It's the Public's Business
Open, transparent government is a foundation of democracy.
But the foundation is slowly being chipped away in Ohio. Little by little, nick by nick, state leaders are chipping away Ohio's Open Records Law, the law that allows the public to know what their government is up to.
Taken individually, these exemptions to our right to know might seem insignificant. Taken together, they represent a piecemeal attack on open government that deserves attention from anyone concerned about the quality and fairness of government.
Over the years, Ohio's Open Records Law was weighed down with so many exemptions that, in keeping track of them, they've lapped the alphabet and are now on (cc). That's 29 exemptions. As The Enquirer's Paul Kostyu reported, the just-ended legislative session saw at least 44 bills related to open records, most of them restricting access.
More are expected in the upcoming session. Some legislators and public officials are saying they see a trend of political opponents using public records requests as tools of harassment. With that as their cover, they're contemplating further restrictions on the public's access to records, ostensibly to ward off "harassment" of public officials.
It may be true that, in some cases, repeated requests for public records may be used as a form of political harassment. But that doesn't warrant restricting access to the general public. That kind of a "fix" would be worse than the "problem" they're trying to cure.
It's also questionable how much of a problem this really is. "This seems to be one of those 'accepted' truths that has taken on a life of its own," says Enquirer attorney and open records expert Jack Greiner. "This 'harassment' stuff is a solution in search of a problem."
It's also part of the territory of an elected or appointed public official. They are doing the public's business now and the public has the right to know how that business is being conducted. "That's part of the job you signed up for," says Monica Dias, a public records expert with Cincinnati's Frost Brown Todd law firm. "There is no 'harassment' in public-records land."
Both these experts point out that remedies already exist to deal with serial public records requesters that truly intend to harass. Ohio already has a "vexatious litigator" law on the books to deal with the rare instances of people who abuse their access to the courts by filing harassment lawsuits. "If someone is a repeat offender, use this tool to address that problem," Greiner says.
Kentucky law allows an agency to refuse to disclose records if the request "places an unreasonable burden" on the agency. That burden, however, must be proven "by clear and convincing evidence."
Maintaining and producing public records is simply one of the jobs of our public agencies. These records belong to the public, not to the agency that maintains them on behalf of the public. That concept was first articulated more than 100 years ago by a Cincinnati judge.
"Public records are the people's records," wrote Judge Rufus B. Smith. "The officials in whose custody they happen to be are mere trustees for the people."
With that in mind, we'll be watching our state legislatures this year for any attempts to further restrict access to the people's records. We'll let you know when those bills come up and how your representatives voted on them. And we encourage you to let them know how you feel about restricting access to public information by contacting them. In Ohio, you may contact your representative by going to www.legislature.state.oh.us. In Kentucky, you can go to www.lrc.ky.gov/legislators.htm.