Paul E. Kostyu reports:
Ohio legislators created an arson offender registry much like the state’s sex offender registry, supposedly to deter the crime. But unlike the older one, the names of those making the arson list will not be public. That means you won’t know if your neighbor is an arsonist.
The Ohio Supreme Court ruled recently that asking for the emails sent to and from public officials is too “ambiguous.”
What’s going on?
Those are just two of many examples of how government is becoming more secretive as lawmakers and the courts turn transparent government to opaque in Ohio.
It means you can’t see what your government is doing or where it’s spending your money or what deals are being cut. In fact, some public officials even want you to pay for accessing what are now free online records – such as the deed to your house or your military discharge papers – if you print them in your own home.
Since the state first enacted its public records law (Ohio Revised Code 149.43) in 1963, the number of legal exemptions spelled out in the law has grown from the first one – medical records – to 29, but that doesn’t include hundreds of other exemptions.
Those fall under a catch-all section that says exemptions found in other state and federal laws also apply. One expert on Ohio records law expects the list to grow. But Greg R. Lawson, policy analyst for the Buckeye Institute for Public Policy Solutions, said he thought access was “probably about the same (as it always has been) or getting a little bit better.”
The latest exemption? The records of the new JobsOhio agency carved by Gov. John R. Kasich from the former Department of Development are out of reach of the public. Ohio’s top court said that’s OK, because JobsOhio is a private entity, whereas the department was a public one.
In the current two-year session of the Legislature, which ended Thursday with at least 1,006 bills being introduced, at least 44 proposals dealt in some form with accessing public information, most reducing access.
In 2009, the Better Government Association and the National Freedom of Information Coalition gave Ohio an “F” grade for its access law. Another 37 states received the same grade.
“The entire law has gotten out of control,” Dennis Hetzel, executive director of the Ohio Newspaper Association, told The Enquirer.
The newspaper association tracks legislation that impacts access issues. The Enquirer is a member of the association and Hetzel is a former editor at the newspaper.
“The statute gets more cumbersome and confusing every year,” said Mark Weaver, a former assistant attorney general and Columbus attorney who defends state agencies, local governments and school districts in public records cases.
Jack Greiner, a media attorney for Graydon, Head & Ritchey in Cincinnati, said action taken by the Legislature diminishes access to information. “It’s evisceration with a thousand cuts,” said Greiner, whose clients include The Enquirer.
Public records treated as political weapons
While not necessarily a new trend, Ohio’s two major political parties inundate their opponents in public office with records requests. Republicans did it when Democrat Ted Strickland was governor and Democrats are doing the same to Kasich.
“It’s purely partisan,” said Rob Nichols, a spokesman for Kasich. “It’s one a day. They’re wielding it as a weapon.”
Wrong, said Chris Redfern, chairman of the Ohio Democratic Party. He said the party made 28 requests in a six-month span, though that doesn’t include separate weekly requests for Kasich’s schedule.
“(Nichols) doesn’t get to pick and choose” who gets public records, Redfern said.
The two sides are bickering over whether Kasich invoked executive privilege for the governor’s summer schedule. Much of the material handed to Democrats was blacked out, party spokesman Jerid Kurtz said.
Nichols said the blacked out portion dealt with company trade secrets and security information dealing with Kasich . Letters obtained by The Enquirer sent by Mehek M. Cooke, Kasich’s assistant chief counsel, to Democratic researcher Michael Carrozzo on July 16 and Aug. 24 explain the redactions and do not invoke executive privilege.
Executive privilege hasn’t been used since the Ohio Supreme Court created it in 2006.
One reason for the party-issued public records requests, said Redfern, is that news organizations across the state have eliminated or reduced the number of reporters based at the Statehouse over the past five years.
As a result, he said, organizations interested in good government have to pick up the slack.
Journalists and political parties, however, aren’t the only groups filing records requests. They also come from policy organizations, such as the conservative-leaning Buckeye Institute and the liberal-leaning Policy Matters Ohio, as well as lobbyists, businesses and other interest groups.
Public records advocates worry the Legislature may make government more secretive by limiting the number of records one person or group could request and requiring they state the reason for their request. Current law doesn’t limit requests nor require a reason.
“It is probably true that some requests are overly broad and mainly designed to harass,” Hetzel said. “When a couple kids act up in a class, it’s easiest to punish the whole class.”
Professor Charles N. Davis, a national expert on public records at the University of Missouri, told The Enquirer he worries about “political blowback” and there’s a “real risk” of limits being placed on access because of voluminous requests.
Accessing records, even at home, could cost more
Not only is government getting more secretive, but it may cost citizens more to access the documents they already own.
One proposal this year, which died but may come back in 2013, would have allowed county recorders to charge anyone up to $2 a page or an annual subscription fee of up to $500 to print an unlimited number of copies from their own home or business via the Internet. Recorders’ offices are a treasure trove of public information, including real estate documents.
Hetzel said some government agencies see public records as profit centers, particularly at a time when funds to local governments have been cut. But, he said, one purpose of government, and already paid for by constituents, is to maintain public records.
Davis said such a law would be unique in the country and “sheer profiteering. There’s no other way to describe it.”
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