As Reported by the Senate State and Local Government and Veterans  2            

                        Affairs Committee                                       

123rd General Assembly                                             5            

   Regular Session                        Sub. H. B. No. 539       6            

      1999-2000                                                    7            


      REPRESENTATIVES GOODMAN-CORBIN-CAREY-VAN VYVEN-EVANS-        10           

  R. MILLER-JOLIVETTE-VESPER-JACOBSON-WILLIAMS-PRINGLE-REDFERN-                 

   FLANNERY-O'BRIEN-DePIERO-ALLEN-HARTNETT-A. CORE-FERDERBER-      11           

 BUEHRER-J. BEATTY-SALERNO-VERICH-BARNES-ROMAN-STEVENS-WINKLER-    13           

    D. MILLER-METELSKY-SCHULER-HARRIS-BRADING-CLANCY-BARRETT-                   

        BRITTON-MOTTLEY-TERWILLEGER-GOODING-SMITH-JONES-           15           

                    SENATORS SPADA-SCHAFRATH                                    


_________________________________________________________________   17           

                          A   B I L L                                           

             To amend section 149.43 of the Revised Code to        19           

                exclude from the Public Records Law information    20           

                pertaining to the recreational activities of a                  

                person under 18 years of age, to exclude from the  21           

                exception to the definition of a "public record"   22           

                certain peace officer residential and familial                  

                information, to include the Superintendent and     23           

                troopers of the State Highway Patrol within the                 

                definition of a peace officer for purposes of the  24           

                peace officer residential and familial             25           

                information exception, and to declare an                        

                emergency.                                                      




BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:        27           

      Section 1.  That section 149.43 of the Revised Code be       29           

amended to read as follows:                                        30           

      Sec. 149.43.  (A)  As used in this section:                  39           

      (1)  "Public record" means any record that is kept by any    41           

public office, including, but not limited to, state, county,       42           

city, village, township, and school district units, except that    44           

                                                          2      


                                                                 
"public record" does not mean any of the following:                             

      (a)  Medical records;                                        46           

      (b)  Records pertaining to probation and parole              48           

proceedings;                                                                    

      (c)  Records pertaining to actions under section 2151.85     50           

and division (C) of section 2919.121 of the Revised Code and to    52           

appeals of actions arising under those sections;                   53           

      (d)  Records pertaining to adoption proceedings, including   55           

the contents of an adoption file maintained by the department of   56           

health under section 3705.12 of the Revised Code;                  57           

      (e)  Information in a record contained in the putative       59           

father registry established by section 3107.062 of the Revised     60           

Code, regardless of whether the information is held by the         61           

department of job and family services or, pursuant to section      63           

5101.313 of the Revised Code, the division of child support in                  

the department or a child support enforcement agency;              64           

      (f)  Records listed in division (A) of section 3107.42 of    66           

the Revised Code or specified in division (A) of section 3107.52   67           

of the Revised Code;                                                            

      (g)  Trial preparation records;                              69           

      (h)  Confidential law enforcement investigatory records;     71           

      (i)  Records containing information that is confidential     73           

under section 2317.023 or 4112.05 of the Revised Code;             74           

      (j)  DNA records stored in the DNA database pursuant to      77           

section 109.573 of the Revised Code;                                            

      (k)  Inmate records released by the department of            79           

rehabilitation and correction to the department of youth services  81           

or a court of record pursuant to division (E) of section 5120.21   82           

of the Revised Code;                                                            

      (l)  Records maintained by the department of youth services  84           

pertaining to children in its custody released by the department   85           

of youth services to the department of rehabilitation and          86           

correction pursuant to section 5139.05 of the Revised Code;        87           

      (m)  Intellectual property records;                          89           

                                                          3      


                                                                 
      (n)  Donor profile records;                                  91           

      (o)  Records maintained by the department of human JOB AND   93           

FAMILY services pursuant to section 5101.312 of the Revised Code;  95           

      (p)  Peace officer residential and familial information;     97           

      (q)  In the case of a county hospital operated pursuant to   100          

Chapter 339. of the Revised Code, information that constitutes a   102          

trade secret, as defined in section 1333.61 of the Revised Code;   103          

      (r)  INFORMATION PERTAINING TO THE RECREATIONAL ACTIVITIES   105          

OF A PERSON UNDER THE AGE OF EIGHTEEN;                             106          

      (s)  Records the release of which is prohibited by state or  108          

federal law.                                                       109          

      (2)  "Confidential law enforcement investigatory record"     111          

means any record that pertains to a law enforcement matter of a    112          

criminal, quasi-criminal, civil, or administrative nature, but     113          

only to the extent that the release of the record would create a   114          

high probability of disclosure of any of the following:            115          

      (a)  The identity of a suspect who has not been charged      117          

with the offense to which the record pertains, or of an            118          

information source or witness to whom confidentiality has been     119          

reasonably promised;                                               120          

      (b)  Information provided by an information source or        122          

witness to whom confidentiality has been reasonably promised,      123          

which information would reasonably tend to disclose the source's   124          

or witness's identity;                                             125          

      (c)  Specific confidential investigatory techniques or       127          

procedures or specific investigatory work product;                 128          

      (d)  Information that would endanger the life or physical    130          

safety of law enforcement personnel, a crime victim, a witness,    131          

or a confidential information source.                              132          

      (3)  "Medical record" means any document or combination of   134          

documents, except births, deaths, and the fact of admission to or  135          

discharge from a hospital, that pertains to the medical history,   136          

diagnosis, prognosis, or medical condition of a patient and that   137          

is generated and maintained in the process of medical treatment.   138          

                                                          4      


                                                                 
      (4)  "Trial preparation record" means any record that        140          

contains information that is specifically compiled in reasonable   141          

anticipation of, or in defense of, a civil or criminal action or   142          

proceeding, including the independent thought processes and        143          

personal trial preparation of an attorney.                         144          

      (5)  "Intellectual property record" means a record, other    147          

than a financial or administrative record, that is produced or                  

collected by or for faculty or staff of a state institution of     148          

higher learning in the conduct of or as a result of study or       149          

research on an educational, commercial, scientific, artistic,      150          

technical, or scholarly issue, regardless of whether the study or  151          

research was sponsored by the institution alone or in conjunction               

with a governmental body or private concern, and that has not      153          

been publicly released, published, or patented.                    154          

      (6)  "Donor profile record" means all records about donors   156          

or potential donors to a public institution of higher education    157          

except the names and reported addresses of the actual donors and   158          

the date, amount, and conditions of the actual donation.           159          

      (7)  "Peace officer residential and familial information"    161          

means information that discloses any EITHER of the following:      162          

      (a)  ANY INFORMATION MAINTAINED IN A PERSONNEL RECORD OF A   165          

PEACE OFFICER THAT DISCLOSES ANY OF THE FOLLOWING:                 166          

      (i)  The address of the actual personal residence of a       168          

peace officer, except for the state or political subdivision in    169          

which the peace officer resides;                                   170          

      (b)(ii)  Information compiled from referral to or            172          

participation in an employee assistance program;                   174          

      (c)(iii)  The social security number, the residential        176          

telephone number, any bank account, debit card, charge card, or    178          

credit card number, or the emergency telephone number of, or any   179          

medical information pertaining to, a peace officer;                180          

      (d)(iv)  The name of any beneficiary of employment           182          

benefits, including, but not limited to, life insurance benefits,  184          

provided to a peace officer by the peace officer's employer;       185          

                                                          5      


                                                                 
      (e)(v)  The identity and amount of any charitable or         187          

employment benefit deduction made by the peace officer's employer  189          

from the peace officer's compensation unless the amount of the     190          

deduction is required by state or federal law;                     191          

      (f)(vi)  The name, the residential address, the name of the  193          

employer, the address of the employer, the social security         195          

number, the residential telephone number, any bank account, debit  196          

card, charge card, or credit card number, or the emergency         197          

telephone number of the spouse, a former spouse, or any child of   198          

a peace officer.                                                                

      (b)  ANY RECORD THAT IDENTIFIES A PERSON'S OCCUPATION AS A   200          

PEACE OFFICER OTHER THAN STATEMENTS REQUIRED TO INCLUDE THE        201          

DISCLOSURE OF THAT FACT UNDER THE CAMPAIGN FINANCE LAW.            203          

      As used in divisions (A)(7) and (B)(5) of this section,      205          

"peace officer" has the same meaning as in section 109.71 of the   207          

Revised Code, except that "peace officer" AND ALSO INCLUDES THE    208          

SUPERINTENDENT AND TROOPERS OF THE STATE HIGHWAY PATROL; IT does   209          

not include the sheriff of a county or a supervisory employee      210          

who, in the absence of the sheriff, is authorized to stand in      211          

for, exercise the authority of, and perform the duties of the      212          

sheriff.                                                                        

      (8)  "INFORMATION PERTAINING TO THE RECREATIONAL ACTIVITIES  214          

OF A PERSON UNDER THE AGE OF EIGHTEEN" MEANS INFORMATION THAT IS   216          

KEPT IN THE ORDINARY COURSE OF BUSINESS BY A PUBLIC OFFICE, THAT   217          

PERTAINS TO THE RECREATIONAL ACTIVITIES OF A PERSON UNDER THE AGE               

OF EIGHTEEN YEARS, AND THAT DISCLOSES ANY OF THE FOLLOWING:        219          

      (a)  THE ADDRESS OR TELEPHONE NUMBER OF A PERSON UNDER THE   221          

AGE OF EIGHTEEN OR THE ADDRESS OR TELEPHONE NUMBER OF THAT         222          

PERSON'S PARENT, GUARDIAN, CUSTODIAN, OR EMERGENCY CONTACT         223          

PERSON;                                                                         

      (b)  THE SOCIAL SECURITY NUMBER, BIRTH DATE, OR              225          

PHOTOGRAPHIC IMAGE OF A PERSON UNDER THE AGE OF EIGHTEEN;          226          

      (c)  ANY MEDICAL RECORD, HISTORY, OR INFORMATION PERTAINING  228          

TO A PERSON UNDER THE AGE OF EIGHTEEN;                             229          

                                                          6      


                                                                 
      (d)  ANY ADDITIONAL INFORMATION SOUGHT OR REQUIRED ABOUT A   231          

PERSON UNDER THE AGE OF EIGHTEEN FOR THE PURPOSE OF ALLOWING THAT  232          

PERSON TO PARTICIPATE IN ANY RECREATIONAL ACTIVITY CONDUCTED OR    233          

SPONSORED BY A PUBLIC OFFICE OR TO USE OR OBTAIN ADMISSION         235          

PRIVILEGES TO ANY RECREATIONAL FACILITY OWNED OR OPERATED BY A     236          

PUBLIC OFFICE.                                                                  

      (B)(1)  Subject to division (B)(4) of this section, all      238          

public records shall be promptly prepared and made available for   240          

inspection to any person at all reasonable times during regular    241          

business hours.  Subject to division (B)(4) of this section, upon  242          

request, a public office or person responsible for public records  243          

shall make copies available at cost, within a reasonable period    244          

of time.  In order to facilitate broader access to public          245          

records, public offices shall maintain public records in a manner  246          

that they can be made available for inspection in accordance with  247          

this division.                                                                  

      (2)  If any person chooses to obtain a copy of a public      249          

record in accordance with division (B)(1) of this section, the     251          

public office or person responsible for the public record shall                 

permit that person to choose to have the public record duplicated  253          

upon paper, upon the same medium upon which the public office or   254          

person responsible for the public record keeps it, or upon any     256          

other medium upon which the public office or person responsible                 

for the public record determines that it reasonably can be         258          

duplicated as an integral part of the normal operations of the     259          

public office or person responsible for the public record.  When   260          

the person seeking the copy makes a choice under this division,    261          

the public office or person responsible for the public record      262          

shall provide a copy of it in accordance with the choice made by   264          

the person seeking the copy.                                                    

      (3)  Upon a request made in accordance with division (B)(1)  266          

of this section, a public office or person responsible for public  267          

records shall transmit a copy of a public record to any person by  268          

United States mail within a reasonable period of time after        269          

                                                          7      


                                                                 
receiving the request for the copy.  The public office or person   271          

responsible for the public record may require the person making    272          

the request to pay in advance the cost of postage and other        273          

supplies used in the mailing.                                      274          

      Any public office may adopt a policy and procedures that it  277          

will follow in transmitting, within a reasonable period of time    278          

after receiving a request, copies of public records by United      280          

States mail pursuant to this division.  A public office that       282          

adopts a policy and procedures under this division shall comply    283          

with them in performing its duties under this division.            284          

      In any policy and procedures adopted under this division, a  286          

public office may limit the number of records requested by a       287          

person that the office will transmit by United States mail to ten  288          

per month, unless the person certifies to the office in writing    289          

that the person does not intend to use or forward the requested    290          

records, or the information contained in them, for commercial      292          

purposes.  For purposes of this division, "commercial" shall be    293          

narrowly construed and does not include reporting or gathering                  

news, reporting or gathering information to assist citizen         294          

oversight or understanding of the operation or activities of       295          

government, or nonprofit educational research.                     296          

      (4)  A public office or person responsible for public        298          

records is not required to permit a person who is incarcerated     299          

pursuant to a criminal conviction or a juvenile adjudication to    300          

inspect or to obtain a copy of any public record concerning a      301          

criminal investigation or prosecution or concerning what would be  302          

a criminal investigation or prosecution if the subject of the      303          

investigation or prosecution were an adult, unless the request to  304          

inspect or to obtain a copy of the record is for the purpose of    305          

acquiring information that is subject to release as a public       306          

record under this section and the judge who imposed the sentence   307          

or made the adjudication with respect to the person, or the        308          

judge's successor in office, finds that the information sought in  309          

the public record is necessary to support what appears to be a     310          

                                                          8      


                                                                 
justiciable claim of the person.                                   311          

      (5)  Upon written request made and signed by a journalist    313          

on or after the effective date of this amendment DECEMBER 16,      314          

1999, a public office, or person responsible for public records,   316          

having custody of the records of the agency employing a specified  317          

peace officer shall disclose to the journalist the address of the  319          

actual personal residence of the peace officer and, if the peace   320          

officer's spouse, former spouse, or child is employed by a public  321          

office, the name and address of the employer of the peace          322          

officer's spouse, former spouse, or child.  The request shall      323          

include the journalist's name and title and the name and address   324          

of the journalist's employer and shall state that disclosure of    325          

the information sought would be in the public interest.            326          

      As used in division (B)(5) of this section, "journalist"     328          

means a person engaged in, connected with, or employed by any      329          

news medium, including a newspaper, magazine, press association,   330          

news agency, or wire service, a radio or television station, or a  331          

similar medium, for the purpose of gathering, processing,          332          

transmitting, compiling, editing, or disseminating information     333          

for the general public.                                            334          

      (C)  If a person allegedly is aggrieved by the failure of a  336          

public office to promptly prepare a public record and to make it   338          

available to the person for inspection in accordance with                       

division (B) of this section, or if a person who has requested a   340          

copy of a public record allegedly is aggrieved by the failure of   341          

a public office or the person responsible for the public record    343          

to make a copy available to the person allegedly aggrieved in      344          

accordance with division (B) of this section, the person           345          

allegedly aggrieved may commence a mandamus action to obtain a     346          

judgment that orders the public office or the person responsible   347          

for the public record to comply with division (B) of this section  348          

and that awards reasonable attorney's fees to the person that      349          

instituted the mandamus action.  The mandamus action may be        350          

commenced in the court of common pleas of the county in which      351          

                                                          9      


                                                                 
division (B) of this section allegedly was not complied with, in   352          

the supreme court pursuant to its original jurisdiction under      353          

Section 2 of Article IV, Ohio Constitution, or in the court of     354          

appeals for the appellate district in which division (B) of this   355          

section allegedly was not complied with pursuant to its original   356          

jurisdiction under Section 3 of Article IV, Ohio Constitution.     357          

      (D)  Chapter 1347. of the Revised Code does not limit the    359          

provisions of this section.                                        360          

      (E)(1)  The bureau of motor vehicles may adopt rules         362          

pursuant to Chapter 119. of the Revised Code to reasonably limit   364          

the number of bulk commercial special extraction requests made by               

a person for the same records or for updated records during a      365          

calendar year.  The rules may include provisions for charges to    366          

be made for bulk commercial special extraction requests for the    368          

actual cost of the bureau, plus special extraction costs, plus     369          

ten per cent.  The bureau may charge for expenses for redacting    370          

information, the release of which is prohibited by law.            371          

      (2)  As used in divisions (B)(3) and (E)(1) of this          373          

section:                                                                        

      (a)  "Actual cost" means the cost of depleted supplies,      375          

records storage media costs, actual mailing and alternative        376          

delivery costs, or other transmitting costs, and any direct        377          

equipment operating and maintenance costs, including actual costs  378          

paid to private contractors for copying services.                  379          

      (b)  "Bulk commercial special extraction request" means a    381          

request for copies of a record for information in a format other   382          

than the format already available, or information that cannot be   383          

extracted without examination of all items in a records series,    384          

class of records, or data base by a person who intends to use or   385          

forward the copies for surveys, marketing, solicitation, or        386          

resale for commercial purposes.  "Bulk commercial special          387          

extraction request" does not include a request by a person who     388          

gives assurance to the bureau that the person making the request   389          

does not intend to use or forward the requested copies for         390          

                                                          10     


                                                                 
surveys, marketing, solicitation, or resale for commercial         391          

purposes.                                                                       

      (c)  "Commercial" means profit-seeking production, buying,   393          

or selling of any good, service, or other product.                 394          

      (d)  "Special extraction costs" means the cost of the time   396          

spent by the lowest paid employee competent to perform the task,   397          

the actual amount paid to outside private contractors employed by  398          

the bureau, or the actual cost incurred to create computer         399          

programs to make the special extraction.  "Special extraction      400          

costs" include any charges paid to a public agency for computer                 

or records services.                                               401          

      (3)  For purposes of divisions (E)(1) and (2) of this        404          

section, "commercial surveys, marketing, solicitation, or resale"  405          

shall be narrowly construed and does not include reporting or                   

gathering news, reporting or gathering information to assist       407          

citizen oversight or understanding of the operation or activities  408          

of government, or nonprofit educational research.                  409          

      Section 2.  That existing section 149.43 of the Revised      411          

Code is hereby repealed.                                           412          

      Section 3.  This act is hereby declared to be an emergency   414          

measure necessary for the immediate preservation of the public     415          

peace, health, and safety.  The reason for the necessity is that   416          

immediate action is required for the bill's recreational           417          

activities provisions to apply to the summer 2000 recreational                  

season.  Therefore, this act shall go into immediate effect.       418