As Reported by the Senate Judiciary Committee 1 123rd General Assembly 4 Regular Session S. B. No. 78 5 1999-2000 6 SENATORS OELSLAGER-CUPP-DiDONATO-MUMPER 8 _________________________________________________________________ 10 A B I L L To amend section 149.43 of the Revised Code to 12 generally grant members of the public the option 14 of choosing the medium in which they will receive copies of public records and to require a public 15 office to transmit copies of a public record through the United States mail if so requested. 16 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO: 18 Section 1. That section 149.43 of the Revised Code be 20 amended to read as follows: 21 Sec. 149.43. (A) As used in this section: 30 (1) "Public record" means any record that is kept by any 32 public office, including, but not limited to, state, county, 33 city, village, township, and school district units, except that 35 "public record" does not mean any of the following: (a) Medical records; 37 (b) Records pertaining to probation and parole 39 proceedings; (c) Records pertaining to actions under section 2151.85 41 and division (C) of section 2919.121 of the Revised Code and to 43 appeals of actions arising under those sections; 44 (d) Records pertaining to adoption proceedings, including 46 the contents of an adoption file maintained by the department of 47 health under section 3705.12 of the Revised Code; 48 (e) Information in a record contained in the putative 50 father registry established by section 3107.062 of the Revised 51 Code, regardless of whether the information is held by the 52 2 department of human services or, pursuant to section 5101.313 of 53 the Revised Code, the division of child support in the department 54 or a child support enforcement agency; (f) Records listed in division (A) of section 3107.42 of 56 the Revised Code or specified in division (A) of section 3107.52 57 of the Revised Code; (g) Trial preparation records; 59 (h) Confidential law enforcement investigatory records; 61 (i) Records containing information that is confidential 63 under section 2317.023 or 4112.05 of the Revised Code; 64 (j) DNA records stored in the DNA database pursuant to 67 section 109.573 of the Revised Code; (k) Inmate records released by the department of 69 rehabilitation and correction to the department of youth services 71 or a court of record pursuant to division (E) of section 5120.21 72 of the Revised Code; (l) Records maintained by the department of youth services 74 pertaining to children in its custody released by the department 75 of youth services to the department of rehabilitation and 76 correction pursuant to section 5139.05 of the Revised Code; 77 (m) Intellectual property records; 79 (n) Donor profile records; 81 (o) Records maintained by the department of human services 83 pursuant to section 5101.312 of the Revised Code; 84 (p) Records the release of which is prohibited by state or 86 federal law. 87 (2) "Confidential law enforcement investigatory record" 89 means any record that pertains to a law enforcement matter of a 90 criminal, quasi-criminal, civil, or administrative nature, but 91 only to the extent that the release of the record would create a 92 high probability of disclosure of any of the following: 93 (a) The identity of a suspect who has not been charged 95 with the offense to which the record pertains, or of an 96 information source or witness to whom confidentiality has been 97 3 reasonably promised; 98 (b) Information provided by an information source or 100 witness to whom confidentiality has been reasonably promised, 101 which information would reasonably tend to disclose the source's 102 or witness's identity; 103 (c) Specific confidential investigatory techniques or 105 procedures or specific investigatory work product; 106 (d) Information that would endanger the life or physical 108 safety of law enforcement personnel, a crime victim, a witness, 109 or a confidential information source. 110 (3) "Medical record" means any document or combination of 112 documents, except births, deaths, and the fact of admission to or 113 discharge from a hospital, that pertains to the medical history, 114 diagnosis, prognosis, or medical condition of a patient and that 115 is generated and maintained in the process of medical treatment. 116 (4) "Trial preparation record" means any record that 118 contains information that is specifically compiled in reasonable 119 anticipation of, or in defense of, a civil or criminal action or 120 proceeding, including the independent thought processes and 121 personal trial preparation of an attorney. 122 (5) "Intellectual property record" means a record, other 125 than a financial or administrative record, that is produced or collected by or for faculty or staff of a state institution of 126 higher learning in the conduct of or as a result of study or 127 research on an educational, commercial, scientific, artistic, 128 technical, or scholarly issue, regardless of whether the study or 129 research was sponsored by the institution alone or in conjunction with a governmental body or private concern, and that has not 131 been publicly released, published, or patented. 132 (6) "Donor profile record" means all records about donors 134 or potential donors to a public institution of higher education 135 except the names and reported addresses of the actual donors and 136 the date, amount, and conditions of the actual donation. 137 (B)(1) All public records shall be promptly prepared and 139 4 made available for inspection to any person at all reasonable 140 times during regular business hours. Upon request, a PUBLIC 141 OFFICE OR person responsible for public records shall make copies 142 available at cost, within a reasonable period of time. In order 143 to facilitate broader access to public records,governmental144unitsPUBLIC OFFICES shall maintain public records in a manner 146 that they can be made available for inspection in accordance with 147 this division. (2) IF ANY PERSON CHOOSES TO OBTAIN A COPY OF A PUBLIC 149 RECORD, THE PUBLIC OFFICE OR PERSON RESPONSIBLE FOR THE PUBLIC 150 RECORD SHALL PERMIT THAT PERSON TO CHOOSE TO HAVE THE PUBLIC 152 RECORD DUPLICATED UPON PAPER, UPON THE SAME MEDIUM UPON WHICH THE 153 PUBLIC OFFICE OR PERSON RESPONSIBLE FOR THE PUBLIC RECORD KEEPS IT, OR UPON ANY OTHER MEDIUM UPON WHICH THE PUBLIC OFFICE OR 155 PERSON RESPONSIBLE FOR THE PUBLIC RECORD DETERMINES THAT IT 157 REASONABLY CAN BE DUPLICATED AS AN INTEGRAL PART OF THE NORMAL 158 OPERATIONS OF THE PUBLIC OFFICE OR PERSON RESPONSIBLE FOR THE 159 PUBLIC RECORD. WHEN THE PERSON SEEKING THE COPY MAKES A CHOICE 160 UNDER THIS DIVISION, THE PUBLIC OFFICE OR PERSON RESPONSIBLE FOR 161 THE PUBLIC RECORD SHALL PROVIDE A COPY OF IT IN ACCORDANCE WITH 163 THE CHOICE MADE BY THE PERSON SEEKING THE COPY. (3) UPON REQUEST, A PUBLIC OFFICE OR PERSON RESPONSIBLE 165 FOR PUBLIC RECORDS SHALL TRANSMIT A COPY OF A PUBLIC RECORD TO 166 ANY PERSON BY UNITED STATES MAIL WITHIN A REASONABLE PERIOD OF 167 TIME AFTER RECEIVING A REQUEST FOR THE COPY. THE PUBLIC OFFICE 169 OR PERSON RESPONSIBLE FOR THE PUBLIC RECORD MAY REQUIRE THE 170 PERSON MAKING THE REQUEST TO PAY IN ADVANCE THE COST OF POSTAGE 171 AND OTHER SUPPLIES USED IN THE MAILING. 173 ANY PUBLIC OFFICE MAY ADOPT A POLICY AND PROCEDURES THAT IT 176 WILL FOLLOW IN TRANSMITTING, WITHIN A REASONABLE PERIOD OF TIME 177 AFTER RECEIVING A REQUEST, COPIES OF PUBLIC RECORDS BY UNITED 180 STATES MAIL PURSUANT TO THIS DIVISION. A PUBLIC OFFICE THAT 181 ADOPTS A POLICY AND PROCEDURES UNDER THIS DIVISION SHALL COMPLY 182 WITH THEM IN PERFORMING ITS DUTIES UNDER THIS DIVISION. 183 5 (C) If a person allegedly is aggrieved by the failure of a 185governmental unitPUBLIC OFFICE to promptly prepare a public 186 record and to make it available to the person for inspection in 188 accordance with division (B) of this section, or if a person who 190 has requested a copy of a public record allegedly is aggrieved by 191 the failure of a PUBLIC OFFICE OR THE person responsible for the 193 public record to make a copy available to the person allegedly 194 aggrieved in accordance with division (B) of this section, the 195 person allegedly aggrieved may commence a mandamus action to 196 obtain a judgment that orders thegovernmental unitPUBLIC OFFICE 197 or the person responsible for the public record to comply with 199 division (B) of this section and that awards reasonable 200 attorney's fees to the person that instituted the mandamus 201 action. The mandamus action may be commenced in the court of 202 common pleas of the county in which division (B) of this section 203 allegedly was not complied with, in the supreme court pursuant to 204 its original jurisdiction under Section 2 of Article IV, Ohio 205 Constitution, or in the court of appeals for the appellate 206 district in which division (B) of this section allegedly was not 207 complied with pursuant to its original jurisdiction under Section 208 3 of Article IV, Ohio Constitution. (D) Chapter 1347. of the Revised Code does not limit the 210 provisions of this section. 211 (E)(1) The bureau of motor vehicles may adopt rules 213 pursuant to Chapter 119. of the Revised Code to reasonably limit 215 the number of bulk commercial special extraction requests made by a person for the same records or for updated records during a 216 calendar year. The rules may include provisions for charges to 217 be made for bulk commercial special extraction requests for the 219 actual cost of the bureau, plus special extraction costs, plus 220 ten per cent. The bureau may charge for expenses for redacting 221 information, the release of which is prohibited by law. 222 (2) As used in division (E)(1) of this section: 224 (a) "Actual cost" means the cost of depleted supplies, 226 6 records storage media costs, actual mailing and alternative 227 delivery costs, or other transmitting costs, and any direct 228 equipment operating and maintenance costs, including actual costs 229 paid to private contractors for copying services. 230 (b) "Bulk commercial special extraction request" means a 232 request for copies of a record for information in a format other 233 than the format already available, or information that cannot be 234 extracted without examination of all items in a records series, 235 class of records, or data base by a person who intends to use or 236 forward the copies for surveys, marketing, solicitation, or 237 resale for commercial purposes. "Bulk commercial special 238 extraction request" does not include a request by a person who 239 gives assurance to the bureau that the person making the request 240 does not intend to use or forward the requested copies for 241 surveys, marketing, solicitation, or resale for commercial 242 purposes. (c) "Commercial" means profit-seeking production, buying, 244 or selling of any good, service, or other product. 245 (d) "Special extraction costs" means the cost of the time 247 spent by the lowest paid employee competent to perform the task, 248 the actual amount paid to outside private contractors employed by 249 the bureau, or the actual cost incurred to create computer 250 programs to make the special extraction. "Special extraction 251 costs" include any charges paid to a public agency for computer or records services. 252 (3) For purposes of divisions (E)(1) and (2) of this 255 section, "commercial surveys, marketing, solicitation, or resale" 256 shall be narrowly construed and does not include reporting or gathering news, reporting or gathering information to assist 258 citizen oversight or understanding of the operation or activities 259 of government, or nonprofit educational research. 260 Section 2. That existing section 149.43 of the Revised 262 Code is hereby repealed. 263