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Agenda

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  1. Agenda • Mission Statement • Transformation of PRA by HB 9 • Public Records Act Overview • How to Comply with PublicRecords Requests • Law Enforcement Exemptions • Records Retention • Open Meetings Act • Q&A

  2. Mission Statement Consistent with the premise that government at all levels exists firstand foremost to serve the interests of the people, it is our mission and intent to at all times fully comply with and abide by both the spirit and the letter of Ohio’s Public Records and Open Meetings Acts.

  3. Statement of Principles The Public Office: • Will ensure that all personnel become and remain fully trained in and aware of the provisions of the acts  • Will adopt policies that encourage employees to immediately report incidents of non-compliance with the acts that they may observe • Will do nothing that abridges the public’s right to obtain information about their government or that inhibits or discourages citizens from doing so

  4. Statement of Principles The Public Office: • Will do everything possible to aid those who are seeking information, including but not limited to, fully explaining the scope and operation of the Acts and assisting Citizensin the formulation of Requests  • Will construe the provisions of the Acts in a manner that favors compliance with requests for information  • Will seek guidance from the Office of the Ohio Attorney General whenever a question arises about the application of the Acts or about the appropriateness of a request for information • Will clearly and concisely state the reason or reasons why a request for information has been denied

  5. Mandatory Training and Agency Policies - H.B.9 Education Compliance Audits New RecordsRetention Commissions

  6. Education • Requires AG to develop, provide, and certify training programs and seminars about Public Records Law • Requires all elected officials or their designees to attend a three hour Public Records training program approved by the AG once per elected term • Requires the AG to develop and provide to all public offices a model public records policy • Requires all public offices to prepare and prominently display a poster describing their public records policy

  7. Purpose of Model Policy • Starting point • Agency drafts individual policy • Based on public office’s types of records, costs of copying, normal business hours, unique exceptions, etc.

  8. Compliance • Requires the State Auditor to audit public offices for: • Compliance with the training of elected officials, and • Records policy provisions for allpublic offices

  9. Records Retention • Modifies statutes governingvarious records commissions and creates additional recordscommissions For more information, please contact: Pari Swift, Assistant State Archivist Ohio Historical SocietyLocal Government Records Program (614) 297-2553 localrecs@ohiohistory.org

  10. Public Records Act Overview Definitions Obligations Exemptions Liabilities

  11. Definitions • Any local or stategovernmental entity or • Any private entity thatis the functional equivalentof a governmental entity Public Office

  12. Definitions • A record kept by a public office that: • Has information stored on a fixedmedium (tapes, e-mails, photos, films, videos, papers, etc.), and • Is created or received by, or coming underthe jurisdiction of, a public office, and • Documents what the public office does; the organization, functions, policies, decisions, procedures, operations,or other activities of the office Public Records

  13. Obligations • Provide prompt inspection of public records • Upon request, provide copies withina reasonable period of time • To any person

  14. How toComply With Public RecordsRequests

  15. Agency Response

  16. Negotiation

  17. Documentation

  18. Rules of Special Note • Any “person” can make a public records request including corporations and other governmental agencies • No special formator special language required • A request may be written or verbal • The requester’s motive is not relevant. However, the request must at least be specific and describe in detail the records being sought. • A public office cannot require the requester to put it inwriting or reveal his/her name

  19. Redaction Obscuring or deleting any information that is exempt from the duty to permit public inspection or copying from an item that otherwise meets the definition of a record. Must be plainly visible, or advise requester

  20. Issues of Note NOTES/DRAFTS HOME ADDRESS E-MAILS STUDENT RECORDS CLEIRS

  21. Liabilities for Violating the Public Records Act 1. No Criminal Liability 2. Attorney General CANNOT investigate or enforce 3. Mandamus Action by requesterA legal action filed in common pleas, appellate court, or the Ohio Supreme Court to enforce the public records act 4. Civil Penalty 5.Attorney’s fees and court costs

  22. Electronic Records • Handle electronic records just like any other tangible record • Analyze based on content, rather than storage medium • Select additional rules will apply

  23. Additional Rules for Electronic Records Exists so long as a computer is already programmed to produce the record. State ex rel Scanon v. Deters, 45 Ohio St.3d 376 (1989). Must satisfy the definition of a “public record” under R.C. 149.43(A) Copies must be made available on paper, the medium on which it is kept or any other medium readily available as an integral part of the operations of the public office. See R.C. 149.43(B)(2). Cannot charge for the public to inspect over the Internet. OAG 00-46 May be a compilation of otherwise public records, may itself be a public record. See State ex rel. Kerner v. STRS (1998), 82 Ohio St. 3d 273; State ex rel. Cincinnati Post v. Schweikert (1988), 38 Ohio St. 3d 170. May only charge for a copy is the actual cost of making the copy. This does not include employee labor. Transmit via ordinary U.S. Mail or any other means of delivery or transmission. Items that satisfy the definition of Infrastructure Records under R.C. 149.433 The following Electronic Records are specifically exempt from the Public Records Act: Items expressly exempted within the Electronic Signatures Act, RC. 1306.23433

  24. Practical Problems Request for Electronic Records 1. Identifying the Electronic Public Record 2. Overly broad request for Electronic Public Records 3. Requests for Electronic Public Records in media other than paper or manner kept Steps for Identifying the Record and Handling Overly Broad Requests 1. Determine whether the Electronic Record “exists” for the purposes of the PRA 2. Determine the “layout” of the Electronic Record 3. Determine whether the Definition of a “Public Record” is satisfied

  25. Note • No obligation to provide complete duplication of the voluminous files of a public office • No obligation to provide InternetAccess to Electronic Public Records • No obligation to create newElectronic Records or storerecords on particular media

  26. Suggested Method for Responding to an Oral or Written PRR Receipt of Public Records Request Records NOT AVAILABLE b/c off-site, voluminous, legal review/ redaction necessary then… Write receipt letter confirming substance of request and … Records ARE immediately AVAILABLE on-site then… Public office promptly conducts a review of circumstances and facts to determine if … Explain situationto requester and… Inform that records will be available w/in reasonable orprompt period and … Locate & Gather records and… Public Office personnel will make records available w/in a reasonable or prompt period of time and during the normal course of business for… Completion of public records requests. May charge appropriate copying and postage fees, if applicable. Perform legal review and… Redact and Copy and make available pertinent records for…

  27. Records Retention Obligations Liabilities Schedules

  28. Obligations of Public Offices for Records Retention • Shall make only such records as are necessary to document the organization, functions, and essential transactions of the agency, and to protect the legal and financial rights of the state and persons directly affected. R.C. 149.40 • May not destroy, mutilate, or otherwise dispose of records except as provided by law or under the rules of the records commissions. R.C. 149.351 • Shall organize and maintain public records in a manner that they can be made available for inspection or copying, and • Shall have available a copy of its current records retention schedule at a location readily available to the public. R.C. 149.43(B)(2)

  29. Liabilities for Violation of Records Retention Laws Any person may file either or both of the following, in common pleas court: • A civil action for injunctive relief to compel compliance with this section, and an award of reasonable attorney’s fees, and/or • A civil action to recover a forfeiture of one thousand dollars for each violation, and an award of reasonable attorney’s fees R.C. 149.351

  30. Records Retention Schedule Contents • Record Series Title • Series Description - include information that: • Describes the purpose and function of the record series • Tells what types of information can be found in the records • Describes how the records are arranged • Set retention period, format(s) to be retained, and disposal method(s) Create the schedule for someonewho has no knowledge of the records

  31. Factors Determining Retention Periods • Administrative Purposes • Records used by the office to carry out its duties • Fiscal Tracking • Pertaining to the receipt, transfer, payment, adjustment, or encumbrances of funds. Documents subject to audit. • Legal Value • Documents relating to rights or obligations of citizens, or of theagency that created it • Historical Value • Documents an agency’s organization, policies, decisions, procedures, operations, and other activities • Contains significant information about people, places, or events • Secondary value: source of information for persons other than the creator

  32. Sample Records Retention Schedule

  33. Retention Schedule Approval Process • Local Records Commission (State Agencies – DAS) • Ohio Historical Society • Review and forward within 60 days to • Auditor of State • Review and approve or disapprove within 60 days The same agencies review Applications for One-time Disposal of Obsolete Records

  34. Records Retention Information For more information, please contact: Pari Swift, Assistant State Archivist Ohio Historical SocietyLocal Government Records Program (614) 297-2553 localrecs@ohiohistory.org

  35. Examination of Exemptions Unless the public office can identify an exemption which clearly requires or permits withholding a requested record, it must disclose the record.

  36. Mandatory/Catch-all Exemption • Any state or federal law which prohibits the release of specified records – RC 149.43(A)(1)(v) • Records are prohibited from disclosureunder these laws, even if the public officewould like to disclose it • If any state statutes, rules, federal statutesor regulations prohibiti public disclosure,then a public office MUST NOT releasethat record in response to a Public RecordsRequest

  37. Student Records Family Education Rights and Privacy Act of 1974 (FERPA) School officials may not disclose personally identifiable information about students without the written consent of the students or their parents, unless permitted to do so by the Act.

  38. Discretionary Exemption • A record may be “confidential” in the sense that it is exempt from disclosure under the express language of the Public Records Act • This means that a public office does not have to disclose the public record in response to a request, but may if it sochooses • If any state statutes, rules, federal statutesor regulations designate certain recordsas not a “public record” under R.C. 149.43then they ARE NOT subject to theprovisions of the Public Records Act

  39. A Waiver A voluntary disclosure of a record that could be appropriately withheld under one of the exemptions, particularly if the disclosure was to a person whose interest is antagonistic to those of the public office. The disclosure MUST have been voluntary and to a member of the public.

  40. Mandatory Exemptions DiscretionaryExemptions • Physician-patient privileged records • Student education records • Criminal history records obtained through LEADS • Criminal records sealed pursuant to statutorily authorized court order • DNA records obtained from inmates • Concealed carry permit records • Trial Preparation Records • “Security” and “Infrastructure” records • Confidential Law Enforcement Investigatory Records (CLEIRs) • Information pertaining to the recreational activities of children younger than 18 • Non-medical records identifying recipients of Golden Buckeye cards Exemptions (Examples) * Refer to Yellow Book for additional exemptions

  41. Exemptions Summary • If a record falls squarely in the “catch all” exemption,WITHHOLD • If the record falls squarely under one of the other express exemptions,use CAUTION and withhold or disclose at your discretion • If a record is clearly publicwith no applicable exemptions, DISCLOSE

  42. Spotlight on: Law Enforcement Exemptions

  43. Confidential Law Enforcement Investigatory Records (CLEIRs) Two Step Analysis When ExemptingRecords from Release Step 1 Must pertain to alaw enforcement matter consisting of: • Specific suspicion of misconduct • Conduct violates law- i.e., criminal, civil or administrative (Not routine personnel discipline) • Agency has authority to enforce law • Uncharged Suspect • Confidential Source or Witness • Physical Safety • Investigatory techniques or procedures • Investigatory Work Product Step 2 Release of record would disclose the following:

  44. Confidential Law Enforcement Investigatory Records (CLEIRs) Examination of Step Two Uncharged Suspect No Arrest or Indictment Confidential Source Promised Confidentiality; Only identity not information Physical Safety Must be self-evident Investigatory Techniquesor Procedures Must be sophisticated; Lose efficacy if widely known Investigatory Work Product All complied documents;Expires when case is over