Ohio Education Alert

    View Authors January 2007
    Substitute House Bill Number 9, signed by Governor Taft on December 27, 2006, includes many significant changes and additions to the laws pertaining to the disclosure and retention of public records, summarized below. These changes and additions are to take effect September 29, 2007.

    Handling Public Records Requests

    Redaction: A public record may contain information that is exempt from disclosure. If such information is redacted, the requester of the public record must be notified of the redaction or it must be plainly visible.

    Reasons for Denial of Request: If a request is denied, in whole or in part (through redaction of certain information), the requester must be provided with an explanation of the denial – including legal authority. If the initial request was in writing, this explanation must also be in writing. Note that requiring a requester to disclose identity or motive "constitutes a denial of the request" for a public record, unless state or federal law requires or authorizes otherwise – as in the case where student "directory information" is requested.

    Requesting Information from Requester of Public Records: A public office may ask for a public records request to be put in writing, and may ask for identity and motive, but only (a) after disclosing that such is not mandatory, and (b) when such "would benefit the requester by enhancing the ability of the public office or person responsible for public records to identify, locate, or deliver the public records sought by the requester."

    Ambiguous and Overly Broad Requests: If a requester makes an ambiguous or overly broad request or otherwise has difficulty reasonably identifying the public records requested, the public office or the person responsible for the requested public record may deny the request, but must give the requester an opportunity to revise the problematic request "by informing the requester of the manner in which records are maintained by the public office and accessed in the ordinary course of the public office's or person's duties."

    Making Copies: Public offices are not required to allow requesters to make copies themselves.

    Payment of Costs in Advance: Costs of providing copies (including duplication costs, postage costs, other costs of delivery or transmission, etc.) may be required to be paid by requesters in advance.

    Damages, Fees and Costs

    Generally: A person allegedly aggrieved by a failure to comply with the provisions of the Public Records Act in RC 149.43(B) may commence a mandamus action in court seeking compliance with the Act, court costs, reasonable attorney's fees and, if applicable, "statutory damages."

    Statutory Damages: Statutory damages are to be awarded in the amount of $100 for each business day (commencing with the day on which a requester files a mandamus action to recover statutory damages) that a public office or person responsible for the requested public records failed to comply with RC 149.43(B) – up to a maximum of $1,000. To obtain such damages (and court costs), a requester must have transmitted "a written request by hand delivery or certified mail to inspect or receive copies of any public record in a manner that fairly describes the public record or class of public records to the public office or person responsible for the requested public records." A court may reduce or decline to award statutory damages if it makes certain determinations that generally pertain to the reasonableness of the conduct in light of the then-current state of the law and public policy considerations.

    Attorney Fees: Reasonable attorney's fees may be awarded (subject to reduction as described below) upon a judgment that orders the public office or person responsible for the public record to comply with RC 149.43(B). Reasonable attorney's fees shall be awarded (subject to reduction) upon either (a) a failure to respond - affirmatively or negatively – to the public records request "in accordance with the time allowed under [RC 149.43(B)]," or (b) a failure to make good on a promise to permit the requester to inspect or receive copies of the public records requested within a specified period of time. Reasonable attorney's fees are to include reasonable fees incurred to prove the reasonableness and amount of, and entitlement to, those attorney's fees. A court may reduce or decline to award attorney's fees if it makes certain determinations that generally pertain to the reasonableness of the conduct in light of the then-current state of the law and public policy considerations.

    New Training Requirement

    Elected officials or their appropriate designees must attend three hours of public records training approved by the Attorney General for every term of office. Compliance is subject to audit.

    Training sessions provided by the Attorney General's office are to be free of charge. Public records training by other entities may be contracted with the Attorney General; these entities may charge a reasonable registration fee, which may be paid from public funds.

    Public Records Policy

    Creation: Public offices must adopt a public records policy for responding to public records requests. Public offices may use the model policy that the Attorney General is to develop and provide to all public offices as guidance. The policy generally may not (a) limit the number of public records that the public office will make available to a single person (although mailings of public records may be limited to 10 per month under certain circumstances), (b) limit the number of public records that the public office will make available during a fixed period of time, and (c) establish a fixed time period before the public office will respond to a public records request, unless that time period is less than eight hours. Compliance is subject to audit.

    Distribution: First, the adopted policy must be distributed to the employee who is the records custodian or manager. This employee must acknowledge receipt of the policy. Second, a public office must create a "poster" that describes the policy, and must post it in a conspicuous place in the public office and in all "branch offices." Third, if a public office has developed a manual or handbook of general policies and procedures for all employees, the policy must be included in it. Compliance is subject to audit.

    Records Commissions & Retention Schedules

    A hole in the statute pertaining to school district records commissions has been filled. Now, local and joint vocational school districts (along with city and exempted village school districts and educational service centers) are required specifically to have records commissions, consisting of the board president, treasurer and superintendent. These commissions are required annually to meet and review applications for one-time disposal of obsolete records and schedules of records retention and disposition. The statute sets forth the basic procedures - involving the Ohio Historical Society and the Auditor of State - for approval of applications for disposal and schedules of retention and disposition.

    The records retention schedule must be available at a location readily accessible to the public.