Ohio’s once solid public records and open meetings laws are being chipped away by unfortunate decisions rendered by courts up to and including the Ohio Supreme Court, but the only ones who seem to be noticing are journalists.
And that’s too bad, because while weakened public access laws make it more difficult for reporters to do their work, the real losers are members of the public. It is they who will find themselves denied access to meetings where decisions involving their communities and their tax dollars are made. It is they who will find no paper trail when they want to understand how special interests came to trump the public interest.
To be fair, the Ohio Supreme Court has, over the years, rendered some decisions that reinforced open government, and others that did not. In short, it’s a mixed bag. But, quite simply, the original intent of Ohio’s open meetings and public records laws was clearly weighted toward openness. Public records, except for those specifically exempted, are to be “promptly prepared and made available to any member of the general public at all reasonable times for inspection.” And the state’s landmark open meetings law of 1975 specifically says, that the law “is to be liberally construed to require public officials subject to the Act to take official action and to conduct all deliberations upon official business only in open meetings unless the subject matter is specifically exempted by law.”
Exceptions on two fronts
And yet, over the last 38 years, the Legislature has shown an alarming tendency to carve out exceptions to the original intent. And even more unnerving, the courts, when asked to balance the public or press’s right to access against the action by a government body to close its doors, have too often ignored the legal baseline that the law would be “liberally construed” toward openness.
This erosion was discussed last week during a session on public records at the annual convention of the Ohio Newspaper Association in Columbus.
Fritz Byers, a First Amendment lawyer and counsel for the Toledo Blade, noted that the The Blade won a lawsuit against the University of Toledo Foundation in 1992 in which the court ruled 6-1 that the university had to release records on the private nonprofit, which received public money and performed a public function.
But as The Blade’s Jim Provance reported from the ONA conference, the court, by a vote of 4-3, weakened that stance in 2005. It found, finding that the nonprofit Oriana House, which operated Summit County’s community corrections program, was not subject to the public records law despite its receipt of government money to perform some functions of government.
The law hadn’t changed; the court’s interpretation had.
A year later, the court went even further, carving out an exemption to the public records act for Gov. Bob Taft that gave governors an executive privilege that is found nowhere in Ohio law. The court adopted a presidential executive privilege dating to the Watergate era and applied it to Ohio’s governor.
Why these things matter
In an era of privatization and quasi-privatization, this veil of secrecy should concern taxpayers. Consider JobsOhio, the nonprofit proposed by Gov. John Kasich and codified by the General Assembly to replace a public department of development, or the private companies that receive hundreds of millions of state dollars to operate charter schools.
The string between tax money and the public should not be severed simply because the money is funneled to a “private” entity. Members of the public still have an interest in how decisions are made about the spending of their money.