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Home > Publications > Quill > New Ohio records law a good start, but holes remain



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Thursday, November 2, 2017
New Ohio records law a good start, but holes remain

Cleveland broadcaster shares experience as first journalist to test new process

By Dani Carlson

“Wait, what?” That was my initial reaction when I thumbed through the supposed fulfillment of my public records request from the city of Green, Ohio.

I quickly double checked the dates. It was May 3, 2016 -- 10 business days after my initial request. The public records fighter in me hoped that there must be some mistake.

There wasn’t.

Dani Carlson. (Photo by Dale McDonald)

I had filed a fairly routine public records request on April 20, 2016, for the personnel file, including any disciplinary actions, of a former employee of the small hamlet. I had received a tip that he had been fired, and I might be interested in the reason why.

Eight days after that request, I was told I could come pick up the requested information. I drove nearly 50 miles south from Cleveland, only to see a letter on the very front page of a stack of personnel documents.

The letter was dated April 26, six days after my initial request. It said the city had removed a termination letter from April 5 and destroyed all copies, and that the city was allowing him to retroactively resign instead of being fired.

Again — this all happened AFTER I filed a public records request for that letter.

It went on to say:

“We have further agreed to keep the terms of the resolution of your employment with the City confidential.”

Rereading that letter still makes me angry.

The big question, regardless of how the rulings play out, is whether this new process will change the way governments do business. In other words, if agencies know they will be dragged into the Court of Claims, will this prompt them to be more compliant on the front end?

I asked the secretary who provided the file why the termination letter was removed, and she said it was due to “case law.” But she couldn’t provide me with a single case. The law director, of course, wasn’t there.

Fuming, I called two of my mentors on the drive back, John Arguello and Ken Kolker at WOOD TV in Grand Rapids, Michigan. They confirmed that it sure seemed like a load of something.

After double-checking the law with our station attorneys, I sent a follow-up email to the city. I asked the law director to provide specific case names and citations that they thought justified destroying the termination letter after I'd filed a request.

A few days later, I received a response from the city’s law director, Stephen Pruneski. He wrote, “I have no obligation to provide you my legal analysis based upon my 31 years of legal experience; which is 31 more years than you.”

That is in direct opposition to Ohio public records law.

Pruneski continued with his attempted scolding by saying the city made an agreement with the employee, in part, to avoid a threatened lawsuit. Of course, a threatened lawsuit is not a legal reason to withhold public documents. The law director left his job with the city shortly after sending me that note.

Over the next few weeks, station attorneys fired off several angry letters to the city and spoke to the new law director over the phone. But short of filing a lawsuit against the city, it didn’t seem that I would get the records.

So I waited until Sept. 28, 2016, when a new Ohio public records mediation law went into effect.

Initially, the new law seemed like the promised land. It was, and is, a way to get documents without filing a cost-prohibitive lawsuit.

The process itself is simple: pay a one-time $25 fee and write how you feel you have been denied records. The filer can include any documentation, like emails and other paperwork, and the court will

serve the public agency. (This, in itself, is a big plus for cities that don’t respond to public records requests for months, or even years. I've had several cases like this with the city of Cleveland.)

The Ohio Court of Claims, based in Columbus, will then call and schedule a mediation by phone. The mediation can only be by phone — this is another thoughtful part of the law. It’s designed so that no one has to travel a significant way to fight their case in court.

If the phone mediation doesn’t work, a special master makes a decision on the case.

So far, 79 cases have been filed. Twenty-three of those are against the city of Cleveland, nine against the state of Ohio, and five against the county Cleveland calls home, Cuyahoga County. When it comes to public records disputes, Northeast Ohio seems to have cornered the market.

Most surprising to me as a journalist is who has filed these cases. Twenty-six were filed by attorneys or private investigators, 21 were filed by journalists, but the largest bulk of filers are regular community members.

The Clerk of Courts for the Ohio Court of Claims, Mark Reed, said that was a little surprising to him, too. “There’s no one way to categorize the requesters,” Reed said.

The individuals include parents looking for the names of substitute teachers, plus current inmates, elected officials, firefighters and former public employees.

“It’s a lot of people with a legitimate beef against a public agency,” Reed said. “They can’t get relief any other way; they learn about this process and take advantage of it.”

One of those filers is Mark Gerber, whose situation highlights one of the problems with the new Court of Claims system.

“The spirit of this new law is that … two country bumpkins can get information that should be in the public domain without having prior attorneys and stuff like that,” Gerber said. “The fact of the matter is, that’s not really true.”

Gerber, former fiscal officer for Liberty Township, is a private citizen. He filed a public records case against the township, a community of about 40,000 people just 20 miles north of Columbus. He said it was his only option after his request for notes related to the demotion of the township’s fire chief was denied. He said he thought the township didn't follow the law; the Court of Claims agreed.

But he still has no records. This is because the process allows for appeal, which the township did.

This forced Gerber to hire attorneys and go to the Court of Appeals to fight his case — eliminating the spirit of “expeditious and economical” judgment behind the court of claims process.

“[The new law] doesn't eliminate attorneys, and it should eliminate the attorneys,” Gerber said. “Maybe in 20 percent of the cases [it will], but I don't think it will for the other 80 percent.”

According to the Court of Claims clerk, 41 cases — more than half — have been resolved in mediation, and he said in “pretty much all” of those cases at least some information was released to the requester. But this number includes cases where the requester voluntarily dismisses his or her case (more on that later).

Fourteen cases went to a special master for a decision. In seven of those, two of which are mine, the requester has won. In four, the special master decided in favor of the public agency, and in three cases the decision was split. In two cases, one of which is Gerber's, the case has gone to an appeals court.

Gerber’s biggest objection to the new law and the new process is the right to appeal.

“They want a second review of the evidence by the appeals court. Well, they had their shot,” Gerber said. “I don’t think [the law goes] far enough. I think it’s a reasonable first step. I think it needs to be more well defined and more tilted toward the public asking these questions.”

That’s the general feeling I’ve gotten from people who have gone through the process: It’s a good first step.

Gerber’s case went to Ohio’s 5th District Court of Appeals. On Sept. 22 (10 months after he filed his initial public records case) the court sided with Gerber – who received financial support from SPJ’s Legal Defense Fund. But the story still isn’t over: Gerber doesn’t yet have his records, and said he’s still in discussion about when he will actually get them.

I, too, won my case against the city of Green, but I didn’t immediately get my file.

After the judge issued his order, Green's law director called me to say that in the three months since I’d filed my suit, the city had been sued in civil court by the subject of those personnel files. The law director told me the man had asked for a restraining order forbidding the city to release the information I’d asked for. She said she was going to ignore the Court of Claims judgment until a civil court judge eventually ruled on the restraining order.

There wasn't even a hearing date set to argue about the restraining order at that point. The issue is, the way the law's written, there’s no penalty for agencies that don't comply with the Court of Claims ruling.

If I didn't have access to an attorney at this point, then what?

“You shouldn’t have to pay an economic penalty like hiring a lawyer to get this stuff; that’s really not fair,” said Cleveland civil rights attorney David Malik.

Malik has filed several cases using the new public records appeal process, and many more before the process took effect. His firm has a stated goal of changing the community to prevent civil rights violations in the future. He focuses mainly on the city of Cleveland and Cleveland Police.

Despite believing that people shouldn’t have to hire an attorney to be successful in the new appeals process, after going through the process himself, he recommends the lay person get some help.

“I think what the lay person has to do is probably reach out to a very reasonably priced lawyer to get some help, or to make it really clear to the hearing examiner that they need their help,” Malik said. “It’s only user friendly if you [have] been savvy enough to really do your homework on where the documents might be.”

From the perspective of a trained lawyer, same verdict: The new process is a good first step.

One of the next steps to tackle is the “after-verdict” process. Currently a requester has two options:

1. Voluntarily dismiss the case once they have the records in hand. However, it will cost the requester about $30 to dismiss the case. And, with this option, the court will not rule if the agency was in violation. On the positive side, the requester has the documents and paid less than $50 out of pocket.

2. Continue through the process and hope the courts find the agency in violation. Should this occur, the requester is not required to pay the $30 dismissal fee. In many instances, this may be a good avenue for a journalist, as a “guilty” verdict can often be an important part of the story. However, going this route likely means a longer delay getting records that may be important to a timely story.

The big question, regardless of how the rulings play out, is whether this new process will change the way governments do business. In other words, if agencies know they will be dragged into the Court of Claims, will this prompt them to be more compliant on the front end?

The jury is still out, by all accounts.

Reed, from the Court of Claims, said he believes it is changing the way governments respond. He said resources are tight at every level, but he believes this new process is making local agencies realize they need to “re-deploy people” to meet the needs of the citizens requesting documents.

Malik, on the other hand, said he didn’t know the answer for every agency but had an idea about what it will mean for Cleveland.

“On the sunny side, you hope it does [change the culture], but on the realistic side it doesn't really seem to be a priority with the city of Cleveland — it really doesn’t,” Malik said. “We know things still get hidden, but it’s much improved over what it was.”

Gerber, who won his case but is still fighting in appeals court, said he doubts it will have any effect on the way government operates unless things (like penalties for not complying) change.

“I’d probably be pessimistic on the fact that (the new law) is highly unlikely to be beefed up and made stronger,” Gerber said.

To best sum it up, the law definitely provides more access. As a result, I’ve received hundreds of documents that I likely wouldn’t have had a chance of seeing. But I think there are some things that need to be fixed if the state truly wants to uphold the lofty goal set by the Ohio case Patterson v. Ayers: "The rule in Ohio is that public records are the people's records, and that the officials in whose custody they happen to be are merely trustees for the people.”

Dani Carlson is an Emmy Award-winning investigative journalist at WOIO, the CBS station in Cleveland, Ohio. She is also an adjunct instructor of journalism at Kent State University. Before moving to the North Coast, the Chicago native instructed at her alma mater, Northwestern University, spent six years in Grand Rapids, Michigan, at WOOD TV, and also worked in Fresno, California, Johannesburg, South Africa, and Lexington, Kentucky. Dislikes include public agencies not being transparent, and nothing makes her happier than fighting for, and getting, data, documents and a great story. On Twitter: @DaniCarlsonTV

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