United States Project

Why open-government advocates are feeling good about the news from Ohio

May 6, 2016
Source: Fotolia

Here comes the sun,

Here comes the sun, and I say,

It’s all right.

George Harrison could have written those words about Ohio in recent weeks, as a pair of legal developments have called attention to freedom-of-information issues in the Buckeye State and promise to make state and local government more open.

As one of my friends in the legal world there put it, “Not sure who flipped the switch, but it feels like Sunshine Week … right now.”

First, Ohio Senate President Keith Faber, a Republican, introduced a bill last week empowering citizens to challenge public-record denials without the need for a lawyer by paying $25 for the Ohio Court of Claims to resolve the dispute. One of its judges would do so after a special master mediated the dispute and issued a recommendation. Faber told The Columbus Dispatch that he expects the entire process, from start to finish, would take no more than 45 days. (Alternatively, citizens could still file a traditional lawsuit.)

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The program would likely replace others operated by the Ohio Auditor and the Ohio Attorney General. I discussed them a year ago when the auditor, Dave Yost, a Republican and a former reporter for the long-defunct Columbus Citizen-Journal, announced that his office would start taking complaints about public-records violations by state agencies. The Republican-controlled legislature tried unsuccessfully to kill the program, arguing that it wasn’t the auditor’s role to monitor public-records law. Eventually, the legislature blinked and Yost went ahead with his program, called Sunshine Audits.

Meanwhile, the attorney general’s program offers a free mediation service as an alternative to litigation. Its shortcoming, though, is that it accepts only complaints involving local government agencies, because the attorney general’s office acts as legal counsel to state agencies.

Yost and the attorney general, Mike DeWine, support Faber’s bill—and so does Ohio Chief Justice Maureen O’Connor. The Dispatch, among others, published an editorial applauding the bill and saying that it would make “it quick, cheap and easy for Ohioans to get a court order to produce denied records.” Dennis Hetzel, executive director of the Ohio Newspaper Association, called the bill “a terrific piece of legislation that is going to open up access and information for all Ohio citizens.”

For now, the measure has been referred to the Senate Committee on Government Oversight and Reform, where hearings are underway. (Disclosure: I’ve had no involvement so far, but I learned this week that I may be asked to testify, in which case I’ll do so in support of the bill.) Faber said he hopes to move it before the senate leaves for summer break in June.

Court rules that email thread can violate open meetings law

The other ray of sunshine came by way of the Ohio Supreme Court, which ruled Tuesday that the state open meetings law forbids private prearranged discussion by the majority of a public body’s members regardless of the discussion’s format—face to face, telephone, video, email, text, tweet, or “or other form of communication.”

By a 5-2 vote, the court ruled that a former school board member, Adam White, could sue his old board for violating the state open meetings law. White sued the Olentangy Local School District Board of Education after its president initiated an email exchange with other members about the board’s public response to a Dispatch editorial. The editorial commended White for voting against a policy requiring all communications among members and staff to go through the district superintendent or treasurer.

The board president asked the other members, except White, to work with the superintendent and his staff to prepare a response to the editorial. They did so in an email exchange, again excluding White, who sued the board six months later, alleging that it violated the Ohio open meetings law—on the theory that the law prohibited the board from engaging in a private prearranged discussion via email regarding public business.

The court held that “all meetings of any public body are declared to be public meetings open to the public at all times,” and that “the distinction between serial in-person communications and serial electronic communications via e-mail … is a distinction without a difference because discussion of public bodies are to be conducted in a public forum.” The court also said it would “subvert[] the purpose of the act” to permit government agencies privately to discuss public business by email.

The Ohio Coalition for Open Government, Common Cause Ohio, and the League of Women Voters of Ohio filed a joint amicus brief supporting White’s appeal to the state supreme court. Authored by David Marburger, the Cleveland lawyer once depicted in a New York Times dramatization, the brief argued that “the Sunshine Law’s democracy-sustaining purpose cannot survive if a quorum of a public body can retreat to their email inboxes” to evade scrutiny and accountability.

The court agreed, and here comes the sun, indeed.

Jonathan Peters is CJR’s press freedom correspondent. He is a media law professor at the University of Georgia, with posts in the Grady College of Journalism and Mass Communication and the School of Law. Peters has blogged on free expression for the Harvard Law & Policy Review, and he has written for Esquire, The Atlantic, Sports Illustrated, Slate, The Nation, Wired, and PBS. Follow him on Twitter @jonathanwpeters.