Ohio Sunshine Laws 101: Franklin County Public Health by Ren L. - - PowerPoint PPT Presentation

EASTMAN & SMITH LTD.

ATTORNEYS AT LAW

Established 1844

Ohio Sunshine Laws 101: Franklin County Public Health

by René L. Rimelspach 614-564-1443 rlr@eastmansmith.com

Ohio Sunshine Laws 101: Franklin County Public Health December 2 & 10, 2015

• Open Meetings Act, R.C. 121.22
• Public Records Act, R.C. 149.43
• Records Retention, R.C. 149.381

Why are public records important?

• Ohio Supreme Court Justice Charles Zimmerman: “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 the trustees for the people…”. Patterson v. Ayers, 171 Ohio St. 369 (1960)

“Information is the currency of democracy.” Thomas Jefferson

Ohio Sunshine Laws 101

• Open Meetings Act
• Found at R.C. 121.22
• Not our focus today; but one
• f two parts of

governmental openness

• Official actions and

deliberations in public, open sessions, unless an exception applies

• Public Records Act
• Found at R.C. 149.43
• Intended to be interpreted

liberally to facilitate broad access by the public to the public’s records

• Applies to “records kept by

a public office”

• FCPH is a public office

What is a Public Record? R.C. 149.011(G), 3-part definition:

• any document, device, or item, regardless of physical form or

characteristic, including an electronic record;

• 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

• ffice.

What is a Public Record?

• A public office is only responsible for its own records
• A public office is not required to create a record that does not

already exist in order to respond to a request

• If a document or other item does not meet all three parts of the

definition of a record, then it is a non-record and is not subject to the public records act

What is a Public Record? Part I

• Any document, device, or item, regardless of physical form
• r characteristic, including an electronic record
• Must be in some recorded medium in a fixed form – form does

not matter, as long as it can record information

• Some examples: paper or electronic documents, videos, maps,

photographs, voicemail messages

What is NOT a Public Record? Part I

• A public employee’s thoughts
• Unrecorded oral communications (i.e., what someone said)
• A request for advice given
• A request for the public agency’s unwritten policy or

interpretation

• Records that do not yet exist
• Records that are not in a public agency’s possession or control

What is a Public Record? Part II

• Created, received by, or coming under the jurisdiction of

any public office of the state or its political subdivisions

• Need not be currently on-site or in public office’s physical

possession

• If records are held or created by another person / entity

performing public function for a public office, still may be “under jurisdiction of” the public office

What is a Public Record? Part III

• Which serves to document the organization, functions,

policies, decisions, procedures, operations, or other activities of the office

• Junk mail or spam (paper or electronic); some employee

personal information kept for administrative purposes (i.e., emergency contacts); personal calendars / appointment books; personal correspondence or personal email addresses

What is a Public Record Common Questions

• E-mail: it depends – is it a personal, non-business email, or

does it document a function of the office? E-mail is a record format, not a record itself

• Notes: it depends – were notes made for the employee’s own

convenience, to help recall events? Do other employees have access to the notes? Were the notes used to create official meeting minutes?

What is a Public Record Common Questions

• Drafts: usually – but may be addressed through records

retention schedules

• Computerized databases: maybe – no requirement to create

records that don’t exist; however, if computer program can perform search and produce compilation or summary report, then yes

What is a Public Record Is my personal information a public record

• State ex rel. Dispatch Printing Co. v. Johnson, 106 Ohio St. 3d

160, 2005-Ohio-4384

• State employee home addresses not public records subject to

disclosure

• Why? does not document the organization, functions, policies,

decisions, procedures, operations, or other activities of the state and its agencies

• Limited exceptions – work from home; residency requirement

for employment purposes

Exceptions to the Public Records Act: Two Kinds

• MUST NOT release
• sometimes under civil or

criminal penalties

• Public office has no choice

but to deny request

• “records the release of

which is prohibited by state

• r federal law”
• MAY release, but may

choose to withhold

• Discretionary disclosure
• Public office is not obligated

to release records, but may do so without fear of punishment under the law

Public Records Exceptions

• Public entity can’t agree by contract to keep records

confidential

• FOIA (the federal freedom of information act) does not apply

to state or local public entities

• Many records are subject to more than one exception – must

carefully consider whether records are MUST NOT or MAY NOT disclose

• Public entity can be deemed to have waived ability to withhold

a record through disclosure

Release of Records Prohibited: Some examples

• Medical records that pertain to a patient’s medical history,

diagnosis, prognosis, medical condition

• Attorney trial preparation records
• Confidential law enforcement investigatory records

(“CLEIRS”)

• Intellectual property records (connected to state universities) /

trade secrets

• Catch-all provision – some state or federal law validly enacted

explicitly prohibits disclosure

Release of Records Prohibited: Some examples

• Social Security numbers
• Many types of juvenile records
• Infrastructure or security records – i.e., records used to protect
• r maintain the security of a public office
• Attorney-client privileged records and attorney work product

records

Partial Release May Be Appropriate

• Statutory definition of “redaction” – obscuring or deleting any

information that is exempt from the duty to permit inspection

• r copying from an item that is otherwise a record
• Public office may redact / withhold only that part of the record

subject to an exception

• UNLESS, excepted information is so “inextricably

intertwined” with entire record that redaction is not possible

How to Make Redactions

• A redaction is the legal equivalent to a public records denial
• The public office must notify the requestor of any redactions
• r make redaction plainly visible
• The public office must provide the requestor with an

explanation, including legal authority, setting forth why information was redacted

Requesting Public Records – Who May Make a Request?

• Anyone – the requestor does not need be an Ohio resident, or

even a U.S. resident

• Requestor does not need to even be a person; a corporation,

government entity, or other body may also request records

• A requestor does not need to identify themselves – can remain

anonymous

Public Records Requests for Commercial Purposes

• Unless a specific statute states otherwise, it is irrelevant

whether intended use of records is for commercial purposes

• However, public office can limit the number of records

transmitted by U.S. mail to 10 per month when for commercial purposes

• The following are not commercial purposes: reporting or

gathering the news; reporting or gathering information to assist citizen oversite of the activities of government; non-profit educational research

Journalists are Special

• Several statutes grant “journalists” enhanced access to records

– “journalist” is defined broadly

• For example, actual residential addresses of civil service

employees

• However, journalists must make request in writing and sign

request; must identify self by name, title, and employer’s name and address; state that disclosure of information sought is in the public interest

Requesting Public Records – Content of Request

• The request must be for existing records – cannot make a

request for unrecorded information (again, FCPH is under no duty to create a record to respond to a request)

• The requestor must identify requested records with

“reasonable clarity” – no duty to figure out what requestor wants

• Requestor does not have to make request in writing, or use any

particular wording

Requesting Public Records – Ambiguous or Overly Broad Request?

• An ambiguous request lacks the clarity needed for the public
• ffice to ascertain what records the requestor is seeking –

request is vague or subject to multiple interpretations

• An overly broad request is one that is so inclusive, public
• ffice cannot determine what records wouldn’t fall under

request – the equivalent to having to open every file and every drawer to find responsive records

Examples of Ambiguous or Overly Broad Public Records Requests

• All records containing

particular names or words

• Every record created during

a particular time period

• “any and all records

pertaining in any way”

• All records regarding a

particular topic

• All emails between X and Y
• Every record of a particular

record category

Public Office’s Duties Regarding Ambiguous or Overly Broad Requests

• Public office must give requestor the chance to revise or

clarify request

• Public office must explain how the office maintains its records

to assist requestor

• Public office can suggest ways to narrow the request that

might satisfy requestor

• Public office can ask requestor to submit a written request,

explain intended use for information, or ask for identity; but must tell requestor such information is not required

Public Office’s Duties Regarding Requests in General

• Public office has no obligation to respond to a duplicate

request

• Public office cannot deny a request on the grounds that it will

interfere with the operation of the public office – however, when a request is unreasonable, public office may not have to comply

• For example, a requestor does not have the right to the

complete duplication of voluminous files of a public office

Fulfilling Records Requests

• The requestor can choose to inspect records on-site or obtain

copies

• Requestor can choose copy medium – paper, electronic, cd,

etc.

• Public office can only charge actual cost or records (not

including staff time) and may require pre-payment

• Public office can charge for postage

When Must A Record Request Be Fulfilled?

• There is no set, pre-determined time period for responding to a

public records request

• Inspection must be provided “promptly”
• Copies must be made available in “a reasonable amount of

time,” “without delay,” and “with reasonable speed”

• reasonableness depends on the facts and circumstances of the

particular request

Activities that Determine “Reasonableness” of Response Time

• Time necessary to clarify or

seek revision to ambiguous

• r overly broad request
• Time to locate records or

retrieve them from off-site storage

• Time to examine records for

necessary redactions (for example, social security numbers)

• Time for review by legal

counsel

• Time to prepare copies on

requestor’s choice of medium

• Time to receive pre-

payment of costs from requestor

• Time to schedule inspection

Public Records Lawsuits – Enforcement and Potential Liabilities

• Public records statute is “self-help” – cannot ask a public
• fficial to initiate legal action
• An aggrieved party can file a “mandamus” action against a

public office or a person responsible for public records, in common pleas court, court of appeals, or Ohio Supreme Court

• When a denial for public records has been made, no other

appeal is available or necessary before filing a mandamus suit

Public Records Lawsuits – Enforcement and Potential Liabilities

• To succeed in a public records mandamus suit, the requestor

must prove a “clear legal right” to the records, and that the public entity has “a clear legal duty” to provide them

• If requestor wins, entitled to an award of all court costs;

possibly attorney fees; and statutory damages ($100 per day for each business day denied records, up to a max of $1,000)

• Possibly responsible for forensic recovery of wrongfully

deleted / destroyed records

FCPH’s Public Records Policy

• Provide a prompt inspection of public records
• Upon request, provide copies within a reasonable period of

time

• Archive Storage takes one day to request and receive box, then

time to locate record – same day requests are discouraged because of extra cost

FCPH’s Public Records Policy

“It is FCPH’s responsibility and duty to liberally release records and staff should not deny requests unless absolutely necessary due to exceptions under law.” “It is important to note that records requests are equal to your

• ther job duties – not less important. It is the policy of FCPH that

records requests should take priority and be filled as quickly as possible.”

FCPH’s Public Records Policy Steps to Follow

(1) As requestor to fill out Public Records Request Form (not required); if requestor declines, employee should complete form with available information; (2) Explain to requestor that record will be provided in a prompt manner – give an estimated date – follow up or provide to Deidra Wolf so she can follow up; (3) It is program staff’s responsibility to compile records; Deidra Wolf is available to assist. If you need help to determine whether a record is public, or needs to be redacted, see Deidra Wolf or Mitzi Kline, and notify your supervisor of the request; (4) Once records are gathered, give completed request to Deidra Wolf who will release records and maintain info for FCPH’s records to assure consistency.

FCPH’s Policy Re: Public Records Charges

• FCPH may not charge for staff time to provide records
• It is the policy of FCPH that the first 100 pages of copies are free;
• ver 100 pages, $0.05 each
• Audio or video duplicates are actual cost to reproduce (ask Deidra

Wolf to determine)

• Before duplication is done for large requests, notify requestor of

estimated cost

• It is permissible to require up front payment, but not common FCPH
• practice. Payment is due prior to records release.
• Must mail copies by regular U.S. mail if so requested (not fed ex or

courier); records can also be emailed or faxed

• If a file review is requested, a FCPH staff member must be present

during review.

Common FCPH Records

Subject to Release  Names of complainants  Draft minutes of meetings even if not signed or approved; but should be stamped “DRAFT”  Most employee records / evaluations / disciplinary records  Resumes and employment applications Not Subject to Release  Records pertaining to a medical condition or medical records generated for treatment  Records containing information compiled in anticipation of litigation  Infrastructure records re: FCPH’s building, or security records  Social security numbers

FCPH’s Policy Re: Lost or Destroyed Records

• If FCPH records are lost, accidently destroyed, or corrupted,

staff must immediately report such fact to supervisor

• Supervisor must document what happened on an Incident

Report Form

• Copies of Incident Report Form should go to Human

Resources and Deidra Wolf until records retention period has passed

• Failure to report lost, accidently destroyed, or corrupted

documents may result in discipline

Records Retention Policy

• What is a records retention policy? A list of every type of

record created and maintained by FCPH, approved by Ohio Historical Society (n.k.a. Ohio History Connection)

• Different time periods for different kinds of records
• Franklin County assists FCPH with its records commission
• When in doubt, DON’T THROW IT OUT

Records Retention Policy

• The case of Kish v. Akron, 109 Ohio St.3d 162, 2006-Ohio-

1244

• A “record” may be a single document within a larger file of

documents as well as a compilation of documents

• A “violation” of the Public Records Act includes any

destruction of a public record that is not permitted by law - $1,000 per destroyed record

• 860 individual compensatory time records for two employees

– no malicious intent – cleaning out a storage room after comp time policy ended

• $1.7 million dollar verdict at trial, and eventually a $983,000

negotiated settlement (now capped at $10k)

A Special Topic - HIPPA

• HIPPA only applies to 3 covered entities: (1) healthcare

providers; (2) a health plan; (3) a healthcare clearinghouse (i.e., billing services)

• HIPPA does not apply when Ohio Public Records Act requires

release

• Ohio Supreme Court has held that HIPPA does not supersede

state disclosure requirements, even if requested records contain protected health information

EASTMAN & SMITH LTD.

ATTORNEYS AT LAW

Established 1844

Questions?

René L. Rimelspach 614-564-1443 rlr@eastmansmith.com