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H. B. No. 113 As IntroducedAs Introduced
129th General Assembly | Regular Session | 2011-2012 |
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Cosponsors:
Representatives Hagan, Gentile, Goyal, Williams, Szollosi, Clyde, Okey, Phillips, O'Brien, Murray, DeGeeter, Ramos, Foley, Driehaus, Pillich, Budish, Antonio, Yuko, Patmon, Milkovich, Gerberry, Stinziano, Letson, Boyd, Fende, Slesnick, Ashford, Celeste, Fedor, Garland, Mallory, Sykes
A BILL
To amend sections 121.22 and 149.43 of the Revised
Code to enact "The Taxpayer's Right to Know Act,"
specifying that records of public-private
partnerships that perform or assist with state
functions are public records, and that such
entities must conduct official business in open
meetings.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 121.22 and 149.43 of the Revised
Code be amended to read as follows:
Sec. 121.22. (A) This section shall be liberally construed
to require public officials to take official action and to conduct
all deliberations upon official business only in open meetings
unless the subject matter is specifically excepted by law.
(B) As used in this section:
(1) "Public body" means any of the following:
(a) Any board, commission, committee, council, or similar
decision-making body of a state agency, institution, or authority,
and any legislative authority or board, commission, committee,
council, agency, authority, or similar decision-making body of any
county, township, municipal corporation, school district, or other
political subdivision or local public institution;
(b) Any committee or subcommittee of a body described in
division (B)(1)(a) of this section;
(c) A court of jurisdiction of a sanitary district organized
wholly for the purpose of providing a water supply for domestic,
municipal, and public use when meeting for the purpose of the
appointment, removal, or reappointment of a member of the board of
directors of such a district pursuant to section 6115.10 of the
Revised Code, if applicable, or for any other matter related to
such a district other than litigation involving the district. As
used in division (B)(1)(c) of this section, "court of
jurisdiction" has the same meaning as "court" in section 6115.01
of the Revised Code.
(2) "Meeting" means any prearranged discussion of the public
business of the public body by a majority of its members.
(3) "Regulated individual" means either of the following:
(a) A student in a state or local public educational
institution;
(b) A person who is, voluntarily or involuntarily, an inmate,
patient, or resident of a state or local institution because of
criminal behavior, mental illness or retardation, disease,
disability, age, or other condition requiring custodial care.
(4) "Public office" has the same meaning as in section
149.011 of the Revised Code.
(C) All meetings of any public body are declared to be public
meetings open to the public at all times. A member of a public
body shall be present in person at a meeting open to the public to
be considered present or to vote at the meeting and for purposes
of determining whether a quorum is present at the meeting.
The minutes of a regular or special meeting of any public
body shall be promptly prepared, filed, and maintained and shall
be open to public inspection. The minutes need only reflect the
general subject matter of discussions in executive sessions
authorized under division (G) or (J) of this section.
(D) This section does not apply to any of the following:
(2) An audit conference conducted by the auditor of state or
independent certified public accountants with officials of the
public office that is the subject of the audit;
(3) The adult parole authority when its hearings are
conducted at a correctional institution for the sole purpose of
interviewing inmates to determine parole or pardon;
(4) The organized crime investigations commission established
under section 177.01 of the Revised Code;
(5) Meetings of a child fatality review board established
under section 307.621 of the Revised Code and meetings conducted
pursuant to sections 5153.171 to 5153.173 of the Revised Code;
(6) The state medical board when determining whether to
suspend a certificate without a prior hearing pursuant to division
(G) of either section 4730.25 or 4731.22 of the Revised Code;
(7) The board of nursing when determining whether to suspend
a license or certificate without a prior hearing pursuant to
division (B) of section 4723.281 of the Revised Code;
(8) The state board of pharmacy when determining whether to
suspend a license without a prior hearing pursuant to division (D)
of section 4729.16 of the Revised Code;
(9) The state chiropractic board when determining whether to
suspend a license without a hearing pursuant to section 4734.37 of
the Revised Code.
(10) The executive committee of the emergency response
commission when determining whether to issue an enforcement order
or request that a civil action, civil penalty action, or criminal
action be brought to enforce Chapter 3750. of the Revised Code.
(E) The controlling board, the development financing advisory
council, the industrial technology and enterprise advisory
council, the tax credit authority, or the minority development
financing advisory board, when meeting to consider granting
assistance pursuant to Chapter 122. or 166. of the Revised Code,
in order to protect the interest of the applicant or the possible
investment of public funds, by unanimous vote of all board,
council, or authority members present, may close the meeting
during consideration of the following information confidentially
received by the authority, council, or board from the applicant:
(2) Specific business strategy;
(3) Production techniques and trade secrets;
(4) Financial projections;
(5) Personal financial statements of the applicant or members
of the applicant's immediate family, including, but not limited
to, tax records or other similar information not open to public
inspection.
The vote by the authority, council, or board to accept or
reject the application, as well as all proceedings of the
authority, council, or board not subject to this division, shall
be open to the public and governed by this section.
(F) Every public body, by rule, shall establish a reasonable
method whereby any person may determine the time and place of all
regularly scheduled meetings and the time, place, and purpose of
all special meetings. A public body shall not hold a special
meeting unless it gives at least twenty-four hours' advance notice
to the news media that have requested notification, except in the
event of an emergency requiring immediate official action. In the
event of an emergency, the member or members calling the meeting
shall notify the news media that have requested notification
immediately of the time, place, and purpose of the meeting.
The rule shall provide that any person, upon request and
payment of a reasonable fee, may obtain reasonable advance
notification of all meetings at which any specific type of public
business is to be discussed. Provisions for advance notification
may include, but are not limited to, mailing the agenda of
meetings to all subscribers on a mailing list or mailing notices
in self-addressed, stamped envelopes provided by the person.
(G) Except as provided in division (J) of this section, the
members of a public body may hold an executive session only after
a majority of a quorum of the public body determines, by a roll
call vote, to hold an executive session and only at a regular or
special meeting for the sole purpose of the consideration of any
of the following matters:
(1) To consider the appointment, employment, dismissal,
discipline, promotion, demotion, or compensation of a public
employee or official, or the investigation of charges or
complaints against a public employee, official, licensee, or
regulated individual, unless the public employee, official,
licensee, or regulated individual requests a public hearing.
Except as otherwise provided by law, no public body shall hold an
executive session for the discipline of an elected official for
conduct related to the performance of the elected official's
official duties or for the elected official's removal from office.
If a public body holds an executive session pursuant to division
(G)(1) of this section, the motion and vote to hold that executive
session shall state which one or more of the approved purposes
listed in division (G)(1) of this section are the purposes for
which the executive session is to be held, but need not include
the name of any person to be considered at the meeting.
(2) To consider the purchase of property for public purposes,
or for the sale of property at competitive bidding, if premature
disclosure of information would give an unfair competitive or
bargaining advantage to a person whose personal, private interest
is adverse to the general public interest. No member of a public
body shall use division (G)(2) of this section as a subterfuge for
providing covert information to prospective buyers or sellers. A
purchase or sale of public property is void if the seller or buyer
of the public property has received covert information from a
member of a public body that has not been disclosed to the general
public in sufficient time for other prospective buyers and sellers
to prepare and submit offers.
If the minutes of the public body show that all meetings and
deliberations of the public body have been conducted in compliance
with this section, any instrument executed by the public body
purporting to convey, lease, or otherwise dispose of any right,
title, or interest in any public property shall be conclusively
presumed to have been executed in compliance with this section
insofar as title or other interest of any bona fide purchasers,
lessees, or transferees of the property is concerned.
(3) Conferences with an attorney for the public body
concerning disputes involving the public body that are the subject
of pending or imminent court action;
(4) Preparing for, conducting, or reviewing negotiations or
bargaining sessions with public employees concerning their
compensation or other terms and conditions of their employment;
(5) Matters required to be kept confidential by federal law
or regulations or state statutes;
(6) Details relative to the security arrangements and
emergency response protocols for a public body or a public office,
if disclosure of the matters discussed could reasonably be
expected to jeopardize the security of the public body or public
office;
(7) In the case of a county hospital operated pursuant to
Chapter 339. of the Revised Code, a joint township hospital
operated pursuant to Chapter 513. of the Revised Code, or a
municipal hospital operated pursuant to Chapter 749. of the
Revised Code, to consider trade secrets, as defined in section
1333.61 of the Revised Code.
If a public body holds an executive session to consider any
of the matters listed in divisions (G)(2) to (7) of this section,
the motion and vote to hold that executive session shall state
which one or more of the approved matters listed in those
divisions are to be considered at the executive session.
A public body specified in division (B)(1)(c) of this section
shall not hold an executive session when meeting for the purposes
specified in that division.
(H) A resolution, rule, or formal action of any kind is
invalid unless adopted in an open meeting of the public body. A
resolution, rule, or formal action adopted in an open meeting that
results from deliberations in a meeting not open to the public is
invalid unless the deliberations were for a purpose specifically
authorized in division (G) or (J) of this section and conducted at
an executive session held in compliance with this section. A
resolution, rule, or formal action adopted in an open meeting is
invalid if the public body that adopted the resolution, rule, or
formal action violated division (F) of this section.
(I)(1) Any person may bring an action to enforce this
section. An action under division (I)(1) of this section shall be
brought within two years after the date of the alleged violation
or threatened violation. Upon proof of a violation or threatened
violation of this section in an action brought by any person, the
court of common pleas shall issue an injunction to compel the
members of the public body to comply with its provisions.
(2)(a) If the court of common pleas issues an injunction
pursuant to division (I)(1) of this section, the court shall order
the public body that it enjoins to pay a civil forfeiture of five
hundred dollars to the party that sought the injunction and shall
award to that party all court costs and, subject to reduction as
described in division (I)(2) of this section, reasonable
attorney's fees. The court, in its discretion, may reduce an award
of attorney's fees to the party that sought the injunction or not
award attorney's fees to that party if the court determines both
of the following:
(i) That, based on the ordinary application of statutory law
and case law as it existed at the time of violation or threatened
violation that was the basis of the injunction, a well-informed
public body reasonably would believe that the public body was not
violating or threatening to violate this section;
(ii) That a well-informed public body reasonably would
believe that the conduct or threatened conduct that was the basis
of the injunction would serve the public policy that underlies the
authority that is asserted as permitting that conduct or
threatened conduct.
(b) If the court of common pleas does not issue an injunction
pursuant to division (I)(1) of this section and the court
determines at that time that the bringing of the action was
frivolous conduct, as defined in division (A) of section 2323.51
of the Revised Code, the court shall award to the public body all
court costs and reasonable attorney's fees, as determined by the
court.
(3) Irreparable harm and prejudice to the party that sought
the injunction shall be conclusively and irrebuttably presumed
upon proof of a violation or threatened violation of this section.
(4) A member of a public body who knowingly violates an
injunction issued pursuant to division (I)(1) of this section may
be removed from office by an action brought in the court of common
pleas for that purpose by the prosecuting attorney or the attorney
general.
(J)(1) Pursuant to division (C) of section 5901.09 of the
Revised Code, a veterans service commission shall hold an
executive session for one or more of the following purposes unless
an applicant requests a public hearing:
(a) Interviewing an applicant for financial assistance under
sections 5901.01 to 5901.15 of the Revised Code;
(b) Discussing applications, statements, and other documents
described in division (B) of section 5901.09 of the Revised Code;
(c) Reviewing matters relating to an applicant's request for
financial assistance under sections 5901.01 to 5901.15 of the
Revised Code.
(2) A veterans service commission shall not exclude an
applicant for, recipient of, or former recipient of financial
assistance under sections 5901.01 to 5901.15 of the Revised Code,
and shall not exclude representatives selected by the applicant,
recipient, or former recipient, from a meeting that the commission
conducts as an executive session that pertains to the applicant's,
recipient's, or former recipient's application for financial
assistance.
(3) A veterans service commission shall vote on the grant or
denial of financial assistance under sections 5901.01 to 5901.15
of the Revised Code only in an open meeting of the commission. The
minutes of the meeting shall indicate the name, address, and
occupation of the applicant, whether the assistance was granted or
denied, the amount of the assistance if assistance is granted, and
the votes for and against the granting of assistance.
(K) The meetings of the governing board of a corporation or
other person that enters into a public-private partnership, as
defined in division (G) of section 149.43 of the Revised Code, are
public meetings subject to the requirements of this section,
notwithstanding any other law to the contrary that may
specifically apply to such a governing board.
Sec. 149.43. (A) As used in this section:
(1) "Public record" means records kept by any public office,
including, but not limited to, state, county, city, village,
township, and school district units, and records pertaining to the
delivery of educational services by an alternative school in this
state kept by the nonprofit or for-profit entity operating the
alternative school pursuant to section 3313.533 of the Revised
Code. "Public record" does not mean any of the following:
(b) Records pertaining to probation and parole proceedings or
to proceedings related to the imposition of community control
sanctions and post-release control sanctions;
(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
job and family services or, pursuant to section 3111.69 of the
Revised Code, the office 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 2710.03 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 job and family
services pursuant to section 3121.894 of the Revised Code;
(p) Peace officer, parole officer, prosecuting attorney,
assistant prosecuting attorney, correctional employee, youth
services employee, firefighter, EMT, or investigator of the bureau
of criminal identification and investigation residential and
familial information;
(q) In the case of a county hospital operated pursuant to
Chapter 339. of the Revised Code or a municipal hospital operated
pursuant to Chapter 749. of the Revised Code, information that
constitutes a trade secret, as defined in section 1333.61 of the
Revised Code;
(r) Information pertaining to the recreational activities of
a person under the age of eighteen;
(s) Records provided to, statements made by review board
members during meetings of, and all work products of a child
fatality review board acting under sections 307.621 to 307.629 of
the Revised Code, and child fatality review data submitted by the
child fatality review board to the department of health or a
national child death review database, other than the report
prepared pursuant to division (A) of section 307.626 of the
Revised Code;
(t) Records provided to and statements made by the executive
director of a public children services agency or a prosecuting
attorney acting pursuant to section 5153.171 of the Revised Code
other than the information released under that section;
(u) Test materials, examinations, or evaluation tools used in
an examination for licensure as a nursing home administrator that
the board of examiners of nursing home administrators administers
under section 4751.04 of the Revised Code or contracts under that
section with a private or government entity to administer;
(v) Records the release of which is prohibited by state or
federal law;
(w) Proprietary information of or relating to any person that
is submitted to or compiled by the Ohio venture capital authority
created under section 150.01 of the Revised Code;
(x) Information reported and evaluations conducted pursuant
to section 3701.072 of the Revised Code;
(y) Financial statements and data any person submits for any
purpose to the Ohio housing finance agency or the controlling
board in connection with applying for, receiving, or accounting
for financial assistance from the agency, and information that
identifies any individual who benefits directly or indirectly from
financial assistance from the agency;
(z) Records listed in section 5101.29 of the Revised Code.
(aa) Discharges recorded with a county recorder under section
317.24 of the Revised Code, as specified in division (B)(2) of
that section.
(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.
(7) "Peace officer, parole officer, prosecuting attorney,
assistant prosecuting attorney, correctional employee, youth
services employee, firefighter, EMT, or investigator of the bureau
of criminal identification and investigation residential and
familial information" means any information that discloses any of
the following about a peace officer, parole officer, prosecuting
attorney, assistant prosecuting attorney, correctional employee,
youth services employee, firefighter, EMT, or investigator of the
bureau of criminal identification and investigation:
(a) The address of the actual personal residence of a peace
officer, parole officer, assistant prosecuting attorney,
correctional employee, youth services employee, firefighter, EMT,
or an investigator of the bureau of criminal identification and
investigation, except for the state or political subdivision in
which the peace officer, parole officer, assistant prosecuting
attorney, correctional employee, youth services employee,
firefighter, EMT, or investigator of the bureau of criminal
identification and investigation resides;
(b) Information compiled from referral to or participation in
an employee assistance program;
(c) The social security number, the residential telephone
number, any bank account, debit card, charge card, or credit card
number, or the emergency telephone number of, or any medical
information pertaining to, a peace officer, parole officer,
prosecuting attorney, assistant prosecuting attorney, correctional
employee, youth services employee, firefighter, EMT, or
investigator of the bureau of criminal identification and
investigation;
(d) The name of any beneficiary of employment benefits,
including, but not limited to, life insurance benefits, provided
to a peace officer, parole officer, prosecuting attorney,
assistant prosecuting attorney, correctional employee, youth
services employee, firefighter, EMT, or investigator of the bureau
of criminal identification and investigation by the peace
officer's, parole officer's, prosecuting attorney's, assistant
prosecuting attorney's, correctional employee's, youth services
employee's, firefighter's, EMT's, or investigator of the bureau of
criminal identification and investigation's employer;
(e) The identity and amount of any charitable or employment
benefit deduction made by the peace officer's, parole officer's,
prosecuting attorney's, assistant prosecuting attorney's,
correctional employee's, youth services employee's, firefighter's,
EMT's, or investigator of the bureau of criminal identification
and investigation's employer from the peace officer's, parole
officer's, prosecuting attorney's, assistant prosecuting
attorney's, correctional employee's, youth services employee's,
firefighter's, EMT's, or investigator of the bureau of criminal
identification and investigation's compensation unless the amount
of the deduction is required by state or federal law;
(f) The name, the residential address, the name of the
employer, the address of the employer, the social security number,
the residential telephone number, any bank account, debit card,
charge card, or credit card number, or the emergency telephone
number of the spouse, a former spouse, or any child of a peace
officer, parole officer, prosecuting attorney, assistant
prosecuting attorney, correctional employee, youth services
employee, firefighter, EMT, or investigator of the bureau of
criminal identification and investigation;
(g) A photograph of a peace officer who holds a position or
has an assignment that may include undercover or plain clothes
positions or assignments as determined by the peace officer's
appointing authority.
As used in divisions (A)(7) and (B)(9) of this section,
"peace officer" has the same meaning as in section 109.71 of the
Revised Code and also includes the superintendent and troopers of
the state highway patrol; it does not include the sheriff of a
county or a supervisory employee who, in the absence of the
sheriff, is authorized to stand in for, exercise the authority of,
and perform the duties of the sheriff.
As used in divisions (A)(7) and (B)(5) of this section,
"correctional employee" means any employee of the department of
rehabilitation and correction who in the course of performing the
employee's job duties has or has had contact with inmates and
persons under supervision.
As used in divisions (A)(7) and (B)(5) of this section,
"youth services employee" means any employee of the department of
youth services who in the course of performing the employee's job
duties has or has had contact with children committed to the
custody of the department of youth services.
As used in divisions (A)(7) and (B)(9) of this section,
"firefighter" means any regular, paid or volunteer, member of a
lawfully constituted fire department of a municipal corporation,
township, fire district, or village.
As used in divisions (A)(7) and (B)(9) of this section, "EMT"
means EMTs-basic, EMTs-I, and paramedics that provide emergency
medical services for a public emergency medical service
organization. "Emergency medical service organization,"
"EMT-basic," "EMT-I," and "paramedic" have the same meanings as in
section 4765.01 of the Revised Code.
As used in divisions (A)(7) and (B)(9) of this section,
"investigator of the bureau of criminal identification and
investigation" has the meaning defined in section 2903.11 of the
Revised Code.
(8) "Information pertaining to the recreational activities of
a person under the age of eighteen" means information that is kept
in the ordinary course of business by a public office, that
pertains to the recreational activities of a person under the age
of eighteen years, and that discloses any of the following:
(a) The address or telephone number of a person under the age
of eighteen or the address or telephone number of that person's
parent, guardian, custodian, or emergency contact person;
(b) The social security number, birth date, or photographic
image of a person under the age of eighteen;
(c) Any medical record, history, or information pertaining to
a person under the age of eighteen;
(d) Any additional information sought or required about a
person under the age of eighteen for the purpose of allowing that
person to participate in any recreational activity conducted or
sponsored by a public office or to use or obtain admission
privileges to any recreational facility owned or operated by a
public office.
(9) "Community control sanction" has the same meaning as in
section 2929.01 of the Revised Code.
(10) "Post-release control sanction" has the same meaning as
in section 2967.01 of the Revised Code.
(11) "Redaction" means obscuring or deleting any information
that is exempt from the duty to permit public inspection or
copying from an item that otherwise meets the definition of a
"record" in section 149.011 of the Revised Code.
(12) "Designee" and "elected official" have the same meanings
as in section 109.43 of the Revised Code.
(B)(1) Upon request and subject to division (B)(8) of this
section, all public records responsive to the request shall be
promptly prepared and made available for inspection to any person
at all reasonable times during regular business hours. Subject to
division (B)(8) of this section, upon request, a public office or
person responsible for public records shall make copies of the
requested public record available at cost and within a reasonable
period of time. If a public record contains information that is
exempt from the duty to permit public inspection or to copy the
public record, the public office or the person responsible for the
public record shall make available all of the information within
the public record that is not exempt. When making that public
record available for public inspection or copying that public
record, the public office or the person responsible for the public
record shall notify the requester of any redaction or make the
redaction plainly visible. A redaction shall be deemed a denial of
a request to inspect or copy the redacted information, except if
federal or state law authorizes or requires a public office to
make the redaction.
(2) To facilitate broader access to public records, a public
office or the person responsible for public records shall organize
and maintain public records in a manner that they can be made
available for inspection or copying in accordance with division
(B) of this section. A public office also shall have available a
copy of its current records retention schedule at a location
readily available to the public. If a requester makes an ambiguous
or overly broad request or has difficulty in making a request for
copies or inspection of public records under this section such
that the public office or the person responsible for the requested
public record cannot reasonably identify what public records are
being requested, the public office or the person responsible for
the requested public record may deny the request but shall provide
the requester with an opportunity to revise the request by
informing the requester of the manner in which records are
maintained by the public office and accessed in the ordinary
course of the public office's or person's duties.
(3) If a request is ultimately denied, in part or in whole,
the public office or the person responsible for the requested
public record shall provide the requester with an explanation,
including legal authority, setting forth why the request was
denied. If the initial request was provided in writing, the
explanation also shall be provided to the requester in writing.
The explanation shall not preclude the public office or the person
responsible for the requested public record from relying upon
additional reasons or legal authority in defending an action
commenced under division (C) of this section.
(4) Unless specifically required or authorized by state or
federal law or in accordance with division (B) of this section, no
public office or person responsible for public records may limit
or condition the availability of public records by requiring
disclosure of the requester's identity or the intended use of the
requested public record. Any requirement that the requester
disclose the requestor's identity or the intended use of the
requested public record constitutes a denial of the request.
(5) A public office or person responsible for public records
may ask a requester to make the request in writing, may ask for
the requester's identity, and may inquire about the intended use
of the information requested, but may do so only after disclosing
to the requester that a written request is not mandatory and that
the requester may decline to reveal the requester's identity or
the intended use and when a written request or disclosure of the
identity or intended use would benefit the requester by enhancing
the ability of the public office or person responsible for public
records to identify, locate, or deliver the public records sought
by the requester.
(6) If any person chooses to obtain a copy of a public record
in accordance with division (B) of this section, the public office
or person responsible for the public record may require that
person to pay in advance the cost involved in providing the copy
of the public record in accordance with the choice made by the
person seeking the copy under this division. The public office or
the 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. Nothing in this section requires a public office or person
responsible for the public record to allow the person seeking a
copy of the public record to make the copies of the public record.
(7) Upon a request made in accordance with division (B) of
this section and subject to division (B)(6) of this section, a
public office or person responsible for public records shall
transmit a copy of a public record to any person by United States
mail or by any other means of delivery or transmission within a
reasonable period of time after receiving the 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 if the copy is transmitted by United States
mail or the cost of delivery if the copy is transmitted other than
by United States mail, and to pay in advance the costs incurred
for other supplies used in the mailing, delivery, or transmission.
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 or by any other means of delivery or transmission
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.
In any policy and procedures adopted under this division, a
public office may limit the number of records requested by a
person that the office will transmit by United States mail to ten
per month, unless the person certifies to the office in writing
that the person does not intend to use or forward the requested
records, or the information contained in them, for commercial
purposes. For purposes of this division, "commercial" 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.
(8) A public office or person responsible for public records
is not required to permit a person who is incarcerated pursuant to
a criminal conviction or a juvenile adjudication to inspect or to
obtain a copy of any public record concerning a criminal
investigation or prosecution or concerning what would be a
criminal investigation or prosecution if the subject of the
investigation or prosecution were an adult, unless the request to
inspect or to obtain a copy of the record is for the purpose of
acquiring information that is subject to release as a public
record under this section and the judge who imposed the sentence
or made the adjudication with respect to the person, or the
judge's successor in office, finds that the information sought in
the public record is necessary to support what appears to be a
justiciable claim of the person.
(9) Upon written request made and signed by a journalist on
or after December 16, 1999, a public office, or person responsible
for public records, having custody of the records of the agency
employing a specified peace officer, parole officer, prosecuting
attorney, assistant prosecuting attorney, correctional employee,
youth services employee, firefighter, EMT, or investigator of the
bureau of criminal identification and investigation shall disclose
to the journalist the address of the actual personal residence of
the peace officer, parole officer, prosecuting attorney, assistant
prosecuting attorney, correctional employee, youth services
employee, firefighter, EMT, or investigator of the bureau of
criminal identification and investigation and, if the peace
officer's, parole officer's, prosecuting attorney's, assistant
prosecuting attorney's, correctional employee's, youth services
employee's, firefighter's, EMT's, or investigator of the bureau of
criminal identification and investigation's spouse, former spouse,
or child is employed by a public office, the name and address of
the employer of the peace officer's, parole officer's, prosecuting
attorney's, assistant prosecuting attorney's, correctional
employee's, youth services employee's, firefighter's, EMT's, or
investigator of the bureau of criminal identification and
investigation's spouse, former spouse, or child. The request shall
include the journalist's name and title and the name and address
of the journalist's employer and shall state that disclosure of
the information sought would be in the public interest.
As used in this division, "journalist" means a person engaged
in, connected with, or employed by any news medium, including a
newspaper, magazine, press association, news agency, or wire
service, a radio or television station, or a similar medium, for
the purpose of gathering, processing, transmitting, compiling,
editing, or disseminating information for the general public.
(C)(1) If a person allegedly is aggrieved by the failure of a
public office or the person responsible for public records 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 by any other failure of a public office or the person
responsible for public records to comply with an obligation in
accordance with division (B) of this section, the person allegedly
aggrieved may commence a mandamus action to obtain a judgment that
orders the public office or the person responsible for the public
record to comply with division (B) of this section, that awards
court costs and reasonable attorney's fees to the person that
instituted the mandamus action, and, if applicable, that includes
an order fixing statutory damages under division (C)(1) of this
section. 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.
If a requestor transmits a written request by hand delivery
or certified mail to inspect or receive copies of any public
record in a manner that fairly describes the public record or
class of public records to the public office or person responsible
for the requested public records, except as otherwise provided in
this section, the requestor shall be entitled to recover the
amount of statutory damages set forth in this division if a court
determines that the public office or the person responsible for
public records failed to comply with an obligation in accordance
with division (B) of this section.
The amount of statutory damages shall be fixed at one hundred
dollars for each business day during which the public office or
person responsible for the requested public records failed to
comply with an obligation in accordance with division (B) of this
section, beginning with the day on which the requester files a
mandamus action to recover statutory damages, up to a maximum of
one thousand dollars. The award of statutory damages shall not be
construed as a penalty, but as compensation for injury arising
from lost use of the requested information. The existence of this
injury shall be conclusively presumed. The award of statutory
damages shall be in addition to all other remedies authorized by
this section.
The court may reduce an award of statutory damages or not
award statutory damages if the court determines both of the
following:
(a) That, based on the ordinary application of statutory law
and case law as it existed at the time of the conduct or
threatened conduct of the public office or person responsible for
the requested public records that allegedly constitutes a failure
to comply with an obligation in accordance with division (B) of
this section and that was the basis of the mandamus action, a
well-informed public office or person responsible for the
requested public records reasonably would believe that the conduct
or threatened conduct of the public office or person responsible
for the requested public records did not constitute a failure to
comply with an obligation in accordance with division (B) of this
section;
(b) That a well-informed public office or person responsible
for the requested public records reasonably would believe that the
conduct or threatened conduct of the public office or person
responsible for the requested public records would serve the
public policy that underlies the authority that is asserted as
permitting that conduct or threatened conduct.
(2)(a) If the court issues a writ of mandamus that orders the
public office or the person responsible for the public record to
comply with division (B) of this section and determines that the
circumstances described in division (C)(1) of this section exist,
the court shall determine and award to the relator all court
costs.
(b) If the court renders a judgment that orders the public
office or the person responsible for the public record to comply
with division (B) of this section, the court may award reasonable
attorney's fees subject to reduction as described in division
(C)(2)(c) of this section. The court shall award reasonable
attorney's fees, subject to reduction as described in division
(C)(2)(c) of this section when either of the following applies:
(i) The public office or the person responsible for the
public records failed to respond affirmatively or negatively to
the public records request in accordance with the time allowed
under division (B) of this section.
(ii) The public office or the person responsible for the
public records promised to permit the relator to inspect or
receive copies of the public records requested within a specified
period of time but failed to fulfill that promise within that
specified period of time.
(c) Court costs and reasonable attorney's fees awarded under
this section shall be construed as remedial and not punitive.
Reasonable attorney's fees shall include reasonable fees incurred
to produce proof of the reasonableness and amount of the fees and
to otherwise litigate entitlement to the fees. The court may
reduce an award of attorney's fees to the relator or not award
attorney's fees to the relator if the court determines both of the
following:
(i) That, based on the ordinary application of statutory law
and case law as it existed at the time of the conduct or
threatened conduct of the public office or person responsible for
the requested public records that allegedly constitutes a failure
to comply with an obligation in accordance with division (B) of
this section and that was the basis of the mandamus action, a
well-informed public office or person responsible for the
requested public records reasonably would believe that the conduct
or threatened conduct of the public office or person responsible
for the requested public records did not constitute a failure to
comply with an obligation in accordance with division (B) of this
section;
(ii) That a well-informed public office or person responsible
for the requested public records reasonably would believe that the
conduct or threatened conduct of the public office or person
responsible for the requested public records as described in
division (C)(2)(c)(i) of this section would serve the public
policy that underlies the authority that is asserted as permitting
that conduct or threatened conduct.
(D) Chapter 1347. of the Revised Code does not limit the
provisions of this section.
(E)(1) To ensure that all employees of public offices are
appropriately educated about a public office's obligations under
division (B) of this section, all elected officials or their
appropriate designees shall attend training approved by the
attorney general as provided in section 109.43 of the Revised
Code. In addition, all public offices shall adopt a public records
policy in compliance with this section for responding to public
records requests. In adopting a public records policy under this
division, a public office may obtain guidance from the model
public records policy developed and provided to the public office
by the attorney general under section 109.43 of the Revised Code.
Except as otherwise provided in this section, the policy may not
limit the number of public records that the public office will
make available to a single person, may not limit the number of
public records that it will make available during a fixed period
of time, and may not establish a fixed period of time before it
will respond to a request for inspection or copying of public
records, unless that period is less than eight hours.
(2) The public office shall distribute the public records
policy adopted by the public office under division (E)(1) of this
section to the employee of the public office who is the records
custodian or records manager or otherwise has custody of the
records of that office. The public office shall require that
employee to acknowledge receipt of the copy of the public records
policy. The public office shall create a poster that describes its
public records policy and shall post the poster in a conspicuous
place in the public office and in all locations where the public
office has branch offices. The public office may post its public
records policy on the internet web site of the public office if
the public office maintains an internet web site. A public office
that has established a manual or handbook of its general policies
and procedures for all employees of the public office shall
include the public records policy of the public office in the
manual or handbook.
(F)(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 (F)(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 (F)(1) and (2) of this section,
"surveys, marketing, solicitation, or resale for commercial
purposes" 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.
(G) Records of a corporation or other person that enters into
a public-private partnership shall be public records for the
purposes of this section, notwithstanding any other law to the
contrary that may specifically apply to such a corporation or
person. For the purpose of this division, "public-private
partnership" means a contractual relationship between a state
agency and a corporation or other person for the purpose of the
corporation or person assisting the agency in the exercise of any
or all of the powers, functions, or duties of the agency,
including the operation and management of the agency's programs,
offices, divisions, or boards.
Section 2. That existing sections 121.22 and 149.43 of the
Revised Code are hereby repealed.
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