1. STEPHEN P. POSTALAKIS BLAUGRUND, HERBERT, KESSLER, MILLER, MYERS & POSTALAKIS, INCORPORATED 300 WEST WILSON BRIDGE ROAD, SUITE 100 WORTHINGTON, OHIO 43085 (614) 923-3112 SPP@BHMLAW.COM OHIO ASSOCIATION OF COUNTY BOARDS SERVING PEOPLE WITH DEVELOPMENTAL DISABILITIES 2011 SPRING CONFERENCE HILTON AT POLARIS MAY 19, 2011 Ohio’s Public Records Act

2. R.C. §149.43 County Board is a public office. R.C. §149.011 defines “records” (3-part test):  (1) Document, device, or item stored on a fixed medium and (2) created or received by or coming under the jurisdiction of the Board, (3) which serves to document the organization, functions, policies, decisions, procedures, operations, or other activities of the office.  Public record is any record held by a public office. R.C. §149.43(A)(1).

3. R.C. §149.43 Is this a record? Not everything is, because they do not document the activities of the public office. Does the public office actually use the document?  Not a question of whether could use

4. Personnel Files Records within personnel files generally are public records:  Payroll records/Timesheets  Employment application forms/Resumes  Training course certificates  Position descriptions  Performance evaluations  Leave conversion forms  Letters of support or complaint  Forms documenting receipt of office policies, directives, etc.  Forms documenting hiring, promotions, job classification changes, separation, etc.  Disciplinary investigation/action records, unless exempt from disclosure by law

5. R.C. §149.434 County Board must create a database or list that include the name and date of birth of all public officials and employees elected or employed by the County Board. The database or list is a public record. Applies to all County Board employees, but not members as they are not elected.

6. Personnel Files Records in personnel files that are not public records:  Social Security Numbers  Home addresses and telephone numbers of public employees  Medical information (protected under ADA/HIPAA, not Ohio law)

7. Emails Status as a record depends on the content of the message.  If an e-mail created by, received by, or coming under the jurisdiction of the County Board serves to document the organization, functions, etc. of the County Board, then it meets the three part test.  If an e-mail does not serve to document the activities of the County Board, then it does not meet the definition of a record.

8. Emails Sent from home or private account? Location of transmission does not change status of record (analogous to mailing an official document from home).

9. Notes Personal notes of public officials generally do not constitute public records. Notes have been found not to be public records if they are:  kept as personal papers, not official records;  kept for the employee’s own convenience (for example, to help recall events); and  other employees did not use or have access to the notes.

10. Computer database County Board is not required to search a database for information and compile or summarize to create new records. If a computer program can perform the search and produce the compilation or summary requested, then the record is deemed to exist. If reprogramming is necessary, record is not deemed to exist.

11. Client records Records regarding individuals served by county board are not public records.  R.C. §5123.51; R.C. §5126.044.  Any information regarding client in employee’s disciplinary record must be redacted. Unless a minor, parent that is not a guardian does not have right to records.

12. Rights and Obligations of requester Must identify the records he or she is seeking “with reasonable clarity.” Must not be overly broad, and must describe what is being sought “specifically and particularly.” County Board is not compelled to produce public records when the underlying request is ambiguous or overly broad.  A request for “any and all records containing any reference whatsoever to a particular person.”

13. Rights and Obligations of requester Don’t need to make a request in writing, or identify him- or herself.  Requirement to do so is a denial of request. May ask requester to provide identity, or the intended use of the records, or make the request in writing, when the public office believes that any of these would help the public office identify, locate, or deliver the requested records.  Must first let the requester know that he may decline this option.

14. Rights and Obligations of requester Can request the specific medium for the records:  On paper;  In the same medium as County Board keeps it; or  On any medium upon which County Board office or person responsible for the public record determines the record can “reasonably be duplicated as an integral part of the normal operations of the public office….”  CD or by email.

15. Obligations of County Board Must organize and maintain public records “in a manner that they can be made available for inspection or copying. Must respond to a public records request, even if Board does not have records responsive to the request.  If deny a particular request, do not have to provide an additional response to a follow-up request asking for the same records.

16. Obligations of County Board Must promptly prepare and make records available for inspection to any person at all reasonable times during regular business hours.  “Without delay” is not immediately. Must make copies of the records available at cost and within a reasonable period of time. “With reasonable speed” is not “without a moment’s delay.” Cannot complain of too much expense, or too much time involved, or too much interference with normal duties.

17. Obligations of County Board Law allows County Board to deny any overly broad or ambiguous records request.  Required to give the requester the opportunity to revise the request by explaining how it ordinarily maintains and accesses the records it keeps. Overly broad:  All records containing particular names or words;  Any and all records kept by the office, including but not limited to, those having to do with a particular topic;  Every report filed with the public office for a particular time period (if the office does not organize records in that manner).

18. Obligations of County Board Must adopt a public records policy.  May not limit number of public records that Board will make available to a single person;  May not limit number of public records that it will make available during a fixed period of time; and  May not establish a fixed period of time before it will respond to a request for inspection or copying of public records, unless that period is less than eight (8) hours. Must create and post a poster describing public records policy.

19. Obligations of County Board If redact records:  Redaction must be plainly visible to the requester, or  Must notify the requester of the redaction. If a request is ultimately denied, in part or in whole, must provide the requester with an explanation, including legal authority, setting forth why the request was denied.

20. Records Management and Retention Each county has county records commission that provides rules for retention and disposal of records of the county and reviews applications for one-time records disposal and schedules of records retention and disposal submitted by county offices. When county records are approved for disposal, copy of the records list is sent to the State Auditor, who may disapprove the action. Also, Ohio Historical Society must have chance to select records of continuing historical value for its custody.

21. Records Management and Retention R.C. Chapter 149 contains restrictions on public body’s ability to destroy or otherwise dispose of public records. “All records are the property of the public office concerned and shall not be removed, destroyed, mutilated, transferred, or otherwise damaged or disposed of, in whole or in part, except as provided by law or under the rules adopted by the [appropriate] records [commission]."  R.C. §149.351.

22. Records Retention Any number of time periods that apply:  Client Records: Life (R.C. §5126.044).  Payroll Records: Three (3) years (R.C. §4111.08 and Fair Labor Standards Act, 29 C.F.R. 516.5).  Medicaid records: up to six (6) years (from payment or completion of audit).  Personnel records, discipline (effectiveness of is determined by policy or collective bargaining agreement) and layoff: Life (under some schedules).  FMLA Records: Three (3) Years.

23. Records Retention If properly destroyed, then no entitlement to the records under the Act. If retention schedule does not address the particular type of record in question, the record must be kept until the schedule is properly amended to address that category of records.  All records, not just public records, are subject to the retention schedule. If a public record is retained beyond its properly approved destruction date, it keeps its public record status until it is destroyed and is thus subject to public records requests.

24. Records Retention Penalty for improper destruction can be costly. A person has one (1) year from the date of the discovery of the violation to file an action, and has the burden of providing evidence that records were destroyed in violation of R.C. §149.351.511. The Supreme Court has held that both a single document in a file as well as the file itself can each be records, and the number of violations will relate in some way to the number of records involved, the fines can add up.

25. Records Retention In Kish et al. v. City of Akron, two former city employees sued the City of Akron, alleging the city inappropriately destroyed 860 records documenting compensatory time the employees had earned. The Supreme Court upheld an $860,000 fine for the unauthorized destruction of 860 city employee time sheets that had been kept in two separate files.  The Court held that each individual time sheet was a record in and of itself, and that destruction of each time sheet constituted a violation for purposes of the civil penalty ($1,000 per sheet).

26. Special Issues- Deleted emails If there is evidence showing that records in e- mail format have been deleted in violation of a records retention and disposition schedule, the public office has a duty to recover the contents of deleted e-mails and to provide access to them. If demonstrated, court will determine relief available to the requester.

27. Special Issues- Deleted emails Relief:  There must be a determination made as to whether deleted e-mails have been destroyed, as there is no duty to create or provide non-existent records.  The requestor must make a prima facie showing that the e-mails were deleted in violation of applicable retention schedules, unrebutted by defendant(s).  There must be some evidence that recovery of the e-mails may be successful.  While the expense of the recovery services is not a consideration, the recovery efforts need only be “reasonable, not Herculean,” consistent with the general duties under the Public Records Act; and  There must be a determination made as to who should bear the expense of forensic analysis.

28. Special Issues- Applications Conflicting Supreme Court opinions: No general exception that protects resumes and application materials obtained by public offices in the hiring process. Public has “an unquestioned public interest in the qualifications of potential applicants for positions of authority in public employment.”

29. Special Issues- Applications When board of education used a private search firm to help hire a new treasurer, it was required to disclose the names and resumes of the interviewees.  Fact confidentiality is promised to applicants is irrelevant. Obligation to turn over application materials and resumes extends to records in the sole possession of private search firms used in the hiring process.  State ex rel. Consumer News Servs. v. Worthington City Bd. of Educ., 97 Ohio St.3d 58, 2002-Ohio-5311.

30. Special Issues- Applications Application materials may not be public records if they are not “kept by” the office at the time of the request.  School board engaged a private search firm to assist in its search for a new superintendent. During the interview process, the school board members reviewed and then returned all application materials and resumes submitted by the candidates.

31. Special Issues- Applications The Enquirer made a public records request for any resumes, documents, etc., related to the superintendent search. Because no copies of the materials had been provided to the board at any time outside the interview setting and had never been “kept”, the court denied the writ of mandamus.  State ex rel. Cincinnati Enquirer v. Cincinnati Bd. of Educ., 99 Ohio St.3d 6, 2003-Ohio-2260, at ¶14.

32. Special Issues- Communications Be sure to communicate the status of any request with the requester. Court of Appeals found a violation of R.C. §149.43(B)((1) and awarded attorney fees to the requester, because the amount of time taken to fulfill the records request was not “reasonable,” especially because the public office did not communicate with the requester about the status of the request in the interim. Court also found that although the public office’s denial of a portion of the request as overly broad/ambiguous was justified, the denial should have been made earlier.  State ex rel. Mun. Constr. Equip. Operators' Labor Council v. City of Cleveland, 2010 Ohio 2108 (8th Dist. Ct. of App.).

33. Questions?? Thanks for attending!