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:
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(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
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(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
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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
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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
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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
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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
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(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
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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
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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