FOREWORD

Public records have a long history in Ohio. The Ordinance of 1787, which Congress passed in 1787, governed Ohio before it became a state. The Ordinance required Congress to appoint a secretary for the Northwest Territory, which included Ohio. The secretary's duties included keeping and preserving "the public records" of the territory.

Long before 1963, when Ohio's General Assembly enacted the public records statute, Ohio courts recognized a common law right of the public to inspect and copy governmental records. At about the turn of the century, an Ohio court in Cincinnati recognized that unrestricted public access to governmental records was one of the elements distinguishing American government from the government of England. The court stated:

In England the fountainhead of justice is the king. . . . The courts are his courts, and the government is his government. Whatever power the people have he has granted to them; and if no grant has been made to them to examine the public records, it may well have been in England that they have no such power.

But in this country . . . the people are the fountainhead of justice. The courts are their courts, and the government is their government. Whatever power they have not granted to their officials remains with them. . . .

As public records are but the people's records, it would seem necessarily to follow that unless forbidden by a constitution or statute, the right of the people to examine their own records must remain.

Wells v. Lewis, 12 Ohio N.P. 170 (Superior Ct. of Cincinnati 1901).

The Wells case evidences a colorful history of the public right of access to records, and shows that times have not changed as much in the passing century as one might think. Two men, Mr. Wells and Mr. Schroeder, sought to inspect and make copies of the Hamilton County "fair books" for a particular ward within the county. The "fair books" listed the name and address of each owner of real estate, and the assessed value of each real estate parcel as made by the county. The Hamilton County Auditor, Mr. Lewis, maintained the "fair books" as one of the duties of his office. Lewis was in the midst of running for re-election, and Wells was a democrat running against Lewis. Wells lived in Hamilton County, and was a taxpayer. Schroeder, also a democrat, was a resident of Hamilton County, but not a taxpayer.

Wells and Schroeder alleged that public statements about a reduction in the property tax rate had created a misimpression among the citizenry that property taxes would in fact go down. Wells and Schroeder wanted to see the "fair books" to try to show that the county had increased the valuation of real estate and, thus, a reduction in the tax rate would not mean an actual reduction in taxes.

When Wells and Schroeder went to Lewis' office to inspect the "fair books," the books were absent from their customary shelves. Lewis said that one of his clerks was in the process of duplicating the books, and they would not be available to Wells or Schroeder. In the subsequent suit by Wells and Schroeder against Lewis, the court rejected Lewis' argument that the English rule of public access should apply. The English rule asserted that no one had a right to inspect the records of a public officeholder unless the person seeking inspection had an interest in seeing the records that was peculiar to that person and distinct from the community at large. Lewis argued that Wells and Schroeder could inspect records about their own properties, but not about any other properties.

In rejecting the English rule, the court stated that all citizens "have a right to as full knowledge of all the official acts of their officers as the officers themselves have, so as to enable them to ascertain whether their officers have performed their duty in such manner as is acceptable to them with a view to determine whether they will continue them in office or not." The court added:

[T]he records in the auditor's office are the public records of the people of Hamilton county, bought with their money, kept in a public place built with their money, and in the charge of public officials paid by their money and selected by them. The officials in charge of these books, therefore, can be no other than trustees in possession of property belonging to the people of Hamilton county.

If then the auditor holds these books in trust for the people of Hamilton county, it is but an elementary proposition of law that the beneficiaries of the trust may inspect such property, subject only to the limitation that such inspection does not endanger the safety of the books or interfere with the discharge by the auditor of his official duties.

Wells, Ohio N.P. at 176.

Today's public records statute codifies Ohio's common law, and incorporates the common law philosophy that "public records are the people's records, and officials in whose custody they happen to be are merely trustees for the people." E.g., State ex rel. Warren Newspapers Inc. v. Hutson, 70 Ohio St. 3d 619, 640 N.E.2d 174 (1994).

The history of open meetings in Ohio lacks the color and legal precedent of the history of open records in Ohio. Although it cited no authoritative history, the Ohio Supreme Court has opined that there was no common law right of public access to governmental meetings in Ohio. Beacon Journal Publishing Co. v. City of Akron, 3 Ohio St. 2d 191, 209 N.E.2d 399 (1965).

The Ohio Supreme Court is probably mistaken. Ohio has a long history of open meetings of public bodies. In 1795, the legislature of the Northwest Territory, which included Ohio, held its first recorded session. The Territory's only newspaper at that time, The Centinel of the Northwest Territory, announced the time and place of the meeting. The territorial legislative sessions were open to the public. C.B. Galbreath, "Legislature of The Northwestern Territory, 1795," Ohio Archaeological and Historical Society Publications 14, 18 (1921).

In 1802, Ohioians held a constitutional convention to adopt a state constitution. All citizens had a right to address that body "openly or in writing." C.B. Galbreath, "Legislature of The Northwestern Territory, 1795," Ohio Archaeological and Historical Society Publications 203 (1921).

The product of the constitutional convention was the Ohio Constitution of 1802, which provided that "[t]he doors of each house, and of committees of the whole, shall be kept open." Ohio Const. of 1802, Art. I, §  15.

The primary organ of local governmental authority in the Northwest Territory was the court of Quarter Sessions, the forerunner of the board of county commissioners. The courts of Quarter Sessions operated in a combination of legislative, executive, and judicial capacities. The proceedings of the courts of Quarter Sessions were open community affairs. R. Ireland, "Politics of County Government," Kentucky: Its History and Heritage 75 (1978).

At the municipal level, open town meetings were the norm. W. Rose, Cleveland: The Making Of A City 115-116 (1950).

Ohio's open meetings statute was first passed in 1954.