February 25, 2014
By Darrell Wacker
Ohio’s open records laws took a significant blow in a pair of Ohio Supreme Court decisions last week that could benefit public officials who, either through neglect or intention, attempt to skirt the laws’ intentions.
The court ruled on February 18 that a South Euclid woman was not allowed to recover attorney fees for her efforts to uncover documents sought from the city of South Euclid even though she was entitled to recover damages up to $1,000 due to the city’s unresponsiveness to her valid public records requests.
In its ruling, the court said a change in the statute in 2007 meant that attorney fees could only be awarded if a court orders the records to be produced. In the South Euclid case, the city turned the documents over before a court order had to be issued - but that was months after the original request, and only after she hired an accountant to prove the records she requested actually existed.
The ruling brought a strong statement from the Ohio Newspaper Association (ONA) of which this newspaper is a member.
“This is an egregious case,” said Dennis Hetzel, executive director of the ONA in a press release. “The city stonewalled the citizen requesting the information for months, and she even had to get an accountant to show that records the city claimed it didn’t have really existed.”
Hetzel rightly pointed out that Ohio citizens seeking public records have little recourse other than the courts if their requests are ignored.
“Public-records cases aren’t typical lawsuits,” said Hetzel. “The relief you want is the record, not money, and you shouldn’t have to be wealthy to fight City Hall. In this decision, the court has made it much more difficult to recover attorney fees.”
Hetzel is absolutely correct.
The ability for individuals and the media to review public records is a vital check on government power at all levels. These documents, which the taxpayers own, are routinely used by news media, including this newspaper, to help provide comprehensive and accurate reporting.
Attorney General Mike DeWine calls Ohio Sunshine Laws (as they are commonly referred to) “among the most comprehensive open government laws in the nation” in his 2013 Open Government Resource Manual.
While that may be true, these Supreme Court rulings undermine that statement and, in my opinion, the intent of the legislature.
The average person or small company that has a valid records request rebuffed will now have to make a decision whether they can afford to continue the fight for the documents - documents they are legally entitled to.
Public officials, who at times selfish or other sinister motivation for keeping public records hidden, now have a license to size up the financial means of a person or entity seeking documents in the hopes of delaying to the point the request is abandoned. Delay or denial of records could become strategies if officials determine a person may not have deep enough pockets to continue the fight for documents in court.
Supreme Court Justice Sharon Kennedy cut to the heart of the matter in her dissent.
“If no fees could be awarded unless the court had ordered a party to produce records, it would allow a public office to sit on a public-records request until a case was filed and then turn over the records before the court had a chance to issue an order,” Kennedy wrote.
Hetzel said the ONA would be approaching legislators to make changes in the statute, but expressed hope that the Supreme Court would revisit its ruling in the future.
One way or another, that remedy would be in the best interest of all Ohioans.
Darrell Wacker can be reached at 937-890-6030 ext. 206 or on Twitter @VandaliaDrummer.