7hmC1boLwm) is courtesy @Clevelanddotcom's own @RichExner

-- Jon Husted (@JonHusted) July 9, 2018

Cincinnati council members sued over text messages

From The Cincinnati Enquirer

It didn’t take long for the court fight over texting at City Hall to become a political fight over who gets to be Cincinnati’s next mayor.

The dispute is complicated. It involves Ohio’s public meetings law, a string of politically charged text messages and as many as nine and as few as five City Council members, depending on which lawyer is doing the talking.

A judge will likely need months to sort it all out, but one aspect of the case started to come into focus last week: The top two candidates in the 2021 mayoral race see the texting flap as a very big deal.

P.G. Sittenfeld and Christopher Smitherman have been pulled into the texting fray and recognize its potential for both political peril and opportunity. They're rivals for the seat now occupied by Mayor John Cranley, who can't run again because of term limits.

“There’s a desire to come out on the winning side,” said David Niven, a political science professor at the University of Cincinnati. “And there’s certainly a desire to keep the dirt running downhill and away from you.”

The dirt started flying three months ago when Cincinnati resident Mark Miller sued five members of City Council for texting and emailing one another about city business as part of “an elaborate scheme to avoid public scrutiny.”

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Ohio Supreme Court accepts jurisdiction in Open Meetings Act case

From Gongwer

The Ohio Supreme Court has agreed to take up a case that could determine if public bodies violate the Open Meetings Act by utilizing secret ballots.

The court has accepted the appeal of Patricia Meade, who alleged the Village of Bratenahl violated the law in 2015 when its council utilized a secret ballot to elect a president pro tempore.

The election required three rounds of voting, and the ballots were reviewed only by the village's law director, according to Ms. Meade, who is the publisher of a community news publication.

In her memorandum in support of jurisdiction, Ms. Meade cites an advisory opinion from the attorney general's office and a 2016 Ohio Supreme Court ruling in which it found a private and prearranged discussion of public business by a majority of a public body through email violates the state's open meeting laws.

"The OMA expressly declares that it is to be liberally construed in openness so as to require public officials to take official action and conduct all deliberations upon official business only in open meetings. In so doing, this court must conclude and declare that secret-ballot voting violates the OMA," she wrote.

Both the trial court and the Eight District Court of Appeals sided with the village in the case.

Ms. Meade said the appellate court ruling "created a standard that does not advance the purposes and goals of the OMA, but directly undermines them."

The Ohio Coalition for Open Government struck a similar tone in its amicus brief supporting jurisdiction in the case.

"If permitted to stand, the decision below will allow local governments to effectively operate in secret, impairing the public's ability to hold their representatives accountable," the group wrote. "Public knowledge of government operations is vital to the legitimacy of local governments in Ohio."

The village, however, said there is no statute or case law that spells out how a vote for president pro tempore should be conducted.

"In fact, (the law) authorizes a legislative authority of a municipal corporation to determine its own rules and in this matter, village council followed its own past practice of using a contemporaneous vote by ballot to elect president pro tempore to a one-year term," the village wrote in opposing jurisdiction in the case.

The village also contends that the secret ballots were not designed to hide public business.

"Contrary to appellant's argument, the purpose of the handwritten ballot was not (to) conceal, but rather, to vote contemporaneously," it wrote. "A contemporaneous vote by handwritten ballot assures comradeship and precludes the potential public pressure resulting from hearing the other councilmember's votes."

Canton Repository uses public records to determine who paid for new Hall of Fame stadium

From Ohio.com

Throughout its reconstruction, confusion has circulated about how Tom Benson Hall of Fame Stadium was paid for — mostly, about how much public money helped to finance the nearly $139 million project.

The answer: $15 million.

The rest of the stadium was paid through private donations and loans, according to financial documents The Canton Repository obtained through public records requests.

Comparatively, most football stadiums built in the past decade have relied on at least 25 percent funding in public dollars, usually far higher percentages.

Budget documents prepared by developers and filed with the Stark County Port Authority detail how much the stadium cost, where money came from and how costs changed during construction. They show the financing plan largely relied on equity, loans and naming rights — not on public support.

Benson Stadium was dedicated last August, but some work remains. The east end zone needs to be built, estimated to cost $8 million, as does the permanent scoreboard, which will be part of the facade of another building envisioned for the Village.

The stadium is the most visible component of the nearly $1 billion Johnson Controls Hall of Fame Village planned for the campus around the Pro Football Hall of Fame. Several new youth fields also have been constructed, and a four-star hotel broke ground more than a year ago, with resumption expected this year.

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New York unveils freedom of information website

From Government Technology

Gov. Andrew Cuomo unveiled a new website that he says will make it easier for the public and the press to access records from various state entities under New York's Freedom of Information Law.

The website, called Open Foil NY, offers a centralized online location to file FOIL requests with 59 state agencies and public authorities and was lauded by Cuomo as offering, for the first time, a uniform method to submit requests for government records through a single website.

In addition, Cuomo said the system will be the first of its kind in the nation that will provide an open-access records request "web form" that allows the requester to select multiple state agencies for a single records request.

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Consultants for Columbus Schools pledge to follow sunshine laws in new superintendent search

From The Columbus Dispatch

The next superintendent of Columbus City Schools might be announced in mid-October and on the job by January, under a timeline the Columbus Board of Education set with its hired search firm on Monday night.

During a special meeting, representatives from Chicago-based B.W.P. & Associates advised board members that they need to broaden who they would consider for the job.

Retired superintendents from other states, deputy superintendents from urban districts and those serving as interim superintendents would be good choices because they tend to have relevant experience and more flexibility to start mid-year, said search consultant Debra Hill.

... The search consultants said they recognize that Ohio law requires that the names of superintendent applicants be made public. Hazard, Young, Attea & Associates, which conducted a search for Columbus superintendent earlier this year, kept some candidates secret.

“We understand the Sunshine Law and we’re going to follow it ...” said B.W.P. representative Kevin Castner. “We’re going to have to make sure that we do exactly what your legal counsel tells us for Ohio.”

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Judge considers public access to opioid data

From The Herald Star

A federal judge in Ohio will consider whether to allow public access to government data detailing years of prescription opioid painkiller shipments.

The information is at the heart of lawsuits filed by hundreds of local governments against the companies that manufacture, distribute and sell the drugs, which are blamed for sparking an addiction and overdose crisis that killed more 42,000 Americans in 2016 alone.

The federal government agreed earlier this year to share the data with the governments in cases overseen by Judge Dan Polster in U.S. District Court in Cleveland. The agreement came with tight limits allowing only the plaintiffs to see the information.

But journalists for The Washington Post and HD Media, which owns The Charleston Gazette-Mail in West Virginia, have made public records requests seeking the data. The Charleston newspaper reported in 2016 on a version of data that it obtained for West Virginia, finding that 780 million pills flowed into the state over a six-year period during which more than 1,700 residents died in overdoses from prescription opioids.

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Environmental group claims ODNR illegally withholding records

From The Columbus Dispatch

The Ohio Department of Natural Resources is facing a lawsuit from an environmental group that alleges the department has illegally withheld public records.

The Athens-based Buckeye Environmental Network requested to view public records regarding oil and gas waste turned into a chemical product used by the Ohio Department of Transportation to deice roads, but its request was denied. The group says the chemicals are dangerous and harmful to the environment and that ODNR, which tests the chemical, would not allow the group to see the most recent tests on the product.

“We requested to review all records held by the agency in order to determine how and if the agency plans to take steps to remove this product from the consumer market. The product was found to contain high levels of both Radium 226 and 228. And with the pending legislation (House Bill 393 and Senate Bill 165) on this product, we believe that the public has a right to know how much radiation they have been or may be exposed to if they use this product,” executive director Teresa Mills said in a statement.

ODNR says it attempted to work with the environmental group through the records request process, but the group decided to pursue a lawsuit in Franklin County Common Pleas Court.

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