Ohio Public Records Law – A Useful Tool of the Labor Union

By: Max Rieker, OPBA Attorney

Thomas Jefferson wrote that “Information is the currency of democracy.”  In the world of law enforcement labor organizations, information may, indeed, be currency.  Information may be the difference between a 1.5% pay raise and a 2.5% pay raise.  It may mean the difference between a union member being terminated or having his job restored by an arbitrator.

Imagine buying car.  As the potential purchaser, you would love to know the true manufacturing and overhead cost of the car, so that you could negotiate as close to that number as possible, thus putting yourself in the best position.  Understandably, the salesperson does not want you to know the accurate numbers or the dealership’s true bottom line.

Likewise, in the field of public sector labor law, we sometimes find that management does not necessarily want to advertise its true financial picture.  The management negotiator may state or testify that a governmental entity’s General Fund balance has decreased sharply since the financial collapse of 2008, but that negotiator may go out of his or her way not to disclose that monies have since been strategically siphoned off and hidden in a capital fund or a special project fund.  Unscrupulous finance department personnel seem to have a knack for “hiding” money when it comes time for collective bargaining.

Public sector labor unions have always had many challenges with respect to getting business done on behalf of their members.  We are faced with unreasonably tight-fisted management negotiators and obstructionist bureaucrats at every turn.  Not the least of our challenges is the ability to obtain timely, relevant, and accurate information, especially from those against whom we bargain and litigate.

We need good, accurate information when collectively bargaining, when handling disciplinary matters, when processing grievances, and when litigating unfair labor practice charges.  So, how does one obtain such information from one’s opponent in these matters?  One answer is through properly made public records requests.  In practice, a bargaining unit member or a union advocate making such a request must be able to effectively navigate Ohio’s sometimes tricky Sunshine Laws so as to obtain that information which will actually make a difference.

This article seeks to provide some guidance on how to properly make a public records request.  Before making a public records request, the requester may wish to become familiar with Ohio Revised Code Chapter 149, under which most public records requests in Ohio are made.  Additionally, the requester should be armed with the latest edition of the Ohio’s Attorney General’s “Ohio Sunshine Laws – An Open Government Resource Manual,” which is commonly referred to as the “Yellow Book.”  The 2012 version of this comprehensive guide can be found at www.ohioattorneygeneral.gov/YellowBook.

One threshold issue related to making a public records request is whether the entity whose records are being sought is actually a “public office” within the meaning of R.C. 149.011(A), thus making it subject to public records requests.  Obvious public offices are cities, counties, townships, and villages.  Interestingly, any private entity that is the “functional equivalent” of a government entity is also properly subject to a records request.[1]

Once the requester establishes that the requestee is, in fact, a public office or functional equivalent, the requester needs to analyze whether the information sought is actually a “public record” within the meaning of R.C. 149.011(G).  A public record is:

• That which is stored on a fixed medium (i.e., tapes, e-mails, photos, film, video, paper, etc.), AND
• Is created or received by or has come under the jurisdiction of a public office, AND
• The record relates to what that public office does (i.e., the organization, functions, policies, decisions, procedures, operations, or other activities of the office).

Each and every one of these elements must be met in order for an item to be subject to a public records request.  Here are some practical examples of items which are not public records:

• An e-mail sent or received from a public sector e-mail account asking a coworker to go to lunch. Note that in order for an e-mail to be a public record, it must relate to what a public office does.
• A record not yet in existence. If a requester asks a City to create a document or record that does not already exist, the City has no obligation to create a record and release that information.
• A record that once existed, but has been lawfully disposed of in accordance with a public employer’s approved records retention policy. If a public office does not possess a record, then it has no obligation to produce it upon request.
• Notes taken by a member of a public office, if those notes are kept as personal papers (not official records), are kept for the employee’s own convenience, and other employees did not have access to the notes.[2]

There are some specific statutory exceptions to public records requests.  Examples include healthcare provider-patient records (a specific example of this where a County Jail is actually a health care provider for inmates).  Student records are another example.[3]  More importantly for law enforcement personnel is the statutory exemption for the residential and family information of peace officers, parole officers, probation officers, bailiffs, prosecuting attorneys, assistant prosecuting attorneys, correctional employees, youth services employees, firefighters, EMT’s, and BCI&I investigators.[4]  Likewise, Social Security numbers and direct deposit bank account information is statutorily protected from public records requests.

The final exception to the Public Records Act that will be discussed in this article is the Confidential Law Enforcement Investigatory Record.  A CLEIR is not a public record if it pertains to a “law enforcement matter” involving a specific suspicion of misconduct and the investigating agency has the authority to enforce law.  That misconduct must be criminal, civil, or administrative in nature, but does not include an investigation exclusively concerning internal personnel discipline.  If internal personnel discipline is a potential outcome, in addition to other criminal, civil, or administrative penalties which are also potential outcomes, then the CLEIR remains a non-public record.  However, if the law enforcement employer states that an investigation is exclusively concerning internal personnel discipline, then recorded material concerning the investigation is properly subject to a public records request.  If the release of a CLEIR, would reveal the name of an uncharged suspect, the name of a confidential source, put someone’s physical safety at risk, or reveal investigatory techniques or procedures, then the CLEIR may not be subject to a records request.

In terms of format, there is no special way of making a public records request.  Any “person” can make a records request.[5]  A request may be written or verbal.  The requester’s motivation for the request is not relevant, nor is the identity of the requester.  The requester must make the request specific enough so that the public office can fulfill the request, if it is possible to fulfill, and must indicate a mechanism for how to receive the information that he or she has requested.  Otherwise, there are no “magic words” necessary to make a lawful public records request.  The public office cannot require the requester to put the request in writing or identify himself or herself.

The tips discussed here are merely a starting point to a large body of law related to public records and open government.  Should you have any questions on the issue, please do not hesitate to contact your OPBA Attorney or Business Agent for further guidance.

[1]  See State ex rel. Oriana House, Inc. v. Montgomery (2006), 110 Ohio St. 3d 456.  Factors to be considered are whether the entity performs a governmental function; level of government funding; extent of government involvement or regulation; whether the entity was created by the government or to avoid the requirement of the Public Records Act.

[2]  See State ex rel. Cranford v. Cleveland, 2004 Ohio 4884.

[3]  See the Family Education Rights and Privacy Act of 1974 (FERPA).

[4]  See R.C. 149.43(A)(1)(p).

[5]  Person can include individuals, corporations, and other governmental agencies.