130th Ohio General Assembly
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As Passed by the Senate

123rd General Assembly
Regular Session
1999-2000
S. B. No. 78

SENATORS OELSLAGER-CUPP-DiDONATO-MUMPER-WATTS-HOTTINGER-BRADY


A BILL
To amend section 149.43 of the Revised Code to generally grant members of the public the option of choosing the medium in which they will receive copies of public records and to require a public office to transmit copies of a public record through the United States mail if so requested.

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


Section 1. That section 149.43 of the Revised Code be amended to read as follows:

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

(1) "Public record" means any record that is kept by any public office, including, but not limited to, state, county, city, village, township, and school district units, except that "public record" does not mean any of the following:

(a) Medical records;

(b) Records pertaining to probation and parole proceedings;

(c) Records pertaining to actions under section 2151.85 and division (C) of section 2919.121 of the Revised Code and to appeals of actions arising under those sections;

(d) Records pertaining to adoption proceedings, including the contents of an adoption file maintained by the department of health under section 3705.12 of the Revised Code;

(e) Information in a record contained in the putative father registry established by section 3107.062 of the Revised Code, regardless of whether the information is held by the department of human services or, pursuant to section 5101.313 of the Revised Code, the division of child support in the department or a child support enforcement agency;

(f) Records listed in division (A) of section 3107.42 of the Revised Code or specified in division (A) of section 3107.52 of the Revised Code;

(g) Trial preparation records;

(h) Confidential law enforcement investigatory records;

(i) Records containing information that is confidential under section 2317.023 or 4112.05 of the Revised Code;

(j) DNA records stored in the DNA database pursuant to section 109.573 of the Revised Code;

(k) Inmate records released by the department of rehabilitation and correction to the department of youth services or a court of record pursuant to division (E) of section 5120.21 of the Revised Code;

(l) Records maintained by the department of youth services pertaining to children in its custody released by the department of youth services to the department of rehabilitation and correction pursuant to section 5139.05 of the Revised Code;

(m) Intellectual property records;

(n) Donor profile records;

(o) Records maintained by the department of human services pursuant to section 5101.312 of the Revised Code;

(p) Records the release of which is prohibited by state or federal law.

(2) "Confidential law enforcement investigatory record" means any record that pertains to a law enforcement matter of a criminal, quasi-criminal, civil, or administrative nature, but only to the extent that the release of the record would create a high probability of disclosure of any of the following:

(a) The identity of a suspect who has not been charged with the offense to which the record pertains, or of an information source or witness to whom confidentiality has been reasonably promised;

(b) Information provided by an information source or witness to whom confidentiality has been reasonably promised, which information would reasonably tend to disclose the source's or witness's identity;

(c) Specific confidential investigatory techniques or procedures or specific investigatory work product;

(d) Information that would endanger the life or physical safety of law enforcement personnel, a crime victim, a witness, or a confidential information source.

(3) "Medical record" means any document or combination of documents, except births, deaths, and the fact of admission to or discharge from a hospital, that pertains to the medical history, diagnosis, prognosis, or medical condition of a patient and that is generated and maintained in the process of medical treatment.

(4) "Trial preparation record" means any record that contains information that is specifically compiled in reasonable anticipation of, or in defense of, a civil or criminal action or proceeding, including the independent thought processes and personal trial preparation of an attorney.

(5) "Intellectual property record" means a record, other than a financial or administrative record, that is produced or collected by or for faculty or staff of a state institution of higher learning in the conduct of or as a result of study or research on an educational, commercial, scientific, artistic, technical, or scholarly issue, regardless of whether the study or research was sponsored by the institution alone or in conjunction with a governmental body or private concern, and that has not been publicly released, published, or patented.

(6) "Donor profile record" means all records about donors or potential donors to a public institution of higher education except the names and reported addresses of the actual donors and the date, amount, and conditions of the actual donation.

(B)(1) All public records shall be promptly prepared and made available for inspection to any person at all reasonable times during regular business hours. Upon request, a PUBLIC OFFICE OR person responsible for public records shall make copies available at cost, within a reasonable period of time. In order to facilitate broader access to public records, governmental units PUBLIC OFFICES shall maintain public records in a manner that they can be made available for inspection in accordance with this division.

(2) IF ANY PERSON CHOOSES TO OBTAIN A COPY OF A PUBLIC RECORD, THE PUBLIC OFFICE OR PERSON RESPONSIBLE FOR THE PUBLIC RECORD SHALL PERMIT THAT PERSON TO CHOOSE TO HAVE THE PUBLIC RECORD DUPLICATED UPON PAPER, UPON THE SAME MEDIUM UPON WHICH THE PUBLIC OFFICE OR PERSON RESPONSIBLE FOR THE PUBLIC RECORD KEEPS IT, OR UPON ANY OTHER MEDIUM UPON WHICH THE PUBLIC OFFICE OR PERSON RESPONSIBLE FOR THE PUBLIC RECORD DETERMINES THAT IT REASONABLY CAN BE DUPLICATED AS AN INTEGRAL PART OF THE NORMAL OPERATIONS OF THE PUBLIC OFFICE OR PERSON RESPONSIBLE FOR THE PUBLIC RECORD. WHEN THE PERSON SEEKING THE COPY MAKES A CHOICE UNDER THIS DIVISION, THE PUBLIC OFFICE OR PERSON RESPONSIBLE FOR THE PUBLIC RECORD SHALL PROVIDE A COPY OF IT IN ACCORDANCE WITH THE CHOICE MADE BY THE PERSON SEEKING THE COPY.

(3) UPON REQUEST, A PUBLIC OFFICE OR PERSON RESPONSIBLE FOR PUBLIC RECORDS SHALL TRANSMIT A COPY OF A PUBLIC RECORD TO ANY PERSON BY UNITED STATES MAIL WITHIN A REASONABLE PERIOD OF TIME AFTER RECEIVING A REQUEST FOR THE COPY. THE PUBLIC OFFICE OR PERSON RESPONSIBLE FOR THE PUBLIC RECORD MAY REQUIRE THE PERSON MAKING THE REQUEST TO PAY IN ADVANCE THE COST OF POSTAGE AND OTHER SUPPLIES USED IN THE MAILING.

ANY PUBLIC OFFICE MAY ADOPT A POLICY AND PROCEDURES THAT IT WILL FOLLOW IN TRANSMITTING, WITHIN A REASONABLE PERIOD OF TIME AFTER RECEIVING A REQUEST, COPIES OF PUBLIC RECORDS BY UNITED STATES MAIL PURSUANT TO THIS DIVISION. A PUBLIC OFFICE THAT ADOPTS A POLICY AND PROCEDURES UNDER THIS DIVISION SHALL COMPLY WITH THEM IN PERFORMING ITS DUTIES UNDER THIS DIVISION.

(C) If a person allegedly is aggrieved by the failure of a governmental unit PUBLIC OFFICE to promptly prepare a public record and to make it available to the person for inspection in accordance with division (B) of this section, or if a person who has requested a copy of a public record allegedly is aggrieved by the failure of a PUBLIC OFFICE OR THE person responsible for the public record to make a copy available to the person allegedly aggrieved in accordance with division (B) of this section, the person allegedly aggrieved may commence a mandamus action to obtain a judgment that orders the governmental unit PUBLIC OFFICE or the person responsible for the public record to comply with division (B) of this section and that awards reasonable attorney's fees to the person that instituted the mandamus action. The mandamus action may be commenced in the court of common pleas of the county in which division (B) of this section allegedly was not complied with, in the supreme court pursuant to its original jurisdiction under Section 2 of Article IV, Ohio Constitution, or in the court of appeals for the appellate district in which division (B) of this section allegedly was not complied with pursuant to its original jurisdiction under Section 3 of Article IV, Ohio Constitution.

(D) Chapter 1347. of the Revised Code does not limit the provisions of this section.

(E)(1) The bureau of motor vehicles may adopt rules pursuant to Chapter 119. of the Revised Code to reasonably limit the number of bulk commercial special extraction requests made by a person for the same records or for updated records during a calendar year. The rules may include provisions for charges to be made for bulk commercial special extraction requests for the actual cost of the bureau, plus special extraction costs, plus ten per cent. The bureau may charge for expenses for redacting information, the release of which is prohibited by law.

(2) As used in division (E)(1) of this section:

(a) "Actual cost" means the cost of depleted supplies, records storage media costs, actual mailing and alternative delivery costs, or other transmitting costs, and any direct equipment operating and maintenance costs, including actual costs paid to private contractors for copying services.

(b) "Bulk commercial special extraction request" means a request for copies of a record for information in a format other than the format already available, or information that cannot be extracted without examination of all items in a records series, class of records, or data base by a person who intends to use or forward the copies for surveys, marketing, solicitation, or resale for commercial purposes. "Bulk commercial special extraction request" does not include a request by a person who gives assurance to the bureau that the person making the request does not intend to use or forward the requested copies for surveys, marketing, solicitation, or resale for commercial purposes.

(c) "Commercial" means profit-seeking production, buying, or selling of any good, service, or other product.

(d) "Special extraction costs" means the cost of the time spent by the lowest paid employee competent to perform the task, the actual amount paid to outside private contractors employed by the bureau, or the actual cost incurred to create computer programs to make the special extraction. "Special extraction costs" include any charges paid to a public agency for computer or records services.

(3) For purposes of divisions (E)(1) and (2) of this section, "commercial surveys, marketing, solicitation, or resale" shall be narrowly construed and does not include reporting or gathering news, reporting or gathering information to assist citizen oversight or understanding of the operation or activities of government, or nonprofit educational research.


Section 2. That existing section 149.43 of the Revised Code is hereby repealed.
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