Public Records Sunshine Law PIO 2011 Symposium August 26, 2011 Robin R. Mathews Associate Legal Counsel/Public Records Manager Ohio Department of Public.

Public Records Sunshine Law

PIO 2011 Symposium

August 26, 2011

Robin R. MathewsAssociate Legal Counsel/Public Records Manager

Ohio Department of Public Safety

Overview of Ohio’s Public Records Law

Ohio’s public records act was enacted to allow open access to government processes.

Records

Ohio Revised Code § 149.011(G)

•"Records" includes 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.

“Public Record”

Ohio Revised Code § 149.43(A)(1) •"Public record" means records kept by any public office

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.

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

Valid/Appropriate Request -- Duty of Requester

• Information v. Record• BE SPECIFIC– Overly Broad Request (“any and all”)

• Existing Record

Responding to a Public Records Request

• “Reasonable” amount of time• “At cost”• Existing format (or one that can reasonably

be duplicated)• Redactions

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

Dear Records Administrator:

Pursuant to the Freedom of Information Act, I am requesting any and all records regarding employee A including, but not limited to the personnel file and all training records. Additionally, please provide me with all past, present and future internal investigations pertaining to employee A.

Time is of the essence regarding this public records request. As you are aware, the law requires you to make the records available in 3 days. Unless I am promptly notified to the contrary, I plan to be at your office on Wednesday August 31, 2011 to inspect the public records requested above.

In addition, I may also bring my own photocopying equipment, as well as audio and video duplication equipment and supplies, to make copies of the requested records during my inspection visit.

John Q. Citizen

Exceptions

Medical RecordsAny document or combination of documents that:1) pertain to a patient’s medical history, diagnosis, prognosis, or medical condition,And2) generated and maintained in the process of medical treatment.

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

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

Catchall Exception

• Records the release of which is prohibited by state or federal law

• HIPAA• OHLEG• LEADS• BCII• DPPA

Other Records/Formats

• Personal notes• Drafts• E-mails• Other Agencies’ Records

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

Final Thoughts

• Don’t take requests personally• When in Doubt, Check it out

??? Questions ???