Editorial: Growing darker
Officials continue to erode access to government records
Editorial, The Columbus Dispatch, July 10, 2011

Ohioans are losing the ability to monitor their government as elected officials chisel away at public-records laws.

Want to conceal corruption, abuse of power, misspending or ineptitude? The General Assembly, the Ohio Supreme Court and several governors have provided a helping hand. Lawmakers seek to exempt more and more public information from disclosure and executive-privilege exemptions are invented out of whole cloth.

When these don't suffice, public officials have taken to devising legal dodges, such as branding narrow and specific records requests as "overly broad."

The latest assault is a law that caps damages for agencies that fail to maintain records in accordance with public-records law. This virtually rules out lawsuits by capping legal-fees awards at an insufficient $10,000 and limiting damages to the same amount. Previously, agencies could be sued for $1,000 per destroyed document, with no maximum.

The new law also requires public-records lawsuits to be filed within five years of a record having been destroyed. So Ohioans who might someday need a record must now be clairvoyant.

State Sen. Bill Seitz, who sponsored the measure, said it was needed to thwart those who set out to profit from government errors, as when a litigant was awarded $1.4 million because Bucyrus improperly destroyed records by recording over 911 tapes from the 1990s.

But Seitz's bill is a recipe for coverup. Even the dimmest public officials can grasp that it's more advantageous to pay a $10,000 fine than to release public records that could get them booted from office or lead to a corruption conviction.

Then on Thursday, the Ohio Supreme Court ruled 7-0 that agencies should face fines for destroying records only when the request for those records was sincere. Those who request destroyed records simply in the hopes of collecting penalties from government officials are "not aggrieved," Justice Yvette McGee Brown wrote for the court.

Citizens now have the worst of all worlds: The new law makes it financially prohibitive to sue, and the court ruling forces them to prove pure intentions. Lawmakers should rescind these caps and do so before a scandal can illustrate that this law is deleterious to the public good.

Ohio is moving toward "a total eclipse of the Sunshine Laws," Trent Dougherty, director of legal affairs for the Ohio Environmental Council, told the Associated Press.

The Sunshine Laws forbid secret meetings and require records be made available for public inspection. They recognize that government workers serve as paid guardians, not owners, of public information, a concept that seems to have escaped officials amid other recent attempts to clamp down on public access:

• Law-enforcement agencies might be allowed to withhold a cruiser's dash-cam video when it depicts an officer's death, under a bill that state Sen. Frank LaRose, R-Akron, is considering.

This ostensibly is intended to spare relatives, but it also could shield evidence of police misbehavior.

• Probation officers will be added to the list of law-enforcement employees whose home addresses are shielded, under a bill sent to the governor Wednesday.

As state financial support declines, officials at public universities want exemptions, or "relief," from some parts of the public-records law.

These come on the heels of a 2006 Ohio Supreme Court ruling that invented the qualified gubernatorial-communications privilege for then-Gov. Bob Taft, seeking to withhold memos amid the Ohio Bureau of Workers' Compensation investment scandal.

And in 2005, the Ohio Supreme Court shut down access to state employees' addresses, concluding they were an "administrative convenience," not a public record, though news organizations routinely use this information to seek out whistleblowers or to confirm identities in a tragedy. In one instance, this information helped determine that two Columbus Police narcotics officers were owners of rental properties being used by drug dealers.

Members of the public routinely seek access to records, but unlike news organizations, they may lack the time and money to sue when records are destroyed or withheld.

People request public records for all sorts of reasons: Citizens want to fight a rezoning proposal; a small business wants to determine whether government rejected its low bid because of political shenanigans; parents seek to check a potential baby sitter for criminal or civil judgments; and block-watch groups might want to evaluate neighborhood crime and police response.

Bret Vinocur, a volunteer who helps crime victims through BlockParole.com, has fought the parole of more than 40 rapists and murderers. In April, as he prepared a case against a criminal who murdered an OSU student, Vinocur was denied records routinely provided in the past.

"The parole board no longer releases Institutional Summary Reports," an email from the Department of Rehabilitation and Correction informed him.

"Those documents revealed all the parole board's mistakes," Vinocur said, after learning of the administrative-rule change. He had successfully used these prison-progress reports to prove to the parole board that it had based its decisions on faulty information: Inmates were still violent or hadn't completed training or victim-awareness classes. "This will almost completely destroy my ability to fight these new paroles. This is very bad news for the victims of crime." And for other Ohioans who may encounter criminals who should not have been released.

Simply knowing that records can be reviewed tends to discourage improper conduct. Access to public records has revealed and helped recover millions of dollars worth of government misspending or theft.

Louis Brandeis, who became a U.S. Supreme Court justice, put it simply nearly 100 years ago: "Sunlight is said to be the best of disinfectants."

Ohio's elected officials are diluting that disinfectant.