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High court case answers some questions

I sometimes hear from readers wanting our newspaper to get involved in their attempts to obtain public records, especially when they believe a public agency is unresponsive to their request.

Indeed, journalists generally have more experience at seeking public records. However, I’m not an attorney who can dole out legal advice, and frankly, we don’t usually get involved in individual readers’ attempts unless it’s something we dub newsworthy. In those cases, we might simply do our own record request for documents that we think are pertinent to a possible story.

I recently participated in an Ohio News Media Association webinar to discuss civil cases that might impact future record requests, and I’ll share some of what I learned.

Many people ask me, “How long should it take a public body to fulfill a records request?”

That’s difficult because courts haven’t set specific time limits, saying simply that records requests should be filled with reasonable timeliness.

A December 2018 Ohio Supreme Court ruling in Kesterson v Kent State University may help set some guidelines. The case involved a former KSU softball player who claimed she was sexually assaulted by her coach’s relative and then alleged the coach attempted to quiet her about the allegation. It must be noted that no police report was ever filed, nor were any criminal charges. The coach eventually resigned. Kesterson subsequently made a voluminous record request seeking things like university insurance policy information that would cover claims of federal Title IX violations or equal protections under the Fourteenth Amendment; all records of communications among specific university and athletic department personnel regarding Kesterson during certain time periods; and much, much more.

The university received the request April 15, 2016, and provided some, but not all, records in June. In August, Kesterson filed suit for the records. More records were provided by the university for the next several months, all the way up until December, including a “slew of additional records, including a variety of emails regarding Kesterson and records of her rape report …” on Dec. 1.

According to the high court’s ruling in the case, “Even when a claim for the production of records has been satisfied, a separate claim based on the untimeliness of the response persists unless copies of all required records were made available ‘within a reasonable period of time.'”

The court ruled in favor of Kesterson that the records were not prepared and provided “within a reasonable time,” noting that KSU did not fully respond to Kesterson’s request until Dec. 2, 2016, four months after Kesterson filed her Aug. 2, 2016, mandamus complaint. It awarded Kesterson some statutory damages.

While the ruling doesn’t set a specific limit on when any public agency must respond, I think the case goes a long way to reminding public officials they cannot ignore or unreasonably delay response.

Another interesting takeaway from the case includes the court’s decision against the university’s claim that many of Kesterson’s requests were “overbroad.” Yet, throughout mediation of the lawsuit, the university continued to provide records that it initially contended was part of an overbroad request. The court responded that while Kesterson did cast a wide net for communications, she limited each case temporally. The ruling also notes that requests for emails sent or received by a specific individual regarding a specific topic during a reasonably short time period does not necessarily constitute impermissible research. The opinion calls KSU’s argument “self-contradictory” and “unreasonable.”

Overall, the Kesterson case establishes some interesting case law that likely will come to play in future attempts by the public and media to obtain records.

Sadly, sometimes we must remind public employees of a 1934 Ohio Supreme Court ruling that determined “public records are the people’s records, and that the officials in whose custody they happen to be are merely trustees for the people.”

Linert is editor of the Tribune Chronicle and The Vindicator.

blinert@tribtoday.com