ohio

Ohio

When Columbus Dispatch Projects Editor Doug Haddix requested every crash record in the past several years from the Ohio Department of Public Safety, the department provided the data in no time. But when he requested basic information from the state’s transportation department, the department took months to disclose the records.

"We’ve had very mixed experiences here," he said, "It really depends on the government office or agency." While Haddix calls their success obtaining records from state agencies "fortunate," retrieving records on the local level proves to be more difficult. He said many local agencies are not as familiar with the state public records law and often have outdated computer systems.

Fees, however, have not been a problem. "We presume this is public information so the public’s already paid for it. It’s been our approach and its been pretty successful."

The law. State laws define a record as "any document, device, or item, regardless of physical form or characteristic." Ohio Rev. Code. § 149.011(G) (1998). The open records statute applies to "any record that is kept by any public office," unless exempted by law. It requires that "governmental units shall maintain public records in such a manner that they can be made available for inspection to any person at all reasonable times during regular business hours." § 149.43. Another statute authorizes public offices to use electronic records, including magnetic tapes. That statute says the office "shall keep and make readily available to the public the machines and equipment necessary to reproduce the records and information in a readable form." § 9.01.

Cases & opinions. If an electronic record contains any information not contained in paper documents, the public must be given access to the information in the electronic record. The agency is required to have equipment by which the public can access that record. Printouts must be provided at no greater cost than obtaining photocopies of similar paper documents. If the agency uses a contractor to provide computer services, the agency must obtain requested information from the contractor for the requester. However, when a commercial requester wanted both a computer tape and the software to use it, the agency had discretion to provide the tape but was not required to do so. Ohio ex rel. Recodat v. Buchanan, 546 N.E.2d 203 (Ohio 1989).

In a review of Recodat, the Supreme Court ruled that an agency must allow copying of portions of computer tapes if the requester has presented a legitimate reason why a paper copy of the records would be insufficient or impracticable. The requester must assume the expense of copying the computer tape. An agency is not required to create records or store records in a particular medium to provide greater public access. The court limited Recodat’s discussion of obtaining software by third-party contractors to the facts of that case. State ex rel. Margolius v. City of Cleveland, 584 N.E.2d 665 (Ohio 1992).

The requester can choose a format for receiving records so long as the computer is already programmed to produce the information in that format, but there is no duty to compile information in a way not already permitted by the existing computer program. State, ex rel. Scanlon v. Deters, 45 Ohio St. 3d 376, 379, 544 N.E.2d 680 (1989).

The requester can choose the medium upon which public records will be copied. Thus, where public records are stored electronically, the requester has the right to choose a paper printout or a computer disk or computer tape. Ohio Rev. Code § 149.43(B)(2).

The state’s high court also said that time, expense and possible interference with other duties were not sufficient to excuse failure to provide for public inspection and copies of information in computer files. A records custodian must maintain files so confidential material may be excised and the remainder of the file can be provided to the public "within a reasonable time. . . . This is the public’s business, not the [custodian’s] private record." Ohio ex rel. Beacon Journal Publishing v. Andrews, 358 N.E.2d 565 (Ohio 1976).

Personal e-mail that contained racial slurs was not a public record because it did not serve to document the business functions of a sheriff’s department. However, to the extent that an agency e-mail will "document the organization, functions, policies, decisions, procedures, operations or other activities of the office," it is likely to be a public record. State ex rel. Wilson-Simmons v. Lake County Sheriff’s Dept., No. 97-797 (Ohio, May 20, 1998).

The Department of Highway Safety may use the optical disk process to store records. Original documents may be destroyed after recording by the optical disk process. Op. Att’y Gen 89-042 (June 8, 1989). The Toledo Municipal Court has a legal duty to make available vehicle identification information, which may be accessed from an office computer and may be printed out. A clerk at the court cannot be prosecuted for theft in office for making the information available upon request. State v. Sanchez, 606 N.E.2d 1058 (Ohio Ct. App. 1992).

A nonprofit organization of property owners had a right to obtain certain rental property records stored on computer diskettes. Supplying the information on paper was insufficient when the requester specifically asked for the information on disk. "The basic tenet of Margolius is that a person does not come — like a serf — hat in hand, seeking permission of the lord to have access to public records." State ex rel. Athens County Property Owners Assn, Inc. v. Athens, 619 N.E.2d 437 (Ohio Ct. App. 1992).

Computer tapes containing a city’s year-end employee master payroll files are public records. The tapes contained information on 2,500 employees including name, address, telephone number, birth date, education, position, employment status, rate of pay, service rating, overtime, and year-to-date earnings. The city improperly redacted employee Social Security numbers, which the court said are public records. State ex rel. Beacon Journal Publishing Co. v. City of Akron, 21 Media L. Rep. 2052 (Ohio Ct. App. 1993).

The 1993-1994 Monthly Record Ohio Admin. Code 4501:2-10-06(B) at 1467 restricts all information contained in or processed through the Law Enforcement Automated Data System (LEADS) to the use of law enforcement agencies and criminal justice agencies for the administration of criminal justice. Records of information contained in or processed through LEADS, including data entered directly into a LEADS data base, computer tape logs created by LEADS of transactions on LEADS, and hard copies of data on a LEADS data base or from other data bases accessed through LEADS, are not public records subject to disclosure pursuant to R.C. 149.43(B). Op. Att’y Gen 94-046 (Aug. 5, 1994.)

A county recorder who makes indexed public records available for inspection during regular business hours may grant the public additional access to such records through the Internet, provided that making the public records available in that manner neither endangers the records nor interferes with the discharge of the recorder’s duties. A county recorder may not charge and collect a fee for providing Internet access to indexed public records. A county recorder may not charge and collect the fee prescribed by R.C.317.32(I) for photocopying a document when a person accesses an indexed public record by way of the Internet and prints a copy of the record on a computer printer that the recorder neither operates nor maintains. A county recorder may not limit Internet access to indexed public records to real estate title companies. Op. Att’y Gen 2000-046 (Dec. 29, 2000)

Data, photographs, maps and other information created, collected, prepared, maintained and published pursuant to R.C. 1504.02(A)(6) by the Department of Natural Resources’ Division of Real Estate and Land Management are public records for purposes of R.C. 149.43. 2. If the Department of Natural Resources stores, produces, organizes or compiles public records in such a manner that enhances the value of data or information included therein, it may charge for copies an amount that includes the additional costs of copying the information in such enhanced or "value-added" format. Op. Att’y Gen 2001-012 (March 28, 2001)

In the absence of facts indicating that the names and addresses of a county sewer district’s customers fall within one of the exceptions to the definition of "[p]ublic record" contained in Ohio Rev. Code. § 149.43(A)(1), such names and addresses are public records that are subject to disclosure by the sewer district in accordance with § 149.43. Op. Att’y Gen 2002-030 (Nov.12, 2002).

Fees. The public records statute requires that copies be made "available at cost." Ohio Rev. Code § 149.43(B) (1998). The Bureau of Motor Vehicles may adopt rules allowing for additional charges for "bulk commercial special extraction requests" for commercial purposes. Such fees are to be limited to actual costs to the bureau and special extraction costs, plus an additional 10 percent. "Actual cost" means the cost of depleted supplies, records storage media costs, actual mailing and alternative delivery costs and any direct equipment operating and maintenance costs, including actual costs paid to contractors for copying services. The bureau may also charge fees for redacting information. Reporting or newsgathering is not considered a commercial purpose. § 149.43 (E)(1),(2).

For purposes of determining the fee that may be charged under § 149.43(B) for a customized document created by coordinating and compiling information from public records, "at cost" means actual costs, exclusive of any charges for employee labor or computer programming time involved in either the preparation or actual production of the document. Op. Att’y Gen 99-012 (Feb. 2, 1999).

The cost charged cannot exceed the amount charged for copying paper records. State, ex rel. Recodat v. Buchanan, 46 Ohio St. 3d 163, 546 N.E.2d 203 (1989). But, where copying computer tapes creates an "increased financial burden" on the public office, that increased financial burden can be passed on to the requester. State, ex rel. Margolius v. City of Cleveland, 62 Ohio St. 3d 456, 584 N.E.2d 665 (1992). Public offices may arrange with outside contractors to copy computer tapes, and pass the cost of that service directly to the requester. State, ex rel. Margolius v.City of Cleveland, 62 Ohio St. 3d 456, 584 N.E.2d 665 (1992).

E-mail. Neither the public records statute nor Ohio Rev. Code 9.01 address e-mail. The test of whether the public may inspect or copy e-mail is identical to the test applied to any paper document: (1) is it a record under Ohio Rev. Code § 149.011(A) and (2) is it a public record ("kept by a public office") under Ohio Rev. Code § 149.43(A). However, internal e-mail by county employees using county equipment during county time supposedly communicating racial epithets were not "records" because they did not document the activities of the county. State, ex rel. Wilson-Simmons v. Lake County Sheriff’s Department, 82 Ohio St. 3d 37, 693 N.E.2d 789 (1998) (rejecting the assertion that e-mail can never be public records.)

Software. Proprietary software needed to access electronically stored public records is not a public record, at least where the information at issue is available on paper. State, ex rel. Margolius v. City of Cleveland, 62 Ohio St. 3d 456, 584 N.E.2d 665 (1992); State, ex rel. Recodat Co. v. Buchanan, 46 Ohio St. 3d 163, 546 N.E.2d 203 (1989).

Resources. Ohio Attorney General Opinions; Ohio Newspaper Association