New Law Makes Fight for Public Records Easier

Thursday, September 1, 2016

filesAccording to current law (ORC 149.43), we the people have a right to access records kept by any public entity. School districts and any other state or federally run entities fall under that umbrella. The public entity is allowed to ask you to put the request in writing and they may ask you why you want the records, but you are NOT required to put the request in writing and you are NOT required to tell them why you want the records or what you’re looking for. The public entity must make the records available to you for inspection or, if you request, make copies of the records (they can charge you what it costs them to copy the records- nothing outrageous).

How quickly does a public entity have to respond to your request, you ask? The answer: “Within a reasonable time.” Unfortunately, the law is not very clear cut on how many days or weeks it may take to process your request. Generally, you have to consider the volume of records being requested. Therefore, it’s always best to narrow your request as much as possible, i.e. by date or subject matter.   If you haven’t received a response in 45 days, follow up and ask for an explanation or ask them to send it piecemeal as the documents are gathered.

It’s important to note that no public entity is required to generate a document that doesn’t already exist just because you requested it. For example, if you want to see a chart of the salaries of all redheaded teachers in the district—chances are, they don’t have such a chart, and they’re not required to make one for you.

There are several exceptions to our right to public records. We do not have a right to see medical records, DNA records, inmate records released to youth services or a court, intellectual property records, etc. Another exception is records which cannot be released pursuant to other state or federal laws--this includes educational records.

The Family Educational Rights and Privacy Act (“FERPA”, 20 USC 1232g(a)(4)(a)) gives parents rights to their child’s educational records and protects those same records from disclosure to third parties. (Some information, considered “directory information,” is not protected unless parents specifically opt out.) Therefore, school districts cannot release your child’s educational records, other than directory information, even if someone asks for them under the public records law, because FERPA protects those records.

If a public entity denies your request, or any part of your request, for public records, it must give you an explanation as to why it was denied, along with legal authority to support it. For example, if you request trial preparation records or medical records, the entity would likely refuse your request based on the exclusions contained in ORC §149.43(g) and (a). If you make your record request in writing, which I recommend, then the public entity is required to give the explanation of denial and supporting authority in writing.

Are you really entitled to these public records by law? Yes! Does that mean that you will always get them when you ask for them? No! Sometimes a public entity will fail to respond to you, or say no without explanation, or say no with an explanation that doesn’t pan out. Another form of refusal we see is when an entity refuses because a portion of a record is protected. In these instances, they’re required to redact or obscure the protected content, but still produce the document.

Currently, your only course of action to appeal their response is to seek mandamus with the common pleas court in your county. This can be costly and time consuming, not to mention intimidating.

However, a new law goes into effect in Ohio on September 28, 2016, which will make it easier for individuals to fight a denial of access to public records. Ohio is setting up a process in which the Ohio Court of Claims will now handle appeals. The process is expected to be much faster and less costly. First, a mediator will work with both parties to try to resolve the issue. If that doesn’t work, a special hearing officer will make a ruling within seven days. Nothing in Common Pleas moves that fast! And the cost? Just $25.00 to file the complaint.

As of September 28th, the complaint forms will be available online through the Ohio Court of Claims at: https://ohiocourtofclaims.gov/.

- Posted by Attorney Linda Gorczynski

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