As Passed by the Senate                       1            

123rd General Assembly                                             4            

   Regular Session                        Sub. H. B. No. 539       5            

      1999-2000                                                    6            


      REPRESENTATIVES GOODMAN-CORBIN-CAREY-VAN VYVEN-EVANS-        9            

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

   FLANNERY-O'BRIEN-DePIERO-ALLEN-HARTNETT-A. CORE-FERDERBER-      10           

 BUEHRER-J. BEATTY-SALERNO-VERICH-BARNES-ROMAN-STEVENS-WINKLER-    12           

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

        BRITTON-MOTTLEY-TERWILLEGER-GOODING-SMITH-JONES-           14           

                  SENATORS SPADA-SCHAFRATH-ESPY                                 


_________________________________________________________________   16           

                          A   B I L L                                           

             To amend section 149.43 of the Revised Code to        18           

                exclude from the Public Records Law information    19           

                pertaining to the recreational activities of a                  

                person under 18 years of age, to exclude from the  20           

                exception to the definition of a "public record"   21           

                certain peace officer residential and familial                  

                information, to include the Superintendent and     22           

                troopers of the State Highway Patrol within the                 

                definition of a peace officer for purposes of the  23           

                peace officer residential and familial             24           

                information exception, and to declare an                        

                emergency.                                                      




BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:        26           

      Section 1.  That section 149.43 of the Revised Code be       28           

amended to read as follows:                                        29           

      Sec. 149.43.  (A)  As used in this section:                  38           

      (1)  "Public record" means any record that is kept by any    40           

public office, including, but not limited to, state, county,       41           

city, village, township, and school district units, except that    43           

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

                                                          2      


                                                                 
      (a)  Medical records;                                        45           

      (b)  Records pertaining to probation and parole              47           

proceedings;                                                                    

      (c)  Records pertaining to actions under section 2151.85     49           

and division (C) of section 2919.121 of the Revised Code and to    51           

appeals of actions arising under those sections;                   52           

      (d)  Records pertaining to adoption proceedings, including   54           

the contents of an adoption file maintained by the department of   55           

health under section 3705.12 of the Revised Code;                  56           

      (e)  Information in a record contained in the putative       58           

father registry established by section 3107.062 of the Revised     59           

Code, regardless of whether the information is held by the         60           

department of job and family services or, pursuant to section      62           

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

the department or a child support enforcement agency;              63           

      (f)  Records listed in division (A) of section 3107.42 of    65           

the Revised Code or specified in division (A) of section 3107.52   66           

of the Revised Code;                                                            

      (g)  Trial preparation records;                              68           

      (h)  Confidential law enforcement investigatory records;     70           

      (i)  Records containing information that is confidential     72           

under section 2317.023 or 4112.05 of the Revised Code;             73           

      (j)  DNA records stored in the DNA database pursuant to      76           

section 109.573 of the Revised Code;                                            

      (k)  Inmate records released by the department of            78           

rehabilitation and correction to the department of youth services  80           

or a court of record pursuant to division (E) of section 5120.21   81           

of the Revised Code;                                                            

      (l)  Records maintained by the department of youth services  83           

pertaining to children in its custody released by the department   84           

of youth services to the department of rehabilitation and          85           

correction pursuant to section 5139.05 of the Revised Code;        86           

      (m)  Intellectual property records;                          88           

      (n)  Donor profile records;                                  90           

                                                          3      


                                                                 
      (o)  Records maintained by the department of human JOB AND   92           

FAMILY services pursuant to section 5101.312 of the Revised Code;  94           

      (p)  Peace officer residential and familial information;     96           

      (q)  In the case of a county hospital operated pursuant to   99           

Chapter 339. of the Revised Code, information that constitutes a   101          

trade secret, as defined in section 1333.61 of the Revised Code;   102          

      (r)  INFORMATION PERTAINING TO THE RECREATIONAL ACTIVITIES   104          

OF A PERSON UNDER THE AGE OF EIGHTEEN;                             105          

      (s)  Records the release of which is prohibited by state or  107          

federal law.                                                       108          

      (2)  "Confidential law enforcement investigatory record"     110          

means any record that pertains to a law enforcement matter of a    111          

criminal, quasi-criminal, civil, or administrative nature, but     112          

only to the extent that the release of the record would create a   113          

high probability of disclosure of any of the following:            114          

      (a)  The identity of a suspect who has not been charged      116          

with the offense to which the record pertains, or of an            117          

information source or witness to whom confidentiality has been     118          

reasonably promised;                                               119          

      (b)  Information provided by an information source or        121          

witness to whom confidentiality has been reasonably promised,      122          

which information would reasonably tend to disclose the source's   123          

or witness's identity;                                             124          

      (c)  Specific confidential investigatory techniques or       126          

procedures or specific investigatory work product;                 127          

      (d)  Information that would endanger the life or physical    129          

safety of law enforcement personnel, a crime victim, a witness,    130          

or a confidential information source.                              131          

      (3)  "Medical record" means any document or combination of   133          

documents, except births, deaths, and the fact of admission to or  134          

discharge from a hospital, that pertains to the medical history,   135          

diagnosis, prognosis, or medical condition of a patient and that   136          

is generated and maintained in the process of medical treatment.   137          

      (4)  "Trial preparation record" means any record that        139          

                                                          4      


                                                                 
contains information that is specifically compiled in reasonable   140          

anticipation of, or in defense of, a civil or criminal action or   141          

proceeding, including the independent thought processes and        142          

personal trial preparation of an attorney.                         143          

      (5)  "Intellectual property record" means a record, other    146          

than a financial or administrative record, that is produced or                  

collected by or for faculty or staff of a state institution of     147          

higher learning in the conduct of or as a result of study or       148          

research on an educational, commercial, scientific, artistic,      149          

technical, or scholarly issue, regardless of whether the study or  150          

research was sponsored by the institution alone or in conjunction               

with a governmental body or private concern, and that has not      152          

been publicly released, published, or patented.                    153          

      (6)  "Donor profile record" means all records about donors   155          

or potential donors to a public institution of higher education    156          

except the names and reported addresses of the actual donors and   157          

the date, amount, and conditions of the actual donation.           158          

      (7)  "Peace officer residential and familial information"    160          

means information that discloses any EITHER of the following:      161          

      (a)  ANY INFORMATION MAINTAINED IN A PERSONNEL RECORD OF A   164          

PEACE OFFICER THAT DISCLOSES ANY OF THE FOLLOWING:                 165          

      (i)  The address of the actual personal residence of a       167          

peace officer, except for the state or political subdivision in    168          

which the peace officer resides;                                   169          

      (b)(ii)  Information compiled from referral to or            171          

participation in an employee assistance program;                   173          

      (c)(iii)  The social security number, the residential        175          

telephone number, any bank account, debit card, charge card, or    177          

credit card number, or the emergency telephone number of, or any   178          

medical information pertaining to, a peace officer;                179          

      (d)(iv)  The name of any beneficiary of employment           181          

benefits, including, but not limited to, life insurance benefits,  183          

provided to a peace officer by the peace officer's employer;       184          

      (e)(v)  The identity and amount of any charitable or         186          

                                                          5      


                                                                 
employment benefit deduction made by the peace officer's employer  188          

from the peace officer's compensation unless the amount of the     189          

deduction is required by state or federal law;                     190          

      (f)(vi)  The name, the residential address, the name of the  192          

employer, the address of the employer, the social security         194          

number, the residential telephone number, any bank account, debit  195          

card, charge card, or credit card number, or the emergency         196          

telephone number of the spouse, a former spouse, or any child of   197          

a peace officer.                                                                

      (b)  ANY RECORD THAT IDENTIFIES A PERSON'S OCCUPATION AS A   199          

PEACE OFFICER OTHER THAN STATEMENTS REQUIRED TO INCLUDE THE        200          

DISCLOSURE OF THAT FACT UNDER THE CAMPAIGN FINANCE LAW.            202          

      As used in divisions (A)(7) and (B)(5) of this section,      204          

"peace officer" has the same meaning as in section 109.71 of the   206          

Revised Code, except that "peace officer" AND ALSO INCLUDES THE    207          

SUPERINTENDENT AND TROOPERS OF THE STATE HIGHWAY PATROL; IT does   208          

not include the sheriff of a county or a supervisory employee      209          

who, in the absence of the sheriff, is authorized to stand in      210          

for, exercise the authority of, and perform the duties of the      211          

sheriff.                                                                        

      (8)  "INFORMATION PERTAINING TO THE RECREATIONAL ACTIVITIES  213          

OF A PERSON UNDER THE AGE OF EIGHTEEN" MEANS INFORMATION THAT IS   215          

KEPT IN THE ORDINARY COURSE OF BUSINESS BY A PUBLIC OFFICE, THAT   216          

PERTAINS TO THE RECREATIONAL ACTIVITIES OF A PERSON UNDER THE AGE               

OF EIGHTEEN YEARS, AND THAT DISCLOSES ANY OF THE FOLLOWING:        218          

      (a)  THE ADDRESS OR TELEPHONE NUMBER OF A PERSON UNDER THE   220          

AGE OF EIGHTEEN OR THE ADDRESS OR TELEPHONE NUMBER OF THAT         221          

PERSON'S PARENT, GUARDIAN, CUSTODIAN, OR EMERGENCY CONTACT         222          

PERSON;                                                                         

      (b)  THE SOCIAL SECURITY NUMBER, BIRTH DATE, OR              224          

PHOTOGRAPHIC IMAGE OF A PERSON UNDER THE AGE OF EIGHTEEN;          225          

      (c)  ANY MEDICAL RECORD, HISTORY, OR INFORMATION PERTAINING  227          

TO A PERSON UNDER THE AGE OF EIGHTEEN;                             228          

      (d)  ANY ADDITIONAL INFORMATION SOUGHT OR REQUIRED ABOUT A   230          

                                                          6      


                                                                 
PERSON UNDER THE AGE OF EIGHTEEN FOR THE PURPOSE OF ALLOWING THAT  231          

PERSON TO PARTICIPATE IN ANY RECREATIONAL ACTIVITY CONDUCTED OR    232          

SPONSORED BY A PUBLIC OFFICE OR TO USE OR OBTAIN ADMISSION         234          

PRIVILEGES TO ANY RECREATIONAL FACILITY OWNED OR OPERATED BY A     235          

PUBLIC OFFICE.                                                                  

      (B)(1)  Subject to division (B)(4) of this section, all      237          

public records shall be promptly prepared and made available for   239          

inspection to any person at all reasonable times during regular    240          

business hours.  Subject to division (B)(4) of this section, upon  241          

request, a public office or person responsible for public records  242          

shall make copies available at cost, within a reasonable period    243          

of time.  In order to facilitate broader access to public          244          

records, public offices shall maintain public records in a manner  245          

that they can be made available for inspection in accordance with  246          

this division.                                                                  

      (2)  If any person chooses to obtain a copy of a public      248          

record in accordance with division (B)(1) of this section, the     250          

public office or person responsible for the public record shall                 

permit that person to choose to have the public record duplicated  252          

upon paper, upon the same medium upon which the public office or   253          

person responsible for the public record keeps it, or upon any     255          

other medium upon which the public office or person responsible                 

for the public record determines that it reasonably can be         257          

duplicated as an integral part of the normal operations of the     258          

public office or person responsible for the public record.  When   259          

the person seeking the copy makes a choice under this division,    260          

the public office or person responsible for the public record      261          

shall provide a copy of it in accordance with the choice made by   263          

the person seeking the copy.                                                    

      (3)  Upon a request made in accordance with division (B)(1)  265          

of this section, a public office or person responsible for public  266          

records shall transmit a copy of a public record to any person by  267          

United States mail within a reasonable period of time after        268          

receiving the request for the copy.  The public office or person   270          

                                                          7      


                                                                 
responsible for the public record may require the person making    271          

the request to pay in advance the cost of postage and other        272          

supplies used in the mailing.                                      273          

      Any public office may adopt a policy and procedures that it  276          

will follow in transmitting, within a reasonable period of time    277          

after receiving a request, copies of public records by United      279          

States mail pursuant to this division.  A public office that       281          

adopts a policy and procedures under this division shall comply    282          

with them in performing its duties under this division.            283          

      In any policy and procedures adopted under this division, a  285          

public office may limit the number of records requested by a       286          

person that the office will transmit by United States mail to ten  287          

per month, unless the person certifies to the office in writing    288          

that the person does not intend to use or forward the requested    289          

records, or the information contained in them, for commercial      291          

purposes.  For purposes of this division, "commercial" shall be    292          

narrowly construed and does not include reporting or gathering                  

news, reporting or gathering information to assist citizen         293          

oversight or understanding of the operation or activities of       294          

government, or nonprofit educational research.                     295          

      (4)  A public office or person responsible for public        297          

records is not required to permit a person who is incarcerated     298          

pursuant to a criminal conviction or a juvenile adjudication to    299          

inspect or to obtain a copy of any public record concerning a      300          

criminal investigation or prosecution or concerning what would be  301          

a criminal investigation or prosecution if the subject of the      302          

investigation or prosecution were an adult, unless the request to  303          

inspect or to obtain a copy of the record is for the purpose of    304          

acquiring information that is subject to release as a public       305          

record under this section and the judge who imposed the sentence   306          

or made the adjudication with respect to the person, or the        307          

judge's successor in office, finds that the information sought in  308          

the public record is necessary to support what appears to be a     309          

justiciable claim of the person.                                   310          

                                                          8      


                                                                 
      (5)  Upon written request made and signed by a journalist    312          

on or after the effective date of this amendment DECEMBER 16,      313          

1999, a public office, or person responsible for public records,   315          

having custody of the records of the agency employing a specified  316          

peace officer shall disclose to the journalist the address of the  318          

actual personal residence of the peace officer and, if the peace   319          

officer's spouse, former spouse, or child is employed by a public  320          

office, the name and address of the employer of the peace          321          

officer's spouse, former spouse, or child.  The request shall      322          

include the journalist's name and title and the name and address   323          

of the journalist's employer and shall state that disclosure of    324          

the information sought would be in the public interest.            325          

      As used in division (B)(5) of this section, "journalist"     327          

means a person engaged in, connected with, or employed by any      328          

news medium, including a newspaper, magazine, press association,   329          

news agency, or wire service, a radio or television station, or a  330          

similar medium, for the purpose of gathering, processing,          331          

transmitting, compiling, editing, or disseminating information     332          

for the general public.                                            333          

      (C)  If a person allegedly is aggrieved by the failure of a  335          

public office to promptly prepare a public record and to make it   337          

available to the person for inspection in accordance with                       

division (B) of this section, or if a person who has requested a   339          

copy of a public record allegedly is aggrieved by the failure of   340          

a public office or the person responsible for the public record    342          

to make a copy available to the person allegedly aggrieved in      343          

accordance with division (B) of this section, the person           344          

allegedly aggrieved may commence a mandamus action to obtain a     345          

judgment that orders the public office or the person responsible   346          

for the public record to comply with division (B) of this section  347          

and that awards reasonable attorney's fees to the person that      348          

instituted the mandamus action.  The mandamus action may be        349          

commenced in the court of common pleas of the county in which      350          

division (B) of this section allegedly was not complied with, in   351          

                                                          9      


                                                                 
the supreme court pursuant to its original jurisdiction under      352          

Section 2 of Article IV, Ohio Constitution, or in the court of     353          

appeals for the appellate district in which division (B) of this   354          

section allegedly was not complied with pursuant to its original   355          

jurisdiction under Section 3 of Article IV, Ohio Constitution.     356          

      (D)  Chapter 1347. of the Revised Code does not limit the    358          

provisions of this section.                                        359          

      (E)(1)  The bureau of motor vehicles may adopt rules         361          

pursuant to Chapter 119. of the Revised Code to reasonably limit   363          

the number of bulk commercial special extraction requests made by               

a person for the same records or for updated records during a      364          

calendar year.  The rules may include provisions for charges to    365          

be made for bulk commercial special extraction requests for the    367          

actual cost of the bureau, plus special extraction costs, plus     368          

ten per cent.  The bureau may charge for expenses for redacting    369          

information, the release of which is prohibited by law.            370          

      (2)  As used in divisions (B)(3) and (E)(1) of this          372          

section:                                                                        

      (a)  "Actual cost" means the cost of depleted supplies,      374          

records storage media costs, actual mailing and alternative        375          

delivery costs, or other transmitting costs, and any direct        376          

equipment operating and maintenance costs, including actual costs  377          

paid to private contractors for copying services.                  378          

      (b)  "Bulk commercial special extraction request" means a    380          

request for copies of a record for information in a format other   381          

than the format already available, or information that cannot be   382          

extracted without examination of all items in a records series,    383          

class of records, or data base by a person who intends to use or   384          

forward the copies for surveys, marketing, solicitation, or        385          

resale for commercial purposes.  "Bulk commercial special          386          

extraction request" does not include a request by a person who     387          

gives assurance to the bureau that the person making the request   388          

does not intend to use or forward the requested copies for         389          

surveys, marketing, solicitation, or resale for commercial         390          

                                                          10     


                                                                 
purposes.                                                                       

      (c)  "Commercial" means profit-seeking production, buying,   392          

or selling of any good, service, or other product.                 393          

      (d)  "Special extraction costs" means the cost of the time   395          

spent by the lowest paid employee competent to perform the task,   396          

the actual amount paid to outside private contractors employed by  397          

the bureau, or the actual cost incurred to create computer         398          

programs to make the special extraction.  "Special extraction      399          

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

or records services.                                               400          

      (3)  For purposes of divisions (E)(1) and (2) of this        403          

section, "commercial surveys, marketing, solicitation, or resale"  404          

shall be narrowly construed and does not include reporting or                   

gathering news, reporting or gathering information to assist       406          

citizen oversight or understanding of the operation or activities  407          

of government, or nonprofit educational research.                  408          

      Section 2.  That existing section 149.43 of the Revised      410          

Code is hereby repealed.                                           411          

      Section 3.  This act is hereby declared to be an emergency   413          

measure necessary for the immediate preservation of the public     414          

peace, health, and safety.  The reason for the necessity is that   415          

immediate action is required for the bill's recreational           416          

activities provisions to apply to the summer 2000 recreational                  

season.  Therefore, this act shall go into immediate effect.       417