3. Agenda Mission Statement Transformation of PRA by HB 9 Public Records Act Overview How to Comply with Public Records Requests Law Enforcement Exemptions Records Retention Open Meetings Act Q&A

4. Mission Statement Consistent with the premise that government at all levels exists first and foremost to serve the interests of the people, it is our mission and intent to at all times fully comply with and abide by both the spirit and the letter of Ohio’s Public Records and Open Meetings Acts.

5. Statement of Principles The Public Office: Will ensure that all personnel become and remain fully trained in and aware of the provisions of the acts Will adopt policies that encourage employees to immediately report incidents of non-compliance with the acts that they may observe Will do nothing that abridges the public’s right to obtain information about their government or that inhibits or discourages citizens from doing so

6. Statement of Principles The Public Office: Will do everything possible to aid those who are seeking information, including but not limited to, fully explaining the scope and operation of the Acts and assisting Citizens in the formulation of Requests Will construe the provisions of the Acts in a manner that favors compliance with requests for information Will seek guidance from the Office of the Ohio Attorney General whenever a question arises about the application of the Acts or about the appropriateness of a request for information Will clearly and concisely state the reason or reasons why a request for information has been denied

7. Mandatory Training and Agency Policies - H.B.9 Education Compliance Audits New Records Retention Commissions

8. Education Requires AG to develop, provide, and certify training programs and seminars about Public Records Law Requires all elected officials or their designees to attend a three hour Public Records training program approved by the AG once per elected term Requires the AG to develop and provide to all public offices a model public records policy Requires all public offices to prepare and prominently display a poster describing their public records policy

9. Starting point Agency drafts individual policy Based on public office’s types of records, costs of copying, normal business hours, unique exceptions, etc. Purpose of Model Policy

10. Compliance Requires the State Auditor to audit public offices for: –Compliance with the training of elected officials, and –Records policy provisions for all public offices

12. Modifies statutes governing various records commissions and creates additional records commissions For more information, please contact: Pari Swift, Assistant State Archivist Ohio Historical Society Local Government Records Program (614) 297-2553 localrecs@ohiohistory.org Records Retention

13. Definitions Obligations Exemptions Liabilities Public Records Act Overview

14. Definitions Any local or state governmental entity or Any private entity that is the functional equivalent of a governmental entity Public Office

15. Definitions A record kept by a public office that: –Has information stored on a fixed medium (tapes, e-mails, photos, films, videos, papers, etc.), and –Is created or received by, or coming under the jurisdiction of, a public office, and –Documents what the public office does; the organization, functions, policies, decisions, procedures, operations, or other activities of the office Public Records

16. Obligations Provide prompt inspection of public records Upon request, provide copies within a reasonable period of time To any person

17. How to Comply With Public Records Requests

20. Agency Response

21. Negotiation

22. Documentation

23. Rules of Special Note Any “person” can make a public records request including corporations and other governmental agencies No special format or special language required A request may be written or verbal The requester’s motive is not relevant. However, the request must at least be specific and describe in detail the records being sought. A public office cannot require the requester to put it in writing or reveal his/her name

24. Must be plainly visible, or advise requester Redaction Obscuring or deleting any information that is exempt from the duty to permit public inspection or copying from an item that otherwise meets the definition of a record.

25. CLEIRS HOME ADDRESS E-MAILS NOTES/DRAFTS STUDENT RECORDS Issues of Note

26. Liabilities for Violating the Public Records Act 1.No Criminal Liability 2.Attorney General CANNOT investigate or enforce 3.Mandamus Action by requester A legal action filed in common pleas, appellate court, or the Ohio Supreme Court to enforce the public records act 4.Civil Penalty 5. Attorney’s fees and court costs

27. Electronic Records Handle electronic records just like any other tangible record Analyze based on content, rather than storage medium Select additional rules will apply

28. May only charge for a copy is the actual cost of making the copy. This does not include employee labor. Transmit via ordinary U.S. Mail or any other means of delivery or transmission. Exists so long as a computer is already programmed to produce the record. State ex rel Scanon v. Deters, 45 Ohio St.3d 376 (1989). Items expressly exempted within the Electronic Signatures Act, RC. 1306.23433 Additional Rules for Electronic Records Must satisfy the definition of a “public record” under R.C. 149.43(A) Copies must be made available on paper, the medium on which it is kept or any other medium readily available as an integral part of the operations of the public office. See R.C. 149.43(B)(2). Cannot charge for the public to inspect over the Internet. OAG 00- 46 May be a compilation of otherwise public records, may itself be a public record. See State ex rel. Kerner v. STRS (1998), 82 Ohio St. 3d 273; State ex rel. Cincinnati Post v. Schweikert (1988), 38 Ohio St. 3d 170. The following Electronic Records are specifically exempt from the Public Records Act: Items that satisfy the definition of Infrastructure Records under R.C. 149.433

29. 1.Determine whether the Electronic Record “exists” for the purposes of the PRA 2.Determine the “layout” of the Electronic Record 3.Determine whether the Definition of a “Public Record” is satisfied Practical Problems 1.Identifying the Electronic Public Record 2.Overly broad request for Electronic Public Records 3.Requests for Electronic Public Records in media other than paper or manner kept Request for Electronic Records Steps for Identifying the Record and Handling Overly Broad Requests

30. Note No obligation to provide complete duplication of the voluminous files of a public office No obligation to provide Internet Access to Electronic Public Records No obligation to create new Electronic Records or store records on particular media

31. Suggested Method for Responding to an Oral or Written PRR Receipt of Public Records Request Write receipt letter confirming substance of request and … Explain situation to requester and… Inform that records will be available w/in reasonable or prompt period and … Locate & Gather records and… Perform legal review and… Redact and Copy and make available pertinent records for… Records ARE immediately AVAILABLE on-site then… Public Office personnel will make records available w/in a reasonable or prompt period of time and during the normal course of business for… Public office promptly conducts a review of circumstances and facts to determine if … Completion of public records requests. May charge appropriate copying and postage fees, if applicable. Records NOT AVAILABLE b/c off-site, voluminous, legal review/ redaction necessary then…

32. Records Retention Obligations Liabilities Schedules

33. Shall make only such records as are necessary to document the organization, functions, and essential transactions of the agency, and to protect the legal and financial rights of the state and persons directly affected. R.C. 149.40 May not destroy, mutilate, or otherwise dispose of records except as provided by law or under the rules of the records commissions. R.C. 149.351 Shall organize and maintain public records in a manner that they can be made available for inspection or copying, and Shall have available a copy of its current records retention schedule at a location readily available to the public. R.C. 149.43(B)(2) Obligations of Public Offices for Records Retention

34. Any person may file either or both of the following, in common pleas court: –A civil action for injunctive relief to compel compliance with this section, and an award of reasonable attorney’s fees, and/or –A civil action to recover a forfeiture of one thousand dollars for each violation, and an award of reasonable attorney’s fees R.C. 149.351 Liabilities for Violation of Records Retention Laws

35. Record Series Title Series Description - include information that: –Describes the purpose and function of the record series –Tells what types of information can be found in the records –Describes how the records are arranged Set retention period, format(s) to be retained, and disposal method(s) Records Retention Schedule Contents Create the schedule for someone who has no knowledge of the records

36. Factors Determining Retention Periods Administrative Purposes –Records used by the office to carry out its duties Fiscal Tracking –Pertaining to the receipt, transfer, payment, adjustment, or encumbrances of funds. Documents subject to audit. Legal Value –Documents relating to rights or obligations of citizens, or of the agency that created it Historical Value –Documents an agency’s organization, policies, decisions, procedures, operations, and other activities –Contains significant information about people, places, or events –Secondary value: source of information for persons other than the creator

37. Sample Records Retention Schedule

38. Retention Schedule Approval Process Local Records Commission (State Agencies – DAS) Ohio Historical Society –Review and forward within 60 days to Auditor of State –Review and approve or disapprove within 60 days The same agencies review Applications for One-time Disposal of Obsolete Records

39. Records Retention Information For more information, please contact: Pari Swift, Assistant State Archivist Ohio Historical Society Local Government Records Program (614) 297-2553 localrecs@ohiohistory.org

40. Examination of Exemptions Unless the public office can identify an exemption which clearly requires or permits withholding a requested record, it must disclose the record.

42. Mandatory/Catch-all Exemption Any state or federal law which prohibits the release of specified records – RC 149.43(A)(1)(v) Records are prohibited from disclosure under these laws, even if the public office would like to disclose it If any state statutes, rules, federal statutes or regulations prohibiti public disclosure, then a public office MUST NOT release that record in response to a Public Records Request

43. Student Records School officials may not disclose personally identifiable information about students without the written consent of the students or their parents, unless permitted to do so by the Act. Family Education Rights and Privacy Act of 1974 (FERPA)

44. Discretionary Exemption A record may be “confidential” in the sense that it is exempt from disclosure under the express language of the Public Records Act This means that a public office does not have to disclose the public record in response to a request, but may if it so chooses If any state statutes, rules, federal statutes or regulations designate certain records as not a “public record” under R.C. 149.43 then they ARE NOT subject to the provisions of the Public Records Act

45. A Waiver A voluntary disclosure of a record that could be appropriately withheld under one of the exemptions, particularly if the disclosure was to a person whose interest is antagonistic to those of the public office. The disclosure MUST have been voluntary and to a member of the public.

46. Mandatory Exemptions Physician-patient privileged records Student education records Criminal history records obtained through LEADS Criminal records sealed pursuant to statutorily authorized court order DNA records obtained from inmates Concealed carry permit records Exemptions (Examples) Discretionary Exemptions Trial Preparation Records “Security” and “Infrastructure” records Confidential Law Enforcement Investigatory Records (CLEIRs) Information pertaining to the recreational activities of children younger than 18 Non-medical records identifying recipients of Golden Buckeye cards * Refer to Yellow Book for additional exemptions

47. Exemptions Summary If a record falls squarely in the “catch all” exemption, WITHHOLD If the record falls squarely under one of the other express exemptions, use CAUTION and withhold or disclose at your discretion If a record is clearly public with no applicable exemptions, DISCLOSE

48. Spotlight on: Law Enforcement Exemptions

49. Step 1 Must pertain to a law enforcement matter consisting of: Specific suspicion of misconduct Conduct violates law- i.e., criminal, civil or administrative (Not routine personnel discipline) Agency has authority to enforce law Uncharged Suspect Confidential Source or Witness Physical Safety Investigatory techniques or procedures Investigatory Work Product Confidential Law Enforcement Investigatory Records (CLEIRs) Two Step Analysis When Exempting Records from Release Step 2 Release of record would disclose the following:

50. Uncharged Suspect No Arrest or Indictment Confidential Law Enforcement Investigatory Records (CLEIRs) Examination of Step Two Confidential Source Promised Confidentiality; Only identity not information Physical Safety Must be self-evident Investigatory Techniques or Procedures Must be sophisticated; Lose efficacy if widely known Investigatory Work Product All complied documents; Expires when case is over

51. Autopsy Reports Lab Reports Crime Scene Photos Witness Statements Upon case completion, these records of investigatory work product become public: WARNING: A public office should always consult with its legal counsel to verify that the case is indeed over! CAUTION

52. Notes: CLEIRs Exemption expires when all actions and proceedings in the case are over Records that are ALWAYS public 911 Tapes Initial Incident Reports Contractual Agreements Resumes for Public Employment

53. Safety Officer Exemptions Peace Officer Parole Officer Prosecuting Attorney Assistant Prosecuting Attorney Correctional Employee Youth Services Employee Firefighter EMT

54. Safety Officer Occupation Exempted Information Includes: Personal Address except for state or political subdivision Social Security Numbers Residential Telephone Numbers Bank Account Numbers Debt/Charge/Credit Card Numbers Emergency Telephone Numbers Medical Information Beneficiaries’ Names Voluntary Salary Deductions Photographs of undercover or plain clothes positions or assignments

55. Should a journalist desire select residential or familial information about a specific peace officer, parole officer, prosecuting atty, assistant prosecuting atty, correctional employee, youth services employee, firefighter or EMT that is exempt, then the journalist must put the request in writing. The request shall include the journalist’s name, title and the name and address of the journalist’s employer. The request shall state that this disclosure of the information sought would be in the public interest. Exception To This Rule

56. Additional Exemptions of Interest to Law Enforcement Security Records Infrastructure Records Probation & Parole Records DNA Database Records Certain Juvenile Records –Juvenile Courts –Child Protective Service Records of Incarcerated Individual

58. AFIS (Automated Fingerprint Identification System) OHLEG CCW LEADS SORN DNA Law Enforcement Tools

59. Example – Inmate Request Are inmates entitled to public records? What is the request? Overbroad? Negotiate! Intended use does matter here - if the request concerns a criminal conviction or investigation, then R.C. 149.43(B)(8) applies If the sentencing judge permits the request, CLEIRS still applies – is the requested case over? Should you charge an inmate for copies? In advance? Must the public office present records for inspection? Surrogates

60. Open Meetings Act Overview Definitions Obligations Liabilities

61. Definitions Meeting Prearranged gathering of a majority of members of public body conducting or discussing public business Public Body Any decision-making body of state, county, township, municipal corporation, school district or political subdivision, or local public institution

62. Obligations To take action & deliberate on public business in open session To give appropriate notice of the meeting To take and file minutes of the meeting

63. Types of Meetings Regular Meeting Meeting held at prescheduled intervals Special Meeting Any meeting that is not a regular meeting Emergency Meeting A special meeting that requires immediate action due to unforeseen emergency

64. No Can A Member Participate In A Meeting By Telephone? A member “shall be present in person at a meeting open to the public to be considered present or to vote at the meeting and for purposes of determining whether a quorum is present at the meeting.” R.C. 121.22(C)

65. Are Work Sessions “Meetings” Subject to the Open Meetings Act? Yes Prearranged work sessions, retreats, etc. where public business is discussed among a majority of the members of the public body are “meetings” and must be as noticed and open, as with any other meeting.

66. Voting at Meetings The OMA does not govern the method by which a public body must vote unless a particular statute requires a specified method. The public body may use its own discretion in determining the method of voting it will use. The Attorney General recently advised that the Open Meetings Act does not permit any voting by secret ballot.

67. Executive Sessions Must be preceded by a specific motion, a second, and a roll call vote Motion should state the specific topic(s) that will be discussed in Executive session Meetings must always begin & end in open session. Cannot adjourn from Exec. session Proper Procedures

68. Executive Sessions 1.Personnel 2.Property 3.Court Action (w/attorney) 4.Collective Bargaining 5.Matters Confidential by law 6.Security Arrangements 7.County Hospitals’ Trade Secrets Acceptable Topics for Discussion

69. Executive Sessions Who may members include? –anyone you invite to stay Who may the members exclude? –anyone you choose to exclude Keep in mind that there is no penalty (under the Open Meetings Act) for revealing what was discussed in Executive Session. Choose attendees accordingly. Present in Executive Session:

70. Restrictions On Executive Session There can be No Decision-Making No Voting - other than to vote on a motion to recess or to return to open session Non-permitted matters may Not be discussed in Executive Session, even if intertwined with permitted matters

71. Records from Executive Session: Executive Sessions Executive Session does not make any material confidential, including documents or other records handed out Other confidentiality provisions (property bids and offers, “catch-all” matters) Analyze public records issues separately Handing records to member of public in Executive Session may waive any exceptions No minutes for Executive Session

72. Fines Injunction Attorney’s Fees Court Costs Action Invalidated Possible Removal from Office Penalties

73. 1.Privacy and Public Records 2.Court Records 3.Electronic Records 4.Exemptions/Exceptions 5.Legislation Discussion Topics

74. 1.Are police officers’ personnel files public records? City of Toledo, v. James Spicuzza (2005) 2.Can the actual removal, mutilation, destruction, transfer or damage to a public record a violation of the PRA? Kish v. City of Akron (2006) 3.Must a court clerk make public records available without redacting Social Security numbers? Montgomery City Public Defender v. Siroki (2006) 4.Can an informal document request of employee information include a request for tax returns? Fisher v. Cleveland (2006) 5.Is the court clerk required to provide an inmate a copy of the sentencing judgment entry from his criminal matter? Watson v. Dan Foley (2005) Hypotheticals

75. For Additional Information or to Schedule a Presentation for your Group… Call Ohio Attorney General Marc Dann’s Office 614-466-2872 Public Records Unit Yellow Book: www.ag.state.oh.us Questions & Answers

76. Sponsored by Attorney General Marc Dann ’ s Office 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 that most dreaded and envied kind of knowledge, I mean of the characters and conduct of their rulers. - A Dissertation on the Canon and Feudal Law, John Adams (1765)