Everything you always wanted to know about public records but were afraid to ask ...

1. Everything you always wanted to know about public records but were afraid to ask ... or in other words ... What are public recordsand why should I care?

2. OK, so what is a public record? • It’s a record held by a public office.

3. You’re kidding me. I came here for that? • It’s a bit more complicated ... • A record is any device ... including paper, of course ... but also photographs, audiotape, videotape, etc. ... that is stored on a fixed medium ... • Is created, received, or sent under the jurisdiction of a public office ... and • Documents the organization, functions, policies, decisions, procedures, operations, or other activities of a public office.

4. That doesn’t seem so bad. It’s the ‘public office’ part that’s hard, right? • Nope. A public office is exactly what you’d think. • It’s any entity that performs a public service and is supported by public funds. • And since you work at a public institution, the ‘public office’ part of the law means it applies to you, too!

5. Then let’s move on to ‘Why should I care’ • Because it’s the law of the Great State of Ohio. • And we never, ever break the law.

6. What does the law say? • “... All public records shall be promptly prepared and made available for inspection to any person at all reasonable times during regular business hours.”O.R.C. 149.43(B)(1)

7. Thanks. That’s as clear as mud. What does it mean? • It means that public offices have two primary obligations: • To provide prompt inspection of public records. • And to provide copies of public records within a reasonable period of time. • And it means that as a faculty, staff member, or an administrator of this college, you may have to disclose many of the records that you create or keep.

8. You didn’t mention students. Don’t they get to join in the fun? • Nah. They’re just students.

9. So who wants these public records? How might this come up? • Government • News media • Organizations and associations • Private individuals • Students • Parents

10. What do we know about the law? • It favors the disclosure of records ... • Courts will broadly construe the act toward the disclosure of records. • But the courts will narrowly construe the exemptions ... with any doubt being resolved in favor of disclosure. • If challenged in court, the public office has the burden of proving that the records ... or redacted portions ... are exempt from disclosure.

11. Exemptions? Now we’re talking! • That’s right. 22 of them. • 21 express exemptions. • And one ‘catch-all’ exemption.

12. 22 exemptions? Wouldn’t it just be easier to say what is allowable? • Probably. But then lawyers and politicians wouldn’t have jobs. • And we don’t want that, right?

13. OK. 21 express exemptions.What are they? • Peace officer, firefighter, or EMT residential and familial information • Trial preparation records • Civil Rights Commission • DNA databases • Rehabilitation and Correction/Youth Services • Job and Family Services • Proprietary information of Ohio Venture Capital Authority

14. And more ... • Public Children Services Agency • County Hospitals trade secrets • Putative Father Registry • Child Fatality Review Board • Nursing home administrator licensure • Abortion • Adoption • Probation and parole

15. Any that mean something to me? • Intellectual property • Donor records • Medical records • Security and infrastructure records • Confidential law enforcement investigatory records • Records concerning recreational activities of people under the age of 18

16. What’s the ‘catch-all’ exemption? • “Release of which is prohibited by law.” This applies when a provision of a state or federal law prohibits public disclosure of a certain type of record. Some of the common types include ... • Medical board investigative records • Records of a certified public accountant • Ohio Ethics Commission proceedings • Attorney General files on consumer protection or charitable trust investigations • Records sealed by court order

17. Again ... any that apply to me? • Attorney-client privileged information • Tax records of individuals, including estate and federal tax • Employee and family records relating to medical certifications and medical histories created for purposes of the Family Medical Leave Act. • And the biggie ... Student education records maintained by public schools, colleges, universities and private universities receiving public funding. • In other words ... FERPA.

18. FERPA? Sounds familiar. Didn’t you put me to sleep at a FERPA training? • Probably. I think I heard you snoring. • So to recap ...

19. FERPA • The Family Educational Rights and Privacy Act prohibits schools from releasing the educational records of students, including any personally identifiable information.

20. Release it ... No, don’t release it.I’m so confused. • Don’t worry. We’ll get through it. • In essence, any record not covered by an exemption ... and remember, those exemptions include FERPA ... must be released to anyone who makes a public records request.

21. What type of record is left?What’s allowed to be released? • Plenty. Things like ... • Meeting minutes • Evaluations of staff and faculty ... even student evaluations of their instructors • Personnel records ... but may be partially redacted • Promotion and tenure records • Administrative committee documents • Professional correspondence • Student exams and classroom records ... redacted so as to comply with FERPA • E-mails

22. E-mails? Who needs to know my wife wants me to bring home some milk? • Nobody ... really. • But the electronic communications you have with your colleagues may be public records. • Even an e-mail with multiple subjects can be redacted for information that isn’t public. • For instance ... an e-mail that says “Let’s tee off at 3:30. Isn’t our dean a jerk?” Part of that message is public and part not. Can you guess which?

23. Here’s another example ... • Frustrated by nasty e-mails from his faculty and their early tee-times, your former dean has left the institution in a rage. You are now the member of a dean search committee, and have taken personal notes during candidate interviews. The local newspaper is asking for all records of the committee, including notes taken by individual committee members and e-mailed candidate evaluations circulated among the group. Public records? • You bet!

24. Can I delete my e-mail after I read it? Which records do I have to keep? • That would be too easy. • But a public office does have considerable discretion in determining what records will be maintained. • Your institution may have a Records Retention Policy or perhaps other policies and procedures.

25. Next thing, you’re going to tell me that my drafts and notes are records. • You’re catching on quick. • If the definition of a “record” has been satisfied ... including that it documents the organization, functions, policies, decisions, procedures, operations, or other activities of the office ... then your notes and drafts may be considered public records.

26. Any good news? • Sure. Any notes kept solely as part of an employee’s personal papers ... kept for your own convenience ... and not shared within the office or with others are not public records. They are called “sole-possession notes.”

27. Not bad. Anything else? • A new Ohio Supreme Court case says that home addresses and phone numbers of public employees may not be public records.Dispatch Printing Co. v. Johnson

28. That’s a relief. The last thing I need is another stalker. Anything else? • The fruits of your research. • This decision came out of a suit involving animal rights activists who sought the research protocols that Ohio State University scientists used in their studies on laboratory rats. • The court came down strongly on the side of the university and applied the intellectual property exception to research studies.Physicians Comm. for Responsible Medicine v. OSU Bd. of Trustees

29. That’s great news! Research on lab rats is huge at two-year colleges. More? • This is important. We’re talking about a public records law ... not a public information law. • That means that a public office has the obligation to timely provide public records ... those that are already in existence. • It does not, however, mean that someone has to create information in order to respond to a request. • In other words, if you have the record, you have to attempt to find it and provide it. If you don’t have the record, you don’t have to make a new one.

30. Caveats, though? Right? • Of course. When it comes to electronic records, an item is deemed to exist if a computer can easily produce the record that’s been requested.Scanlon v. Deters

31. What if I don’t want to provide it? What happens if I just say ‘No’?

32. You’re kidding?!! State prison?!! • Yeah! Just kidding! • But I really like the pictures.

33. So what really will happen to me? • There is no criminal or civil penalty, although you can be sued and the court may compel release and order the payment of attorney fees. • In a recent Ohio Supreme Court case involving the improper destruction of records, the court found that every single sheet of paper within a logbook was an individual record, and then fined the public office $1,000 for each page that was destroyed ... some $840,000 in all. • And watch out for House Bill 9 ... which passed the House and is now being considered by the Ohio Senate. It provides for monetary penalties.

34. Why do they make us do this? • Our democracy flourishes best when its government operates in the sunshine, is available to the citizens it serves, and is open to public scrutiny. • “Liberty cannot be preserved without a general knowledge among the people, who have a right and a desire to know; but besides this, they have a right, an indisputable, divine right to the most dreaded and envied kind of knowledge, I mean of the characters and conduct of their rulers.” – John Adams

35. That’s kind of sappy. Don’t you have anything better? • “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; therefore anyone may inspect such records at any time ... or unreasonably interfere with the discharge of the duties of the officer having custody of the same.” -- Supreme Court of OhioPatterson v. Ayers

36. Any more advice in case I get one of these public records requests? • Have a member of your institution’s administration call the Office of the Ohio Attorney General’s Education Section at 614-644-7250 and ask to speak to your assistant attorney general. • We deal with these every day ... and we’re happy to help you respond!

37. This was fascinating.How can I learn more? • Visit the Attorney General’s web site at http://www.ag.state.oh.us/legal/sunshine.aspand read the 2006 Ohio Sunshine Laws Update ... commonly referred to as the ‘Yellow Book.’

38. Hearty applause • Thank you for your attention!