Once a year people in the news business dedicate “Sunshine Week” to talking about an issue that is important not just to reporters, but to everyone: open government.
Some years there are victories to celebrate, and some years there are defeats.
This year, Sunshine Week is March 16-22, and this year there is little to celebrate in Ohio.
Since we last marked Sunshine Week, the Ohio General Assembly inserted a provision in the state budget that gave government officials the ability to discuss a broad range of “economic development” issues behind closed doors. We argued last summer that anytime government officials are going to be given additional leave to conduct the public’s business behind closed doors, it should be done through stand-alone legislation that is subject to hearings and floor debate. It shouldn’t be through amendments tacked on to another bill, especially not the budget bill. We lost that argument.
Then just last month open government suffered another setback, this time in the Ohio Supreme Court, which denied the recovery of attorney fees to a South Euclid woman in a case in which the city turned over records she had sought only after she asked a court to compel the city to comply.
South Euclid had ignored Emilie DeFranco’s request for two months, but partially complied when she filed suit. Officials said her request had been misplaced.
Whatever the reason for the city’s failure to comply, DeFranco had to expend her time and energy and had to assume the expense of forcing South Euclid to comply. It has long been accepted that citizens who are forced to go to court in Ohio are entitled to lawyers fees — with some exceptions.
But the Ohio Supreme Court — in a 6-1 ruling — went out of its way to read a 2007 law that was intended to make it easier for members of the public to get access to public records in a way that will encourage recalcitrant officials to stonewall.
The court ruled in the DiFranco case that because the city turned over the requested records after she filed suit but before the court issued its judgment, DiFranco was not entitled to attorney’s fees.
This is a double whammy to public records. Officials now know they can ignore public records requests if they want to because all they’ll have to do to avoid paying the legal fees of citizens or the press is to comply as soon as a suit is filed. Even more damaging, it will make it more difficult for citizens to find lawyers willing to take their public records cases and it means media companies will have to think doubly hard about the expense involved in pursuing a public records case. The cost of fighting such cases can be a few thousand dollars or tens of thousands.
It is disheartening that only one justice, Sharon Kennedy, recognized that this ruling not only does damage to the public’s right to know, but that it is also at odds with the spirit of open government laws.
The bedrock principle of open government has been for decades that when in doubt public officials should err on the side of openness. The state’s open meetings law opens with the phrase that the law “shall be liberally construed to require public officials” to function openly. That phrase isn’t legally binding on the state’s open records law, but the Legislature’s intent regarding openness is clear.
And yet, in this case the Supreme Court was confronted with two possible readings of the open records statute and six of the seven justices chose to read the law in a way the encourages closed government. The crux of the two readings hinged on how far the word “if” stretched in a three paragraph, 140-word passage.
The court’s opinion states: “Although it might be contended that the “if” clause applies only to the first sentence, we think the correct reading requires us to apply the initial condition to both sentences...” And later, discussing the status of a lower court ruling, the justices write: “To be sure, it could be argued that the court’s July 3, 2012 order might satisfy the condition, inasmuch as it ordered production of any responsive documents that had not yet been produced. But the July 3 order probably cannot qualify as a ‘judgment,’ since that order was interlocutory and does not dispose of the case.”
So, twice the court was faced with either/or questions that could have led it to a conclusion more consistent with assuring open government, and in both instances it chose to construe the facts toward closed government.
It is annoying when public officials lose sight of the fact that while public records are in their possession, the records belong to the people. It’s unfair when citizens must go to court to enforce sunshine laws. It is alarming when the state’s highest court makes it more difficult for people to pry public records from the hands of officials who treat those records as their own.