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PIO 2012 Symposium September 14, 2012 Robin R. Mathews

Public Records. PIO 2012 Symposium September 14, 2012 Robin R. Mathews Associate Legal Counsel/Public Records Manager -and- Ashleigh R. Henry Legal Intern Ohio Department of Public Safety. Overview of Ohio’s Public Records Law.

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PIO 2012 Symposium September 14, 2012 Robin R. Mathews

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  1. Public Records PIO 2012 Symposium September 14, 2012 Robin R. Mathews Associate Legal Counsel/Public Records Manager -and- Ashleigh R. Henry Legal Intern Ohio Department of Public Safety

  2. Overview of Ohio’s Public Records Law Ohio’s public records act was enacted to allow open access to government processes.

  3. What is a Record? • Ohio Revised Code §149.011(G) • Any document, device, or item, regardless of physical form or characteristic, including an electronic record as defined in section 1306.01 of the Revised Code; • Created or received by or coming under the jurisdiction of any public office of the state or its political subdivisions; • Which serves to document the organization, functions, policies, decisions, procedures, operations, or other activities of the office.

  4. What is a Public Record? • Ohio Revised Code §149.43(A)(1) • "Public record" means records kept by any public office • “Kept by” means any record that is actually in existence and in the possession of the public office or person responsible for public records

  5. Ohio Public Records Act v. Freedom of Information Act (FOIA) The Freedom of Information Act applies only to federal agencies, and does not create a right of access to records held by Congress, the courts, or by state or local government agencies.

  6. Requesting Public Records Anyone can make a public records request. • Requests may be made anonymously • A public records request can be made in any manner the requester chooses

  7. Valid/Appropriate Request -- Duty of Requester • Information v. Record • BE SPECIFIC • Overly Broad Request (“any and all”) • Existing Record

  8. Responding to a Public Records Request • “Reasonable” amount of time • “At cost” • Existing format (or one that can reasonably be duplicated) • Redactions

  9. Non-compliance • A court can force the public agency to produce the records. • Agency may be required to pay damages to the requester and/or attorneys fees.

  10. Sample Request Dear Sir or Madam: This is a request under the Freedom of Information Act. This office requests that a copy of the following documents (or documents containing the following information) be provided to us: -Any & all training curriculum-basic and advanced; and -Any & all policies, procedures, manuals, handbooks, booklets and/or by-laws regarding the training of police officers that are in force and effect. We need these records to prepare for previously set court dates with the Licking County Municipal Court, and this request is time sensitive.

  11. Exceptions • Medical Records • Any document or combination of documents that: • 1) pertain to a patient’s medical history, diagnosis, prognosis, or medical condition, And • 2) generated and maintained in the process of medical treatment.

  12. Confidential Law Enforcement Investigatory Records (CLEIRs) (1) pertain to a law enforcement matter (2) have a high probability of disclosing any of the following: • The identity of an uncharged suspect • The identity of a source/witness • Specific confidential investigatory techniques/ procedures or specific investigatory work product • Information that would endanger the life or physical safety of law enforcement personnel, a crime victim, a witness, or a confidential information source

  13. Peace Officer Residential and Familial Information • Address • EAP Information • SSN, Phone #, Account #s, Medical Information • Beneficiary Information • Charitable/Employment Benefit Deduction • Information re: Spouse/Former Spouse/Child • Photograph – Undercover/Plain Clothes positions or assignments

  14. Catch-all Exception Records the release of which is prohibited by state or federal law: • HIPAA • OHLEG • LEADS • BCII • DPPA

  15. Other Records/Formats • Personal notes • Drafts • E-mails • Other Agencies’ Records

  16. Noteworthy Changes • Probation officers and bailiffs are now included in the Peace Officer exception. • A party is not “aggrieved” by the destruction of a record when the party’s objective in requesting the record is not to obtain the record but to seek a forfeiture for the wrongful destruction of the record. • Rhodes v. New Philadelphia (July 2011) • A civil action to recover a forfeiture cannot exceed a cumulative total of $10,000. • ORC 149.351 (September 2011)

  17. Practical Application/Pitfalls • Creating records unnecessarily • No duty to create records (e.g. lists) • Obtaining copies of records unnecessarily • Written request, name, purpose not required • Clarification/revision of requests • “Rolling” response

  18. Final Thoughts • Don’t take requests personally • When in Doubt, Check it out

  19. ??? Questions ???

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