Legislation that will significantly expand the remedies available to requesters of public records will take effect on September 28, 2016. The effect on local governments responding to public records requests is not yet clear. S.B. 321 was passed unanimously on May 25, 2016.
Beginning September 28, 2016, individuals may dispute the delay or denial of a public records request in the Ohio Court of Claims. The Court of Claims process is the first of its kind in the nation and is intended to make the process of disputing public records request denials or delays simple and affordable.
New Court of Claims Dispute Resolution Process
An individual may file a complaint with the Court of Claims by filing the complaint on a form that will be available online starting on September 28th and paying a fee of $25. The complaint must be filed either in the Court of Claims or in the court of common pleas of the county where the public office from which records have been requested is located.
In most cases, the dispute will be referred to mediation. However, if the parties are unable to mediate the dispute to a resolution, a special master, currently former Assistant Attorney General Jeff Clark, will consider the dispute. Public offices must respond to the complaint within 10 business days from the date mediation is terminated. Each party may attach affidavits in support of its complaint or response, but may not conduct discovery. The special master will issue a report and a recommendation based on the relevant law at the time of filing.
If the special master’s recommendation is approved by the Court of Claims, then the recommendation becomes binding on the parties. Either party may object to the recommendation. Upon objection, the Court of Claims will reconsider the recommendation before making a final order. Either party may appeal the final order of the Court of Claims to the state appellate court of the county where the public office is located.
A prevailing complainant is entitled to receive copies of the public record, as well as recover the $25 filing fee and other costs associated with the action. Typically, the complainant may not recover attorney’s fees.
(Please see the chart below for a more detailed explanation of the Court of Claims process.)
Auditor and Ohio Attorney General Dispute Services Discontinued
Prior to the introduction of the new Court of Claims process, the Ohio Auditor and the Ohio Attorney General established services to address public records disputes. Neither dispute resolution service provided a legally binding decision to the parties, but both served as affordable alternatives to a mandamus action. The Ohio Attorney General and the Auditor have discontinued such services given the new Court of Claims process.
Mandamus Action Still Available, but Public Office Can Recover if Frivolous
Individuals are still afforded the option to dispute a public records denial or delay by filing a writ of mandamus to compel the public office to release the records. Such action is often expensive and time-intensive, but also allows the parties to engage in discovery.
Further, a court may compel the relator to pay the public office’s court costs, expenses, and reasonable attorney’s fees if the relator files a frivolous mandamus action.
Additional Changes to Ohio Public Records Law
S.B. 321 also made the following changes to Ohio’s public records law:
- A relator may be awarded reasonable attorney’s fees if the court determines the public office acted in bad faith, but the law precludes discovery on the issue of bad faith.
- If a writ is not issued and the court determines that the mandamus action was frivolous conduct, the court may award the public office all court costs, expenses, and reasonable attorney’s fees.
- A relator may be awarded court costs if the records are provided in bad faith after the individual initiates a mandamus action, but before the court issues an order on the mandamus action. Prior law required awarding court costs to relator if the court orders the public office to comply with the public records law.
- If a public office provides records on a free, accessible, searchable website, then the public office can limit the number of records it will digitally deliver to 10 records per month. However, a public office must provide records if not available online or if the requestor certifies that the records will be used for a non-commercial purpose. Prior law only limited the number of records transmitted by U.S. mail to 10 records per month.
- Infrastructure records of a private entity may be exempt from disclosure. This exemption applies if the record is accompanied by a written statement affirming the expectation of protection from disclosure.
- The defendant, counsel, or agent of a defendant in a criminal action making a request for public records related to the case must serve a copy of the request to the prosecutor, and the public records request is considered a demand for discovery pursuant to the Criminal Rules unless a contrary intent is indicated.
- A private, non-profit institution of higher education shall not be held liable for any claim that arises due to disclosure of public records, including a breach of confidentiality claim, as a result of their disclosure of a public record.
Municipalities, school districts, and other entities subject to Ohio’s public records laws should expect individuals to utilize the new process to more readily dispute a denial or delay of a public records request. Entities subject to Ohio’s public records law should review their public records policy for consistency with the Ohio laws, and familiarize themselves with the new Court of Claims dispute resolution process and the complaint form when it goes live on September 28th.
If you have any questions about this change in the law, please contact a member of Walter | Haverfield’s Public Law group.