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Significant Changes and Additions to Public Records Laws
Substitute House Bill Number 9, signed by Governor Taft on December 27, 2006, includes many significant changes and additions to the laws pertaining to the disclosure and retention of public records, summarized below. These changes and additions are to take effect September 29, 2007.
Handling Public Records Requests
Redaction: A public record may contain information that is exempt from disclosure. If such information is redacted, the requester of the public record must be notified of the redaction or it must be plainly visible.
Reasons for Denial of Request: If a request is denied, in whole or in part (through redaction of certain information), the requester must be provided with an explanation of the denial – including legal authority. If the initial request was in writing, this explanation has to be in writing. Note that requiring a requester to disclose identity or motive "constitutes a denial of the request" for a public record, unless state or federal law requires or authorizes otherwise – as in the case where personally identifiable student information is requested.
Requesting Information from Requester of Public Records: A public office may ask for a public records request to be put in writing, and may ask for identity and motive, but only (a) after disclosing that such is not mandatory, and (b) when such "would benefit the requester by enhancing the ability of the public office or person responsible for public records to identify, locate, or deliver the public records sought by the requester."
Ambiguous & Overly Broad Requests: If a requester makes an ambiguous or overly broad request or otherwise has difficulty reasonably identifying the public records being requested, the public office or the person responsible for the requested public record may deny the request, but must give the requester an opportunity to revise the problematic request "by informing the requester of the manner in which records are maintained by the public office and accessed in the ordinary course of the public office's or person's duties."
Making Copies: Public offices are not required to allow requesters to make copies themselves.
Payment of Costs in Advance: Costs of providing copies (including duplication costs, postage costs, other costs of delivery or transmission, etc.) may be required to be paid by requesters in advance.
Damages, Fees and Costs
Generally: A person allegedly aggrieved by a failure to comply with the provisions of the Public Records Act in RC 149.43(B) may commence a mandamus action in court seeking compliance with the Act, court costs, reasonable attorney fees and, if applicable, "statutory damages."
Statutory Damages: Statutory damages are to be awarded in the amount of $100 for each business day (commencing with the day on which a requester files a mandamus action to recover statutory damages) that a public office or person responsible for the requested public records failed to comply with RC 149.43(B) – up to a maximum of $1000. To obtain such damages (and court costs), a requester must have transmitted "a written request by hand delivery or certified mail to inspect or receive copies of any public record in a manner that fairly describes the public record or class of public records to the public office or person responsible for the requested public records." A court may reduce or not award statutory damages if it makes certain determinations that generally pertain to the reasonableness of the conduct given the then-current state of the law and public policy considerations.
Attorney Fees: Reasonable attorney fees may be awarded (subject to reduction as described below) upon a judgment that orders the public office or person responsible for the public record to comply with RC 149.43(B). Reasonable attorney fees shall be awarded (subject to reduction) upon either (a) a failure to respond – affirmatively or negatively – to the public records request "in accordance with the time allowed under [RC 149.43(B)]," or (b) a failure to make good on a promise to permit the requester to inspect or receive copies of the public records requested within a specified period of time. Reasonable attorney fees are to include reasonable fees incurred to prove the reasonableness and amount of, and entitlement to, those attorney fees. A court may reduce or not award attorney fees if it makes certain determinations that generally pertain to the reasonableness of the conduct given the then-current state of the law and public policy considerations.
New Training Requirement
Elected officials or their appropriate designees must attend three hours of public records training approved by the Attorney General for every term of office. Compliance is subject to audit.
Training sessions provided by the Attorney General's office are to be free of charge. Other entities, including private entities, can contract with the Attorney General to provide public records training, and may charge a reasonable registration fee, which may be paid from public funds.
Public Records Policy
Creation: Public offices must adopt a public records policy for responding to public records requests. Public offices may use the model policy that the Attorney General is to develop and provide to all public offices as guidance. The policy generally may not (a) limit the number of public records that the public office will make available to a single person (although mailings of public records may be limited to 10 per month under certain circumstances), (b) limit the number of public records that it will make available during a fixed period of time, and (c) establish a fixed time period before it will respond to a public records request, unless that time period is less than eight hours. Compliance is subject to audit.
Distribution: First, the adopted policy must be distributed to the employee who is the records custodian or manager, which employee must acknowledge receipt of it. Second, a public office must create a "poster" that describes the policy and post it in a conspicuous place in the public office and in all locations where the public office has "branch offices." Third, if a public office has developed a manual or handbook of general policies and procedures for all employees, the policy must be included in it. Compliance is subject to audit.
Records Commissions & Retention Schedules
Records commissions (created by statute in counties (R.C. 149.38), municipalities (R.C. 149.39), townships (R.C. 149.42), school districts (R.C. 149.41), libraries (R.C. 149.411) and special taxing districts (R.C. 149.412)) are to meet annually and review applications for one-time disposal of obsolete records and schedules of records retention and disposition. The statute sets forth the basic procedures – involving the Ohio Historical Society and the Auditor of State – for approval of applications for disposal and schedules of retention and disposition. The records retention schedule must be available at a location readily available to the public.
Recent Legislation of Interest
House Bill 149, which was signed by the Governor on January 2, 2007, and is effective April 4, 2007, authorizes tax credits for the rehabilitation of historic buildings equal to 25% of qualified rehabilitation expenditures. One hundred credit certificates will be available each year through June 30, 2009. The Director of Development and the Tax Commissioner are to adopt rules to establish procedures for applying for tax credit certificates.
House Bill 694, which is effective April 2, 2007, amends the current law governing political contributions made by contractors by expanding its reach to cover members of legislative authorities and candidates for legislative authorities of counties, school districts, municipal corporations and townships, among others. Additional categories of potential contributors and of public contracts will be subject to the restrictions. Covered contracts will now include those awarded through a competitive bidding process. The amount of contributions that triggers the contract ban has become significantly more restrictive. Note that contracts must include a certification by the contracting company that all potential contributors are in compliance with the law.
House Bill 699 (Capital Appropriation Bill) was signed by the Governor on December 28, 2006; certain of the provisions are effective immediately and others are effective March 29, 2007. The Bill, among other things, provides a method for property owners to decline the property tax exemption that occurs under the State's voluntary action program (VAP) when there is a covenant not to sue relating to environmental remediation. It also amends the joint economic development district (JEDD) provisions to permit the granting of a community reinvestment area tax abatement in a JEDD with the consent of the contracting parties.
Eminent Domain. Representative Bob Gibbs has told reporters that he plans to introduce legislation shortly that will propose a constitutional amendment for the ballot in November restricting the use of eminent domain.
Recent Decisions of Interest
City council's granting of a conditional use permit for a planned-unit residential development constituted an administrative act, which is not subject to referendum. State ex rel. Marsalek v. S. Euclid City Council, 111 Ohio St.3d 163
Under the Am. Sub. S.B. No. 221 version of R.C. 2744.02(B)(3), a political subdivision may be liable for injury, death, or loss resulting from a nuisance that exists on public grounds within the political subdivision when the injury, death, or loss caused by the nuisance occurs outside the political subdivision (smoke from burning of refuse on municipal property allegedly drifted to Interstate 70 and combined with fog causing multiple-vehicle accident). Sherwin-Williams Co. v. Dayton Freight Lines, Inc. 112 Ohio St.3d 52
Home rule city ordinances prohibiting predatory loans were unconstitutional as forbidding loans allowed by state statutes where statutes expressly authorized state solely to regulate such activities "in lieu of all other regulation of such activities by a municipal corporation or other political subdivision." Am. Financial Servs. Assn. v. Cleveland, 112 Ohio St.3d 170
Owners of land under road counted as "owners" for purposes of number of people needed to sign road annexation petition. State ex rel. Butler Twp. Bd. Of Trustees v. Montgomery Cty. Bd. Of Commrs., 112 Ohio St.3d 262
Home rule city ordinance prohibiting possession of semi-automatic rifle did not conflict with state statute where there was no provision in the statute declaring or otherwise suggesting that statute was the only controlling limitation in lieu of municipal regulations prohibiting lower-capacity firearms. Cincinnati v. Baskin, 112 Ohio St.3d 279 NOTE: In December 2006 the legislature passed (overriding Governor Taft's veto) Sub. H.B. 347 which, among other things, enacted R.C. 9.68 in which the "general assembly finds the need to provide uniform laws throughout the state regulating...firearms" and which provides that "the court shall award costs and reasonable attorney fees to any person, group, or entity that prevails in a challenge to an ordinance, rule, or regulation as being in conflict with this section."
City's denial of landowners' application for curb-cut/driveway permit for access to public road, which denial made the undeveloped riverfront property inaccessible from land, constituted a taking. State ex rel. Hilltop Basic Resources, Inc. v. Cincinnati, 167 Ohio App.3d 798 (Ohio App. 1st Dist.)
An unsuccessful bidder may bring a lost-profits claim pursuant to 42 U.S.C. 1983 for the city's deprivation of its property interest in a drywall contract which the city awarded to another contractor who met the City's SBE program requirements, which the court found to be unconstitutional. Cleveland Constr., Inc. v. Cincinnati, 2006 Ohio-6452 (Ohio App. 1st Dist.)
Gas drilling lease on municipal property is subject to competitive bidding requirement of R.C. 721.03 since municipality, by adopting a resolution instead of an ordinance (as specified in the municipal charter), failed to exercise properly its home rule power to supersede that state law. Great Plains Exploration, L.L.C. v. Willoughby, 2006-Ohio-7009 (Ohio App. 11th Dist.)
A county sheriff and deputy sheriffs are prohibited from using county law enforcement vehicles to run personal errands, or otherwise using county vehicles for their personal use and benefit, and may not use a non-employee family member to help transport and process persons accused or convicted of committing a crime, or persons who are mentally ill or believed to be mentally ill. 2006 Op. Att'y General No. 2006-048
ODOT is responsible for the rehabilitation, reconstruction, maintenance, and repair of a bridge structure not located in a municipal corporation if the road under the bridge is a limited access state highway or ODOT constructed the bridge over a state highway which is not a limited access highway; however, ODOT is not responsible for the maintenance and repair of the wearing surface of a county or township road that passes over the bridge. Except as provided in R.C. 5501.49, R.C. 5517.04, and R.C. 5521.01, ODOT is not responsible for the rehabilitation, reconstruction, maintenance, or repair of a bridge structure located in a municipal corporation that carries a county or township road or a municipal street over a limited access state highway or other state highway. 2006 Op. Att'y General No. 2006-051
A municipal corporation is not empowered, in the exercise of its police powers under Ohio Const. Art. XVIII, § 3, to adopt municipal licensing requirements for adult care facilities licensed by the Ohio Department of Health pursuant to R.C. Chapter 3722, or to adopt other regulations that alter, impair, or limit the operation of facilities licensed by the Ohio Department of Health pursuant to R.C. Chapter 3722, where those municipal licensing requirements or regulations conflict with R. C. Chapter 3722 and rules adopted under that chapter. 2006 Op. Att'y General No. 2006-054
Substitute House Bill Number 9, signed by Governor Taft on December 27, 2006, includes many significant changes and additions to the laws pertaining to the disclosure and retention of public records, summarized below. These changes and additions are to take effect September 29, 2007.
Handling Public Records Requests
Redaction: A public record may contain information that is exempt from disclosure. If such information is redacted, the requester of the public record must be notified of the redaction or it must be plainly visible.
Reasons for Denial of Request: If a request is denied, in whole or in part (through redaction of certain information), the requester must be provided with an explanation of the denial – including legal authority. If the initial request was in writing, this explanation has to be in writing. Note that requiring a requester to disclose identity or motive "constitutes a denial of the request" for a public record, unless state or federal law requires or authorizes otherwise – as in the case where personally identifiable student information is requested.
Requesting Information from Requester of Public Records: A public office may ask for a public records request to be put in writing, and may ask for identity and motive, but only (a) after disclosing that such is not mandatory, and (b) when such "would benefit the requester by enhancing the ability of the public office or person responsible for public records to identify, locate, or deliver the public records sought by the requester."
Ambiguous & Overly Broad Requests: If a requester makes an ambiguous or overly broad request or otherwise has difficulty reasonably identifying the public records being requested, the public office or the person responsible for the requested public record may deny the request, but must give the requester an opportunity to revise the problematic request "by informing the requester of the manner in which records are maintained by the public office and accessed in the ordinary course of the public office's or person's duties."
Making Copies: Public offices are not required to allow requesters to make copies themselves.
Payment of Costs in Advance: Costs of providing copies (including duplication costs, postage costs, other costs of delivery or transmission, etc.) may be required to be paid by requesters in advance.
Damages, Fees and Costs
Generally: A person allegedly aggrieved by a failure to comply with the provisions of the Public Records Act in RC 149.43(B) may commence a mandamus action in court seeking compliance with the Act, court costs, reasonable attorney fees and, if applicable, "statutory damages."
Statutory Damages: Statutory damages are to be awarded in the amount of $100 for each business day (commencing with the day on which a requester files a mandamus action to recover statutory damages) that a public office or person responsible for the requested public records failed to comply with RC 149.43(B) – up to a maximum of $1000. To obtain such damages (and court costs), a requester must have transmitted "a written request by hand delivery or certified mail to inspect or receive copies of any public record in a manner that fairly describes the public record or class of public records to the public office or person responsible for the requested public records." A court may reduce or not award statutory damages if it makes certain determinations that generally pertain to the reasonableness of the conduct given the then-current state of the law and public policy considerations.
Attorney Fees: Reasonable attorney fees may be awarded (subject to reduction as described below) upon a judgment that orders the public office or person responsible for the public record to comply with RC 149.43(B). Reasonable attorney fees shall be awarded (subject to reduction) upon either (a) a failure to respond – affirmatively or negatively – to the public records request "in accordance with the time allowed under [RC 149.43(B)]," or (b) a failure to make good on a promise to permit the requester to inspect or receive copies of the public records requested within a specified period of time. Reasonable attorney fees are to include reasonable fees incurred to prove the reasonableness and amount of, and entitlement to, those attorney fees. A court may reduce or not award attorney fees if it makes certain determinations that generally pertain to the reasonableness of the conduct given the then-current state of the law and public policy considerations.
New Training Requirement
Elected officials or their appropriate designees must attend three hours of public records training approved by the Attorney General for every term of office. Compliance is subject to audit.
Training sessions provided by the Attorney General's office are to be free of charge. Other entities, including private entities, can contract with the Attorney General to provide public records training, and may charge a reasonable registration fee, which may be paid from public funds.
Public Records Policy
Creation: Public offices must adopt a public records policy for responding to public records requests. Public offices may use the model policy that the Attorney General is to develop and provide to all public offices as guidance. The policy generally may not (a) limit the number of public records that the public office will make available to a single person (although mailings of public records may be limited to 10 per month under certain circumstances), (b) limit the number of public records that it will make available during a fixed period of time, and (c) establish a fixed time period before it will respond to a public records request, unless that time period is less than eight hours. Compliance is subject to audit.
Distribution: First, the adopted policy must be distributed to the employee who is the records custodian or manager, which employee must acknowledge receipt of it. Second, a public office must create a "poster" that describes the policy and post it in a conspicuous place in the public office and in all locations where the public office has "branch offices." Third, if a public office has developed a manual or handbook of general policies and procedures for all employees, the policy must be included in it. Compliance is subject to audit.
Records Commissions & Retention Schedules
Records commissions (created by statute in counties (R.C. 149.38), municipalities (R.C. 149.39), townships (R.C. 149.42), school districts (R.C. 149.41), libraries (R.C. 149.411) and special taxing districts (R.C. 149.412)) are to meet annually and review applications for one-time disposal of obsolete records and schedules of records retention and disposition. The statute sets forth the basic procedures – involving the Ohio Historical Society and the Auditor of State – for approval of applications for disposal and schedules of retention and disposition. The records retention schedule must be available at a location readily available to the public.
Recent Legislation of Interest
House Bill 149, which was signed by the Governor on January 2, 2007, and is effective April 4, 2007, authorizes tax credits for the rehabilitation of historic buildings equal to 25% of qualified rehabilitation expenditures. One hundred credit certificates will be available each year through June 30, 2009. The Director of Development and the Tax Commissioner are to adopt rules to establish procedures for applying for tax credit certificates.
House Bill 694, which is effective April 2, 2007, amends the current law governing political contributions made by contractors by expanding its reach to cover members of legislative authorities and candidates for legislative authorities of counties, school districts, municipal corporations and townships, among others. Additional categories of potential contributors and of public contracts will be subject to the restrictions. Covered contracts will now include those awarded through a competitive bidding process. The amount of contributions that triggers the contract ban has become significantly more restrictive. Note that contracts must include a certification by the contracting company that all potential contributors are in compliance with the law.
House Bill 699 (Capital Appropriation Bill) was signed by the Governor on December 28, 2006; certain of the provisions are effective immediately and others are effective March 29, 2007. The Bill, among other things, provides a method for property owners to decline the property tax exemption that occurs under the State's voluntary action program (VAP) when there is a covenant not to sue relating to environmental remediation. It also amends the joint economic development district (JEDD) provisions to permit the granting of a community reinvestment area tax abatement in a JEDD with the consent of the contracting parties.
Eminent Domain. Representative Bob Gibbs has told reporters that he plans to introduce legislation shortly that will propose a constitutional amendment for the ballot in November restricting the use of eminent domain.
Recent Decisions of Interest
City council's granting of a conditional use permit for a planned-unit residential development constituted an administrative act, which is not subject to referendum. State ex rel. Marsalek v. S. Euclid City Council, 111 Ohio St.3d 163
Under the Am. Sub. S.B. No. 221 version of R.C. 2744.02(B)(3), a political subdivision may be liable for injury, death, or loss resulting from a nuisance that exists on public grounds within the political subdivision when the injury, death, or loss caused by the nuisance occurs outside the political subdivision (smoke from burning of refuse on municipal property allegedly drifted to Interstate 70 and combined with fog causing multiple-vehicle accident). Sherwin-Williams Co. v. Dayton Freight Lines, Inc. 112 Ohio St.3d 52
Home rule city ordinances prohibiting predatory loans were unconstitutional as forbidding loans allowed by state statutes where statutes expressly authorized state solely to regulate such activities "in lieu of all other regulation of such activities by a municipal corporation or other political subdivision." Am. Financial Servs. Assn. v. Cleveland, 112 Ohio St.3d 170
Owners of land under road counted as "owners" for purposes of number of people needed to sign road annexation petition. State ex rel. Butler Twp. Bd. Of Trustees v. Montgomery Cty. Bd. Of Commrs., 112 Ohio St.3d 262
Home rule city ordinance prohibiting possession of semi-automatic rifle did not conflict with state statute where there was no provision in the statute declaring or otherwise suggesting that statute was the only controlling limitation in lieu of municipal regulations prohibiting lower-capacity firearms. Cincinnati v. Baskin, 112 Ohio St.3d 279 NOTE: In December 2006 the legislature passed (overriding Governor Taft's veto) Sub. H.B. 347 which, among other things, enacted R.C. 9.68 in which the "general assembly finds the need to provide uniform laws throughout the state regulating...firearms" and which provides that "the court shall award costs and reasonable attorney fees to any person, group, or entity that prevails in a challenge to an ordinance, rule, or regulation as being in conflict with this section."
City's denial of landowners' application for curb-cut/driveway permit for access to public road, which denial made the undeveloped riverfront property inaccessible from land, constituted a taking. State ex rel. Hilltop Basic Resources, Inc. v. Cincinnati, 167 Ohio App.3d 798 (Ohio App. 1st Dist.)
An unsuccessful bidder may bring a lost-profits claim pursuant to 42 U.S.C. 1983 for the city's deprivation of its property interest in a drywall contract which the city awarded to another contractor who met the City's SBE program requirements, which the court found to be unconstitutional. Cleveland Constr., Inc. v. Cincinnati, 2006 Ohio-6452 (Ohio App. 1st Dist.)
Gas drilling lease on municipal property is subject to competitive bidding requirement of R.C. 721.03 since municipality, by adopting a resolution instead of an ordinance (as specified in the municipal charter), failed to exercise properly its home rule power to supersede that state law. Great Plains Exploration, L.L.C. v. Willoughby, 2006-Ohio-7009 (Ohio App. 11th Dist.)
A county sheriff and deputy sheriffs are prohibited from using county law enforcement vehicles to run personal errands, or otherwise using county vehicles for their personal use and benefit, and may not use a non-employee family member to help transport and process persons accused or convicted of committing a crime, or persons who are mentally ill or believed to be mentally ill. 2006 Op. Att'y General No. 2006-048
ODOT is responsible for the rehabilitation, reconstruction, maintenance, and repair of a bridge structure not located in a municipal corporation if the road under the bridge is a limited access state highway or ODOT constructed the bridge over a state highway which is not a limited access highway; however, ODOT is not responsible for the maintenance and repair of the wearing surface of a county or township road that passes over the bridge. Except as provided in R.C. 5501.49, R.C. 5517.04, and R.C. 5521.01, ODOT is not responsible for the rehabilitation, reconstruction, maintenance, or repair of a bridge structure located in a municipal corporation that carries a county or township road or a municipal street over a limited access state highway or other state highway. 2006 Op. Att'y General No. 2006-051
A municipal corporation is not empowered, in the exercise of its police powers under Ohio Const. Art. XVIII, § 3, to adopt municipal licensing requirements for adult care facilities licensed by the Ohio Department of Health pursuant to R.C. Chapter 3722, or to adopt other regulations that alter, impair, or limit the operation of facilities licensed by the Ohio Department of Health pursuant to R.C. Chapter 3722, where those municipal licensing requirements or regulations conflict with R. C. Chapter 3722 and rules adopted under that chapter. 2006 Op. Att'y General No. 2006-054
