As Reported by House Ethics and Standards Committee 1 123rd General Assembly 4 Regular Session Sub. S. B. No. 78 5 1999-2000 6 SENATORS OELSLAGER-CUPP-DiDONATO-MUMPER-WATTS-HOTTINGER-BRADY- 8 REPRESENTATIVES JACOBSON-WILLIAMS-BUEHRER-AMSTUTZ-THOMAS-GOODMAN- 9 JOLIVETTE 10 _________________________________________________________________ 11 A B I L L To amend section 149.43 of the Revised Code to 13 generally grant members of the public the option 15 of choosing the medium in which they will receive copies of public records, to require a public 16 office to transmit copies of a public record through the United States mail if so requested, 17 and to generally exclude peace officer 18 residential and familial information from the scope of the Open Records Law. 19 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO: 21 Section 1. That section 149.43 of the Revised Code be 23 amended to read as follows: 24 Sec. 149.43. (A) As used in this section: 33 (1) "Public record" means any record that is kept by any 35 public office, including, but not limited to, state, county, 36 city, village, township, and school district units, except that 38 "public record" does not mean any of the following: (a) Medical records; 40 (b) Records pertaining to probation and parole 42 proceedings; (c) Records pertaining to actions under section 2151.85 44 and division (C) of section 2919.121 of the Revised Code and to 46 appeals of actions arising under those sections; 47 (d) Records pertaining to adoption proceedings, including 49 2 the contents of an adoption file maintained by the department of 50 health under section 3705.12 of the Revised Code; 51 (e) Information in a record contained in the putative 53 father registry established by section 3107.062 of the Revised 54 Code, regardless of whether the information is held by the 55 department of human services or, pursuant to section 5101.313 of 56 the Revised Code, the division of child support in the department 57 or a child support enforcement agency; (f) Records listed in division (A) of section 3107.42 of 59 the Revised Code or specified in division (A) of section 3107.52 60 of the Revised Code; (g) Trial preparation records; 62 (h) Confidential law enforcement investigatory records; 64 (i) Records containing information that is confidential 66 under section 2317.023 or 4112.05 of the Revised Code; 67 (j) DNA records stored in the DNA database pursuant to 70 section 109.573 of the Revised Code; (k) Inmate records released by the department of 72 rehabilitation and correction to the department of youth services 74 or a court of record pursuant to division (E) of section 5120.21 75 of the Revised Code; (l) Records maintained by the department of youth services 77 pertaining to children in its custody released by the department 78 of youth services to the department of rehabilitation and 79 correction pursuant to section 5139.05 of the Revised Code; 80 (m) Intellectual property records; 82 (n) Donor profile records; 84 (o) Records maintained by the department of human services 86 pursuant to section 5101.312 of the Revised Code; 87 (p) PEACE OFFICER RESIDENTIAL AND FAMILIAL INFORMATION; 89 (q) Records the release of which is prohibited by state or 91 federal law. 92 (2) "Confidential law enforcement investigatory record" 94 means any record that pertains to a law enforcement matter of a 95 3 criminal, quasi-criminal, civil, or administrative nature, but 96 only to the extent that the release of the record would create a 97 high probability of disclosure of any of the following: 98 (a) The identity of a suspect who has not been charged 100 with the offense to which the record pertains, or of an 101 information source or witness to whom confidentiality has been 102 reasonably promised; 103 (b) Information provided by an information source or 105 witness to whom confidentiality has been reasonably promised, 106 which information would reasonably tend to disclose the source's 107 or witness's identity; 108 (c) Specific confidential investigatory techniques or 110 procedures or specific investigatory work product; 111 (d) Information that would endanger the life or physical 113 safety of law enforcement personnel, a crime victim, a witness, 114 or a confidential information source. 115 (3) "Medical record" means any document or combination of 117 documents, except births, deaths, and the fact of admission to or 118 discharge from a hospital, that pertains to the medical history, 119 diagnosis, prognosis, or medical condition of a patient and that 120 is generated and maintained in the process of medical treatment. 121 (4) "Trial preparation record" means any record that 123 contains information that is specifically compiled in reasonable 124 anticipation of, or in defense of, a civil or criminal action or 125 proceeding, including the independent thought processes and 126 personal trial preparation of an attorney. 127 (5) "Intellectual property record" means a record, other 130 than a financial or administrative record, that is produced or collected by or for faculty or staff of a state institution of 131 higher learning in the conduct of or as a result of study or 132 research on an educational, commercial, scientific, artistic, 133 technical, or scholarly issue, regardless of whether the study or 134 research was sponsored by the institution alone or in conjunction with a governmental body or private concern, and that has not 136 4 been publicly released, published, or patented. 137 (6) "Donor profile record" means all records about donors 139 or potential donors to a public institution of higher education 140 except the names and reported addresses of the actual donors and 141 the date, amount, and conditions of the actual donation. 142 (7) "PEACE OFFICER RESIDENTIAL AND FAMILIAL INFORMATION" 144 MEANS INFORMATION THAT DISCLOSES ANY OF THE FOLLOWING: 145 (a) THE ADDRESS OF THE ACTUAL PERSONAL RESIDENCE OF A 147 PEACE OFFICER, EXCEPT FOR THE STATE OR POLITICAL SUBDIVISION IN 148 WHICH THE PEACE OFFICER RESIDES; 149 (b) INFORMATION COMPILED FROM REFERRAL TO OR PARTICIPATION 151 IN AN EMPLOYEE ASSISTANCE PROGRAM; 152 (c) THE SOCIAL SECURITY NUMBER, THE RESIDENTIAL TELEPHONE 154 NUMBER, ANY BANK ACCOUNT, DEBIT CARD, CHARGE CARD, OR CREDIT CARD 155 NUMBER, OR THE EMERGENCY TELEPHONE NUMBER OF, OR ANY MEDICAL 156 INFORMATION PERTAINING TO, A PEACE OFFICER; 157 (d) THE NAME OF ANY BENEFICIARY OF EMPLOYMENT BENEFITS, 159 INCLUDING, BUT NOT LIMITED TO, LIFE INSURANCE BENEFITS, PROVIDED 161 TO A PEACE OFFICER BY THE PEACE OFFICER'S EMPLOYER; 162 (e) THE IDENTITY AND AMOUNT OF ANY CHARITABLE OR 164 EMPLOYMENT BENEFIT DEDUCTION MADE BY THE PEACE OFFICER'S EMPLOYER 165 FROM THE PEACE OFFICER'S COMPENSATION UNLESS THE AMOUNT OF THE 166 DEDUCTION IS REQUIRED BY STATE OR FEDERAL LAW; 167 (f) THE NAME, THE RESIDENTIAL ADDRESS, THE NAME OF THE 169 EMPLOYER, THE ADDRESS OF THE EMPLOYER, THE SOCIAL SECURITY 170 NUMBER, THE RESIDENTIAL TELEPHONE NUMBER, ANY BANK ACCOUNT, DEBIT 171 CARD, CHARGE CARD, OR CREDIT CARD NUMBER, OR THE EMERGENCY 172 TELEPHONE NUMBER OF THE SPOUSE, A FORMER SPOUSE, OR ANY CHILD OF 173 A PEACE OFFICER. AS USED IN DIVISIONS (A)(7) AND (B)(5) OF THIS SECTION, 175 "PEACE OFFICER" HAS THE SAME MEANING AS IN SECTION 109.71 OF THE 177 REVISED CODE, EXCEPT THAT "PEACE OFFICER" DOES NOT INCLUDE THE 178 SHERIFF OF A COUNTY OR A SUPERVISORY EMPLOYEE WHO, IN THE ABSENCE 179 OF THE SHERIFF, IS AUTHORIZED TO STAND IN FOR, EXERCISE THE 180 5 AUTHORITY OF, AND PERFORM THE DUTIES OF THE SHERIFF. 181 (B)All(1) SUBJECT TO DIVISION (B)(4) OF THIS SECTION, 184 ALL public records shall be promptly prepared and made available 185 for inspection to any person at all reasonable times during 186 regular business hours.UponSUBJECT TO DIVISION (B)(4) OF THIS 187 SECTION, UPON request, a PUBLIC OFFICE OR person responsible for 189 public records shall make copies available at cost, within a 190 reasonable period of time. In order to facilitate broader access 191 to public records,governmental unitsPUBLIC OFFICES shall 192 maintain public records in a manner that they can be made 193 available for inspection in accordance with this division. 194 (2) IF ANY PERSON CHOOSES TO OBTAIN A COPY OF A PUBLIC 196 RECORD IN ACCORDANCE WITH DIVISION (B)(1) OF THIS SECTION, THE 198 PUBLIC OFFICE OR PERSON RESPONSIBLE FOR THE PUBLIC RECORD SHALL PERMIT THAT PERSON TO CHOOSE TO HAVE THE PUBLIC RECORD DUPLICATED 200 UPON PAPER, UPON THE SAME MEDIUM UPON WHICH THE PUBLIC OFFICE OR 201 PERSON RESPONSIBLE FOR THE PUBLIC RECORD KEEPS IT, OR UPON ANY 203 OTHER MEDIUM UPON WHICH THE PUBLIC OFFICE OR PERSON RESPONSIBLE FOR THE PUBLIC RECORD DETERMINES THAT IT REASONABLY CAN BE 205 DUPLICATED AS AN INTEGRAL PART OF THE NORMAL OPERATIONS OF THE 206 PUBLIC OFFICE OR PERSON RESPONSIBLE FOR THE PUBLIC RECORD. WHEN 207 THE PERSON SEEKING THE COPY MAKES A CHOICE UNDER THIS DIVISION, 208 THE PUBLIC OFFICE OR PERSON RESPONSIBLE FOR THE PUBLIC RECORD 209 SHALL PROVIDE A COPY OF IT IN ACCORDANCE WITH THE CHOICE MADE BY 211 THE PERSON SEEKING THE COPY. (3) UPON A REQUEST MADE IN ACCORDANCE WITH DIVISION (B)(1) 213 OF THIS SECTION, A PUBLIC OFFICE OR PERSON RESPONSIBLE FOR PUBLIC 214 RECORDS SHALL TRANSMIT A COPY OF A PUBLIC RECORD TO ANY PERSON BY 215 UNITED STATES MAIL WITHIN A REASONABLE PERIOD OF TIME AFTER 216 RECEIVING THE REQUEST FOR THE COPY. THE PUBLIC OFFICE OR PERSON 218 RESPONSIBLE FOR THE PUBLIC RECORD MAY REQUIRE THE PERSON MAKING 219 THE REQUEST TO PAY IN ADVANCE THE COST OF POSTAGE AND OTHER 220 SUPPLIES USED IN THE MAILING. 221 ANY PUBLIC OFFICE MAY ADOPT A POLICY AND PROCEDURES THAT IT 224 6 WILL FOLLOW IN TRANSMITTING, WITHIN A REASONABLE PERIOD OF TIME 225 AFTER RECEIVING A REQUEST, COPIES OF PUBLIC RECORDS BY UNITED 228 STATES MAIL PURSUANT TO THIS DIVISION. A PUBLIC OFFICE THAT 229 ADOPTS A POLICY AND PROCEDURES UNDER THIS DIVISION SHALL COMPLY 230 WITH THEM IN PERFORMING ITS DUTIES UNDER THIS DIVISION. 231 IN ANY POLICY AND PROCEDURES ADOPTED UNDER THIS DIVISION, A 233 PUBLIC OFFICE MAY LIMIT THE NUMBER OF RECORDS REQUESTED BY A 234 PERSON THAT THE OFFICE WILL TRANSMIT BY UNITED STATES MAIL TO TEN 235 PER MONTH, UNLESS THE PERSON CERTIFIES TO THE OFFICE IN WRITING 236 THAT THE PERSON DOES NOT INTEND TO USE OR FORWARD THE REQUESTED 237 RECORDS, OR THE INFORMATION CONTAINED IN THEM, FOR COMMERCIAL 239 PURPOSES. FOR PURPOSES OF THIS DIVISION, "COMMERCIAL" SHALL BE 240 NARROWLY CONSTRUED AND DOES NOT INCLUDE REPORTING OR GATHERING NEWS, REPORTING OR GATHERING INFORMATION TO ASSIST CITIZEN 241 OVERSIGHT OR UNDERSTANDING OF THE OPERATION OR ACTIVITIES OF 242 GOVERNMENT, OR NONPROFIT EDUCATIONAL RESEARCH. 243 (4) A PUBLIC OFFICE OR PERSON RESPONSIBLE FOR PUBLIC 245 RECORDS IS NOT REQUIRED TO PERMIT A PERSON WHO IS INCARCERATED 246 PURSUANT TO A CRIMINAL CONVICTION OR A JUVENILE ADJUDICATION TO 247 INSPECT OR TO OBTAIN A COPY OF ANY PUBLIC RECORD CONCERNING A 248 CRIMINAL INVESTIGATION OR PROSECUTION OR CONCERNING WHAT WOULD BE 249 A CRIMINAL INVESTIGATION OR PROSECUTION IF THE SUBJECT OF THE 250 INVESTIGATION OR PROSECUTION WERE AN ADULT, UNLESS THE REQUEST TO 251 INSPECT OR TO OBTAIN A COPY OF THE RECORD IS FOR THE PURPOSE OF 252 ACQUIRING INFORMATION THAT IS SUBJECT TO RELEASE AS A PUBLIC 253 RECORD UNDER THIS SECTION AND THE JUDGE WHO IMPOSED THE SENTENCE 254 OR MADE THE ADJUDICATION WITH RESPECT TO THE PERSON, OR THE 255 JUDGE'S SUCCESSOR IN OFFICE, FINDS THAT THE INFORMATION SOUGHT IN 256 THE PUBLIC RECORD IS NECESSARY TO SUPPORT WHAT APPEARS TO BE A 257 JUSTICIABLE CLAIM OF THE PERSON. 258 (5) UPON WRITTEN REQUEST MADE AND SIGNED BY A JOURNALIST, 260 A PUBLIC OFFICE, OR PERSON RESPONSIBLE FOR PUBLIC RECORDS, HAVING 261 CUSTODY OF THE RECORDS OF THE AGENCY EMPLOYING A SPECIFIED PEACE 262 OFFICER SHALL DISCLOSE TO THE JOURNALIST THE ADDRESS OF THE 264 7 ACTUAL PERSONAL RESIDENCE OF THE PEACE OFFICER AND, IF THE PEACE 265 OFFICER'S SPOUSE, FORMER SPOUSE, OR CHILD IS EMPLOYED BY A PUBLIC 266 OFFICE, THE NAME AND ADDRESS OF THE EMPLOYER OF THE PEACE 267 OFFICER'S SPOUSE, FORMER SPOUSE, OR CHILD. THE REQUEST SHALL 268 INCLUDE THE JOURNALIST'S NAME AND TITLE AND THE NAME AND ADDRESS 269 OF THE JOURNALIST'S EMPLOYER AND SHALL STATE THAT DISCLOSURE OF 270 THE INFORMATION SOUGHT WOULD BE IN THE PUBLIC INTEREST. 271 AS USED IN DIVISION (B)(5) OF THIS SECTION, "JOURNALIST" 273 MEANS A PERSON ENGAGED IN, CONNECTED WITH, OR EMPLOYED BY ANY 274 NEWS MEDIUM, INCLUDING A NEWSPAPER, MAGAZINE, PRESS ASSOCIATION, 275 NEWS AGENCY, OR WIRE SERVICE, A RADIO OR TELEVISION STATION, OR A 276 SIMILAR MEDIUM, FOR THE PURPOSE OF GATHERING, PROCESSING, 277 TRANSMITTING, COMPILING, EDITING, OR DISSEMINATING NEWS FOR THE 278 GENERAL PUBLIC. 279 (C) If a person allegedly is aggrieved by the failure of a 281governmental unitPUBLIC OFFICE to promptly prepare a public 282 record and to make it available to the person for inspection in 284 accordance with division (B) of this section, or if a person who 286 has requested a copy of a public record allegedly is aggrieved by 287 the failure of a PUBLIC OFFICE OR THE person responsible for the 289 public record to make a copy available to the person allegedly 290 aggrieved in accordance with division (B) of this section, the 291 person allegedly aggrieved may commence a mandamus action to 292 obtain a judgment that orders thegovernmental unitPUBLIC OFFICE 293 or the person responsible for the public record to comply with 295 division (B) of this section and that awards reasonable 296 attorney's fees to the person that instituted the mandamus 297 action. The mandamus action may be commenced in the court of 298 common pleas of the county in which division (B) of this section 299 allegedly was not complied with, in the supreme court pursuant to 300 its original jurisdiction under Section 2 of Article IV, Ohio 301 Constitution, or in the court of appeals for the appellate 302 district in which division (B) of this section allegedly was not 303 complied with pursuant to its original jurisdiction under Section 304 8 3 of Article IV, Ohio Constitution. (D) Chapter 1347. of the Revised Code does not limit the 306 provisions of this section. 307 (E)(1) The bureau of motor vehicles may adopt rules 309 pursuant to Chapter 119. of the Revised Code to reasonably limit 311 the number of bulk commercial special extraction requests made by a person for the same records or for updated records during a 312 calendar year. The rules may include provisions for charges to 313 be made for bulk commercial special extraction requests for the 315 actual cost of the bureau, plus special extraction costs, plus 316 ten per cent. The bureau may charge for expenses for redacting 317 information, the release of which is prohibited by law. 318 (2) As used indivisionDIVISIONS (B)(3) AND (E)(1) of 320 this section: 321 (a) "Actual cost" means the cost of depleted supplies, 323 records storage media costs, actual mailing and alternative 324 delivery costs, or other transmitting costs, and any direct 325 equipment operating and maintenance costs, including actual costs 326 paid to private contractors for copying services. 327 (b) "Bulk commercial special extraction request" means a 329 request for copies of a record for information in a format other 330 than the format already available, or information that cannot be 331 extracted without examination of all items in a records series, 332 class of records, or data base by a person who intends to use or 333 forward the copies for surveys, marketing, solicitation, or 334 resale for commercial purposes. "Bulk commercial special 335 extraction request" does not include a request by a person who 336 gives assurance to the bureau that the person making the request 337 does not intend to use or forward the requested copies for 338 surveys, marketing, solicitation, or resale for commercial 339 purposes. (c) "Commercial" means profit-seeking production, buying, 341 or selling of any good, service, or other product. 342 (d) "Special extraction costs" means the cost of the time 344 9 spent by the lowest paid employee competent to perform the task, 345 the actual amount paid to outside private contractors employed by 346 the bureau, or the actual cost incurred to create computer 347 programs to make the special extraction. "Special extraction 348 costs" include any charges paid to a public agency for computer or records services. 349 (3) For purposes of divisions (E)(1) and (2) of this 352 section, "commercial surveys, marketing, solicitation, or resale" 353 shall be narrowly construed and does not include reporting or gathering news, reporting or gathering information to assist 355 citizen oversight or understanding of the operation or activities 356 of government, or nonprofit educational research. 357 Section 2. That existing section 149.43 of the Revised 359 Code is hereby repealed. 360