Ohio gets failing grade in public records audit

Published 12:00 am Saturday, June 12, 2004

Joanne Huist Smith walked into the Eaton Police Department in southwestern Ohio and asked to see the most recent police reports. The record clerk turned her down.

''He said, 'It's just too much of a headache. There are too many,''' said Smith, a Dayton Daily News reporter who helped conduct a statewide survey on the availability of public records in Ohio.

Public employees asked to provide common records on an unconditional and timely basis followed Ohio law only about half the time, according to results of the survey conducted on April 21, although some auditors sought records near that date. More than 90 people from 42 newspapers, The Associated Press, two radio stations, the University of Dayton and Ohio University asked to see public records in all of Ohio's 88 counties.

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Government officials and employees regularly questioned the need for the records, asked for requests in writing and demanded to know the name of the person who wanted the record, all in violation of Ohio law.

''There are still many government agencies and staff who think that they own public records, and that they can deliver those records to the public and press at their convenience. That's simply not the way it's supposed to

work,'' said David Greenfield, president of Copley Ohio Newspapers and chairman of the Ohio Coalition for Open Government, which sponsored the audit. The coalition was established by the Ohio Newspaper Association, which represents 83 daily and 163 weekly newspapers.

Ohio's open records law is often seen as a tool available only to reporters looking for information about public officials or agencies.

But the law is meant to help anyone gain access to certain information, including reports about crime, house sales and taxpayer dollars being spent by schools.

Failure to follow the law carries no penalties, though a court can award attorney's fees if a person is successful in suing for records.

Ohio's results are similar to audits of public records in several other states and reflect diminishing access to records, especially since the Sept. 11 terrorist attacks, said Lucy Dalglish, executive director of the Arlington, Va.-based Reporters Committee for Freedom of the Press.

''Things have gotten dramatically worse,'' Dalglish said. ''The shutdown in access in information that started at the federal level is being pushed down to the state level.''

Ohio's new concealed weapons law prohibits people from learning who has received a permit. An exception allows the media to request lists by county.

A bill pending in the House would give state health officials more power to limit the release of information about investigations into public health emergencies. Another bill would restrict information available from court records.

Results published in February from a similar audit in Florida found that 43 percent of government agencies violated that state's open records law. An audit in Montana last year found that sheriff's departments denied more than a third of records requests.

Similar results in Indiana following a 1998 audit led to the creation of a public access counselor position. The counselor, attorney Michael Hurst, mediates disputes between the public and reporters and government officials, and issues rulings on formal complaints filed over problems getting records.

Ohio's survey tested the government's response to requests for records available under the law. Such information is available to anyone, even if they are not an Ohio resident.

Survey participants, most of whom were reporters, went to offices where they wouldn't be recognized. They did not volunteer their names or identify themselves as reporters unless asked.

The auditors sought six records, including salaries for school superintendents and police chiefs, police incident reports and school treasurer's phone bills.

Of 491 responses considered in the final results, auditors were able to inspect 246 records, or 50 percent, on the day of the request. Of those 491, 13 records, or about 3 percent, were made available by the next day. Some responses were not included because auditors were recognized as members of the media or the records being sought did not exist.

The state's open records law requires documents be promptly prepared and made available at reasonable times during business hours. The project applied the requirement liberally, giving agencies credit if they provided the record within 24 hours.

Auditors were sometimes denied access to records because employees were too busy or policies required written requests. On 20 occasions, or 4 percent, requests were denied because workers or officials erroneously said a document was not a public record.

Bellefontaine city schools told Rebecca Sullivan, a reporter for the Bellefontaine Examiner, that the treasurer's phone bill was not a record that could be released. It is.

''She was actually very nice to me, but it was just pretty obvious they weren't going to give it me,'' Sullivan said. Superintendent Larry Anderson said Sullivan should have received the records.

''She should have had those and we probably screwed up - it wasn't intentional, believe me,'' Anderson said.

Requests were met with resistance in numerous municipalities:

- In Cleveland, an auditor trying to find the mayor's executive expense form and police chief's salary was sent to the mayor's office, finance department and law department before learning that it would take a week to see the information and up to a month to receive a copy.

- In Lisbon in northeast Ohio, an auditor was charged $5 for a one-page police incident report. The law says public agencies can charge only for the cost of producing the copy.

- In Youngstown, the mayor taped the conversation with the person asking for a copy of his executive expense report. Mayor George McKelvey said he did so only after learning the person was a reporter with The (Youngstown) Vindicator.

''It's not only to hold me accountable for what I say, but I also hold reporters accountable for reporting accurately what I say,'' said McKelvey, who often tapes reporters' interviews.

He didn't have a problem with the records' request. ''Public records are public. It's that simple,'' McKelvey said.

Attorney General Jim Petro, the state's top law enforcement officer, said time and money constraints are no excuse for denying public documents.

''The records requested in this audit are clearly public in nature and, when available, should have been provided in a timely manner,'' said Petro, a Republican.

Those who asked for superintendents' pay received the information within 24 hours 28 percent of the time. In 22 percent of requests, they received the information after meeting conditions - such as written requests - not required under law. The information was denied 48 percent of the time.

Wauseon Exempted Villages Schools in Fulton County cited a school district policy stating that a public records request had to be made five days in advance.

Hollie Reedy, an attorney with the Ohio School Boards Association, said such policies are not enforceable because they violate the law.

''You can have whatever you want in your board policy, but if someone doesn't want to fill out a written request, districts cannot compel you to do that,'' she said.

Results were better for receiving police pay and incident reports, with 64 percent of requests for chiefs' salaries granted within 24 hours and 60 percent for incident reports.

Still, there were problems. A police officer in Morrow County erroneously said that under state law, he could require the person seeking the record to file a written request.

Not all officials were suspicious. A Wilmington clerk immediately pulled the police chief's salary and cross-checked to make sure the record was current. She then made a copy of the record even before one was requested.

A secretary handed Bill Reader, an Ohio University journalism professor, the Morgan County commissioners' minutes without question.

''The minutes were seen as being such an obvious public record it just didn't enter her mind not to cooperate,'' Reader said.

The audit underscores the importance of records and public employees' knowledge of the state's open records law, Dalglish in Virginia said.

Public officials ''don't own those records, they just have custody of them,'' she said. ''The public has very liberal visitation rights.''