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Sub. H. B. No. 663 As Enrolled
(130th General Assembly)
(Substitute House Bill Number 663)
AN ACT
To amend sections 120.33, 149.43, 2317.02, 2941.51,
2945.10, and 2953.21 and to enact sections
2949.221 and 2949.222 of the Revised Code to
provide confidentiality and license protection for
persons and entities involved in executing a
sentence of capital punishment by lethal
injection, to provide for a schedule of fees to be
paid to appointed counsel in a capital case as set
by the Supreme Court, to provide that the attorney
client privilege does not apply if the case is a
capital case and the client subsequently claims
ineffective assistance of counsel regarding the
case, to provide for written jury instructions in
capital cases, to provide for a joint legislative
study committee to study the manner in which
families of homicide victims can best be
supported, to extend to 365 days the time for
filing a postconviction relief petition, and to
amend the version of section 149.43 of the Revised
Code that is scheduled to take effect on March 20,
2015, to continue the provisions of this act on
and after that date.
Be it enacted by the General Assembly of the State of Ohio:
SECTION 1. That sections 120.33, 149.43, 2317.02, 2941.51,
2945.10, and 2953.21 be amended and sections 2949.221 and
2949.222 of the Revised Code be enacted to read as follows:
Sec. 120.33. (A) In lieu of using a county public defender
or joint county public defender to represent indigent persons in
the proceedings set forth in division (A) of section 120.16 of the
Revised Code, the board of county commissioners of any county may
adopt a resolution to pay counsel who are either personally
selected by the indigent person or appointed by the court. The
resolution shall include those provisions the board of county
commissioners considers necessary to provide effective
representation of indigent persons in any proceeding for which
counsel is provided under this section. The resolution shall
include provisions for contracts with any municipal corporation
under which the municipal corporation shall reimburse the county
for counsel appointed to represent indigent persons charged with
violations of the ordinances of the municipal corporation.
(1) In a county that adopts a resolution to pay counsel, an
indigent person shall have the right to do either of the
following:
(a) To select the person's own personal counsel to represent
the person in any proceeding included within the provisions of the
resolution;
(b) To request the court to appoint counsel to represent the
person in such a proceeding.
(2) The court having jurisdiction over the proceeding in a
county that adopts a resolution to pay counsel shall, after
determining that the person is indigent and entitled to legal
representation under this section, do either of the following:
(a) By signed journal entry recorded on its docket, enter the
name of the lawyer selected by the indigent person as counsel of
record;
(b) Appoint counsel for the indigent person if the person has
requested the court to appoint counsel and, by signed journal
entry recorded on its dockets, enter the name of the lawyer
appointed for the indigent person as counsel of record.
(3) The board of county commissioners shall establish a
schedule of fees by case or on an hourly basis to be paid to
counsel for legal services provided pursuant to a resolution
adopted under this section. Prior to establishing the schedule,
the board of county commissioners shall request the bar
association or associations of the county to submit a proposed
schedule for cases other than capital cases. The schedule
submitted shall be subject to the review, amendment, and approval
of the board of county commissioners, except with respect to
capital cases. With respect to capital cases, the schedule shall
provide for fees by case or on an hourly basis to be paid to
counsel in the amount or at the rate set by the supreme court
pursuant to division (D) of this section, and the board of county
commissioners shall approve that amount or rate.
(4) Counsel selected by the indigent person or appointed by
the court at the request of an indigent person in a county that
adopts a resolution to pay counsel, except for counsel appointed
to represent a person charged with any violation of an ordinance
of a municipal corporation that has not contracted with the county
commissioners for the payment of appointed counsel, shall be paid
by the county and shall receive the compensation and expenses the
court approves. With respect to capital cases, the court shall
approve compensation and expenses in accordance with the amount or
at the rate set by the supreme court pursuant to division (D) of
this section. Each request for payment shall be accompanied by a
financial disclosure form and an affidavit of indigency that are
completed by the indigent person on forms prescribed by the state
public defender. Compensation and expenses shall not exceed the
amounts fixed by the board of county commissioners in the schedule
adopted pursuant to division (A)(3) of this section. No court
shall approve compensation and expenses that exceed the amount
fixed pursuant to division (A)(3) of this section.
The fees and expenses approved by the court shall not be
taxed as part of the costs and shall be paid by the county.
However, if the person represented has, or may reasonably be
expected to have, the means to meet some part of the cost of the
services rendered to the person, the person shall pay the county
an amount that the person reasonably can be expected to pay.
Pursuant to section 120.04 of the Revised Code, the county shall
pay to the state public defender a percentage of the payment
received from the person in an amount proportionate to the
percentage of the costs of the person's case that were paid to the
county by the state public defender pursuant to this section. The
money paid to the state public defender shall be credited to the
client payment fund created pursuant to division (B)(5) of section
120.04 of the Revised Code.
The county auditor shall draw a warrant on the county
treasurer for the payment of counsel in the amount fixed by the
court, plus the expenses the court fixes and certifies to the
auditor. The county auditor shall report periodically, but not
less than annually, to the board of county commissioners and to
the state public defender the amounts paid out pursuant to the
approval of the court. The board of county commissioners, after
review and approval of the auditor's report, or the county
auditor, with permission from and notice to the board of county
commissioners, may then certify it to the state public defender
for reimbursement. The state public defender may pay a requested
reimbursement only if the request for reimbursement is accompanied
by a financial disclosure form and an affidavit of indigency
completed by the indigent person on forms prescribed by the state
public defender or if the court certifies by electronic signature
as prescribed by the state public defender that a financial
disclosure form and affidavit of indigency have been completed by
the indigent person and are available for inspection. If a request
for the reimbursement of the cost of counsel in any case is not
received by the state public defender within ninety days after the
end of the calendar month in which the case is finally disposed of
by the court, unless the county has requested and the state public
defender has granted an extension of the ninety-day limit, the
state public defender shall not pay the requested reimbursement.
The state public defender shall also review the report and, in
accordance with the standards, guidelines, and maximums
established pursuant to divisions (B)(7) and (8) of section 120.04
of the Revised Code, prepare a voucher for fifty per cent of the
total cost of each county appointed counsel system in the period
of time covered by the certified report and a voucher for fifty
per cent of the costs and expenses that are reimbursable under
section 120.35 of the Revised Code, if any, or, if the amount of
money appropriated by the general assembly to reimburse counties
for the operation of county public defender offices, joint county
public defender offices, and county appointed counsel systems is
not sufficient to pay fifty per cent of the total cost of all of
the offices and systems other than costs and expenses that are
reimbursable under section 120.35 of the Revised Code, for the
lesser amount required by section 120.34 of the Revised Code.
(5) If any county appointed counsel system fails to maintain
the standards for the conduct of the system established by the
rules of the Ohio public defender commission pursuant to divisions
(B) and (C) of section 120.03 or the standards established by the
state public defender pursuant to division (B)(7) of section
120.04 of the Revised Code, the Ohio public defender commission
shall notify the board of county commissioners of the county that
the county appointed counsel system has failed to comply with its
rules or the standards of the state public defender. Unless the
board of county commissioners corrects the conduct of its
appointed counsel system to comply with the rules and standards
within ninety days after the date of the notice, the state public
defender may deny all or part of the county's reimbursement from
the state provided for in division (A)(4) of this section.
(B) In lieu of using a county public defender or joint county
public defender to represent indigent persons in the proceedings
set forth in division (A) of section 120.16 of the Revised Code,
and in lieu of adopting the resolution and following the procedure
described in division (A) of this section, the board of county
commissioners of any county may contract with the state public
defender for the state public defender's legal representation of
indigent persons. A contract entered into pursuant to this
division may provide for payment for the services provided on a
per case, hourly, or fixed contract basis.
(C) If a court appoints an attorney pursuant to this section
to represent a petitioner in a postconviction relief proceeding
under section 2953.21 of the Revised Code, the petitioner has
received a sentence of death, and the proceeding relates to that
sentence, the attorney who represents the petitioner in the
proceeding pursuant to the appointment shall be certified under
Rule 20 of the Rules of Superintendence for the Courts of Ohio to
represent indigent defendants charged with or convicted of an
offense for which the death penalty can be or has been imposed.
(D) The supreme court shall set an amount by case, or a rate
on an hourly basis, to be paid under this section to counsel in a
capital case.
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:
(a) Medical records;
(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, probation officer,
bailiff, prosecuting attorney, assistant prosecuting attorney,
correctional employee, community-based correctional facility
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 executives of long-term services and supports
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) 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;
(y) Records listed in section 5101.29 of the Revised Code;
(z) Discharges recorded with a county recorder under section
317.24 of the Revised Code, as specified in division (B)(2) of
that section;
(aa) Usage information including names and addresses of
specific residential and commercial customers of a municipally
owned or operated public utility;
(bb) Records described in division (C) of section 187.04 of
the Revised Code that are not designated to be made available to
the public as provided in that division;
(cc) Information and records that are made confidential,
privileged, and not subject to disclosure under divisions (B) and
(C) of section 2949.221 of the Revised Code.
(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, probation officer,
bailiff, prosecuting attorney, assistant prosecuting attorney,
correctional employee, community-based correctional facility
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, probation officer, bailiff, prosecuting
attorney, assistant prosecuting attorney, correctional employee,
community-based correctional facility 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, probation officer, bailiff, assistant
prosecuting attorney, correctional employee, community-based
correctional facility 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,
probation officer, bailiff, assistant prosecuting attorney,
correctional employee, community-based correctional facility
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,
probation officer, bailiff, prosecuting attorney, assistant
prosecuting attorney, correctional employee, community-based
correctional facility 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, probation officer, bailiff,
prosecuting attorney, assistant prosecuting attorney, correctional
employee, community-based correctional facility employee, youth
services employee, firefighter, EMT, or investigator of the bureau
of criminal identification and investigation by the peace
officer's, parole officer's, probation officer's, bailiff's,
prosecuting attorney's, assistant prosecuting attorney's,
correctional employee's, community-based correctional facility
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,
probation officer's, bailiff's, prosecuting attorney's, assistant
prosecuting attorney's, correctional employee's, community-based
correctional facility 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, probation officer's, bailiff's,
prosecuting attorney's, assistant prosecuting attorney's,
correctional employee's, community-based correctional facility
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, probation officer, bailiff, prosecuting
attorney, assistant prosecuting attorney, correctional employee,
community-based correctional facility 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)(9) 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)(9) 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)(a) 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,
probation officer, bailiff, prosecuting attorney, assistant
prosecuting attorney, correctional employee, community-based
correctional facility 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, probation officer, bailiff, prosecuting attorney,
assistant prosecuting attorney, correctional employee,
community-based correctional facility 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, probation officer's, bailiff's,
prosecuting attorney's, assistant prosecuting attorney's,
correctional employee's, community-based correctional facility
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, probation officer's, bailiff's,
prosecuting attorney's, assistant prosecuting attorney's,
correctional employee's, community-based correctional facility
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.
(b) Division (B)(9)(a) of this section also applies to
journalist requests for customer information maintained by a
municipally owned or operated public utility, other than social
security numbers and any private financial information such as
credit reports, payment methods, credit card numbers, and bank
account information.
(c) As used in division (B)(9) of this section, "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 database 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.
Sec. 2317.02. The following persons shall not testify in
certain respects:
(A)(1) An attorney, concerning a communication made to the
attorney by a client in that relation or concerning the attorney's
advice to a client, except that the attorney may testify by
express consent of the client or, if the client is deceased, by
the express consent of the surviving spouse or the executor or
administrator of the estate of the deceased client. However, if
the client voluntarily reveals the substance of attorney-client
communications in a nonprivileged context or is deemed by section
2151.421 of the Revised Code to have waived any testimonial
privilege under this division, the attorney may be compelled to
testify on the same subject.
The testimonial privilege established under this division
does not apply concerning a either of the following:
(a) A communication between a client in a capital case, as
defined in section 2901.02 of the Revised Code, and the client's
attorney if the communication is relevant to a subsequent
ineffective assistance of counsel claim by the client alleging
that the attorney did not effectively represent the client in the
case;
(b) A communication between a client who has since died and
the deceased client's attorney if the communication is relevant to
a dispute between parties who claim through that deceased client,
regardless of whether the claims are by testate or intestate
succession or by inter vivos transaction, and the dispute
addresses the competency of the deceased client when the deceased
client executed a document that is the basis of the dispute or
whether the deceased client was a victim of fraud, undue
influence, or duress when the deceased client executed a document
that is the basis of the dispute.
(2) An attorney, concerning a communication made to the
attorney by a client in that relationship or the attorney's advice
to a client, except that if the client is an insurance company,
the attorney may be compelled to testify, subject to an in camera
inspection by a court, about communications made by the client to
the attorney or by the attorney to the client that are related to
the attorney's aiding or furthering an ongoing or future
commission of bad faith by the client, if the party seeking
disclosure of the communications has made a prima-facie showing of
bad faith, fraud, or criminal misconduct by the client.
(B)(1) A physician or a dentist concerning a communication
made to the physician or dentist by a patient in that relation or
the physician's or dentist's advice to a patient, except as
otherwise provided in this division, division (B)(2), and division
(B)(3) of this section, and except that, if the patient is deemed
by section 2151.421 of the Revised Code to have waived any
testimonial privilege under this division, the physician may be
compelled to testify on the same subject.
The testimonial privilege established under this division
does not apply, and a physician or dentist may testify or may be
compelled to testify, in any of the following circumstances:
(a) In any civil action, in accordance with the discovery
provisions of the Rules of Civil Procedure in connection with a
civil action, or in connection with a claim under Chapter 4123. of
the Revised Code, under any of the following circumstances:
(i) If the patient or the guardian or other legal
representative of the patient gives express consent;
(ii) If the patient is deceased, the spouse of the patient or
the executor or administrator of the patient's estate gives
express consent;
(iii) If a medical claim, dental claim, chiropractic claim,
or optometric claim, as defined in section 2305.113 of the Revised
Code, an action for wrongful death, any other type of civil
action, or a claim under Chapter 4123. of the Revised Code is
filed by the patient, the personal representative of the estate of
the patient if deceased, or the patient's guardian or other legal
representative.
(b) In any civil action concerning court-ordered treatment or
services received by a patient, if the court-ordered treatment or
services were ordered as part of a case plan journalized under
section 2151.412 of the Revised Code or the court-ordered
treatment or services are necessary or relevant to dependency,
neglect, or abuse or temporary or permanent custody proceedings
under Chapter 2151. of the Revised Code.
(c) In any criminal action concerning any test or the results
of any test that determines the presence or concentration of
alcohol, a drug of abuse, a combination of them, a controlled
substance, or a metabolite of a controlled substance in the
patient's whole blood, blood serum or plasma, breath, urine, or
other bodily substance at any time relevant to the criminal
offense in question.
(d) In any criminal action against a physician or dentist. In
such an action, the testimonial privilege established under this
division does not prohibit the admission into evidence, in
accordance with the Rules of Evidence, of a patient's medical or
dental records or other communications between a patient and the
physician or dentist that are related to the action and obtained
by subpoena, search warrant, or other lawful means. A court that
permits or compels a physician or dentist to testify in such an
action or permits the introduction into evidence of patient
records or other communications in such an action shall require
that appropriate measures be taken to ensure that the
confidentiality of any patient named or otherwise identified in
the records is maintained. Measures to ensure confidentiality that
may be taken by the court include sealing its records or deleting
specific information from its records.
(e)(i) If the communication was between a patient who has
since died and the deceased patient's physician or dentist, the
communication is relevant to a dispute between parties who claim
through that deceased patient, regardless of whether the claims
are by testate or intestate succession or by inter vivos
transaction, and the dispute addresses the competency of the
deceased patient when the deceased patient executed a document
that is the basis of the dispute or whether the deceased patient
was a victim of fraud, undue influence, or duress when the
deceased patient executed a document that is the basis of the
dispute.
(ii) If neither the spouse of a patient nor the executor or
administrator of that patient's estate gives consent under
division (B)(1)(a)(ii) of this section, testimony or the
disclosure of the patient's medical records by a physician,
dentist, or other health care provider under division (B)(1)(e)(i)
of this section is a permitted use or disclosure of protected
health information, as defined in 45 C.F.R. 160.103, and an
authorization or opportunity to be heard shall not be required.
(iii) Division (B)(1)(e)(i) of this section does not require
a mental health professional to disclose psychotherapy notes, as
defined in 45 C.F.R. 164.501.
(iv) An interested person who objects to testimony or
disclosure under division (B)(1)(e)(i) of this section may seek a
protective order pursuant to Civil Rule 26.
(v) A person to whom protected health information is
disclosed under division (B)(1)(e)(i) of this section shall not
use or disclose the protected health information for any purpose
other than the litigation or proceeding for which the information
was requested and shall return the protected health information to
the covered entity or destroy the protected health information,
including all copies made, at the conclusion of the litigation or
proceeding.
(2)(a) If any law enforcement officer submits a written
statement to a health care provider that states that an official
criminal investigation has begun regarding a specified person or
that a criminal action or proceeding has been commenced against a
specified person, that requests the provider to supply to the
officer copies of any records the provider possesses that pertain
to any test or the results of any test administered to the
specified person to determine the presence or concentration of
alcohol, a drug of abuse, a combination of them, a controlled
substance, or a metabolite of a controlled substance in the
person's whole blood, blood serum or plasma, breath, or urine at
any time relevant to the criminal offense in question, and that
conforms to section 2317.022 of the Revised Code, the provider,
except to the extent specifically prohibited by any law of this
state or of the United States, shall supply to the officer a copy
of any of the requested records the provider possesses. If the
health care provider does not possess any of the requested
records, the provider shall give the officer a written statement
that indicates that the provider does not possess any of the
requested records.
(b) If a health care provider possesses any records of the
type described in division (B)(2)(a) of this section regarding the
person in question at any time relevant to the criminal offense in
question, in lieu of personally testifying as to the results of
the test in question, the custodian of the records may submit a
certified copy of the records, and, upon its submission, the
certified copy is qualified as authentic evidence and may be
admitted as evidence in accordance with the Rules of Evidence.
Division (A) of section 2317.422 of the Revised Code does not
apply to any certified copy of records submitted in accordance
with this division. Nothing in this division shall be construed to
limit the right of any party to call as a witness the person who
administered the test to which the records pertain, the person
under whose supervision the test was administered, the custodian
of the records, the person who made the records, or the person
under whose supervision the records were made.
(3)(a) If the testimonial privilege described in division
(B)(1) of this section does not apply as provided in division
(B)(1)(a)(iii) of this section, a physician or dentist may be
compelled to testify or to submit to discovery under the Rules of
Civil Procedure only as to a communication made to the physician
or dentist by the patient in question in that relation, or the
physician's or dentist's advice to the patient in question, that
related causally or historically to physical or mental injuries
that are relevant to issues in the medical claim, dental claim,
chiropractic claim, or optometric claim, action for wrongful
death, other civil action, or claim under Chapter 4123. of the
Revised Code.
(b) If the testimonial privilege described in division (B)(1)
of this section does not apply to a physician or dentist as
provided in division (B)(1)(c) of this section, the physician or
dentist, in lieu of personally testifying as to the results of the
test in question, may submit a certified copy of those results,
and, upon its submission, the certified copy is qualified as
authentic evidence and may be admitted as evidence in accordance
with the Rules of Evidence. Division (A) of section 2317.422 of
the Revised Code does not apply to any certified copy of results
submitted in accordance with this division. Nothing in this
division shall be construed to limit the right of any party to
call as a witness the person who administered the test in
question, the person under whose supervision the test was
administered, the custodian of the results of the test, the person
who compiled the results, or the person under whose supervision
the results were compiled.
(4) The testimonial privilege described in division (B)(1) of
this section is not waived when a communication is made by a
physician to a pharmacist or when there is communication between a
patient and a pharmacist in furtherance of the physician-patient
relation.
(5)(a) As used in divisions (B)(1) to (4) of this section,
"communication" means acquiring, recording, or transmitting any
information, in any manner, concerning any facts, opinions, or
statements necessary to enable a physician or dentist to diagnose,
treat, prescribe, or act for a patient. A "communication" may
include, but is not limited to, any medical or dental, office, or
hospital communication such as a record, chart, letter,
memorandum, laboratory test and results, x-ray, photograph,
financial statement, diagnosis, or prognosis.
(b) As used in division (B)(2) of this section, "health care
provider" means a hospital, ambulatory care facility, long-term
care facility, pharmacy, emergency facility, or health care
practitioner.
(c) As used in division (B)(5)(b) of this section:
(i) "Ambulatory care facility" means a facility that provides
medical, diagnostic, or surgical treatment to patients who do not
require hospitalization, including a dialysis center, ambulatory
surgical facility, cardiac catheterization facility, diagnostic
imaging center, extracorporeal shock wave lithotripsy center, home
health agency, inpatient hospice, birthing center, radiation
therapy center, emergency facility, and an urgent care center.
"Ambulatory health care facility" does not include the private
office of a physician or dentist, whether the office is for an
individual or group practice.
(ii) "Emergency facility" means a hospital emergency
department or any other facility that provides emergency medical
services.
(iii) "Health care practitioner" has the same meaning as in
section 4769.01 of the Revised Code.
(iv) "Hospital" has the same meaning as in section 3727.01 of
the Revised Code.
(v) "Long-term care facility" means a nursing home,
residential care facility, or home for the aging, as those terms
are defined in section 3721.01 of the Revised Code; a residential
facility licensed under section 5119.34 of the Revised Code that
provides accommodations, supervision, and personal care services
for three to sixteen unrelated adults; a nursing facility, as
defined in section 5165.01 of the Revised Code; a skilled nursing
facility, as defined in section 5165.01 of the Revised Code; and
an intermediate care facility for individuals with intellectual
disabilities, as defined in section 5124.01 of the Revised Code.
(vi) "Pharmacy" has the same meaning as in section 4729.01 of
the Revised Code.
(d) As used in divisions (B)(1) and (2) of this section,
"drug of abuse" has the same meaning as in section 4506.01 of the
Revised Code.
(6) Divisions (B)(1), (2), (3), (4), and (5) of this section
apply to doctors of medicine, doctors of osteopathic medicine,
doctors of podiatry, and dentists.
(7) Nothing in divisions (B)(1) to (6) of this section
affects, or shall be construed as affecting, the immunity from
civil liability conferred by section 307.628 of the Revised Code
or the immunity from civil liability conferred by section 2305.33
of the Revised Code upon physicians who report an employee's use
of a drug of abuse, or a condition of an employee other than one
involving the use of a drug of abuse, to the employer of the
employee in accordance with division (B) of that section. As used
in division (B)(7) of this section, "employee," "employer," and
"physician" have the same meanings as in section 2305.33 of the
Revised Code.
(C)(1) A cleric, when the cleric remains accountable to the
authority of that cleric's church, denomination, or sect,
concerning a confession made, or any information confidentially
communicated, to the cleric for a religious counseling purpose in
the cleric's professional character. The cleric may testify by
express consent of the person making the communication, except
when the disclosure of the information is in violation of a sacred
trust and except that, if the person voluntarily testifies or is
deemed by division (A)(4)(c) of section 2151.421 of the Revised
Code to have waived any testimonial privilege under this division,
the cleric may be compelled to testify on the same subject except
when disclosure of the information is in violation of a sacred
trust.
(2) As used in division (C) of this section:
(a) "Cleric" means a member of the clergy, rabbi, priest,
Christian Science practitioner, or regularly ordained, accredited,
or licensed minister of an established and legally cognizable
church, denomination, or sect.
(b) "Sacred trust" means a confession or confidential
communication made to a cleric in the cleric's ecclesiastical
capacity in the course of discipline enjoined by the church to
which the cleric belongs, including, but not limited to, the
Catholic Church, if both of the following apply:
(i) The confession or confidential communication was made
directly to the cleric.
(ii) The confession or confidential communication was made in
the manner and context that places the cleric specifically and
strictly under a level of confidentiality that is considered
inviolate by canon law or church doctrine.
(D) Husband or wife, concerning any communication made by one
to the other, or an act done by either in the presence of the
other, during coverture, unless the communication was made, or act
done, in the known presence or hearing of a third person competent
to be a witness; and such rule is the same if the marital relation
has ceased to exist;
(E) A person who assigns a claim or interest, concerning any
matter in respect to which the person would not, if a party, be
permitted to testify;
(F) A person who, if a party, would be restricted under
section 2317.03 of the Revised Code, when the property or thing is
sold or transferred by an executor, administrator, guardian,
trustee, heir, devisee, or legatee, shall be restricted in the
same manner in any action or proceeding concerning the property or
thing.
(G)(1) A school guidance counselor who holds a valid educator
license from the state board of education as provided for in
section 3319.22 of the Revised Code, a person licensed under
Chapter 4757. of the Revised Code as a licensed professional
clinical counselor, licensed professional counselor, social
worker, independent social worker, marriage and family therapist
or independent marriage and family therapist, or registered under
Chapter 4757. of the Revised Code as a social work assistant
concerning a confidential communication received from a client in
that relation or the person's advice to a client unless any of the
following applies:
(a) The communication or advice indicates clear and present
danger to the client or other persons. For the purposes of this
division, cases in which there are indications of present or past
child abuse or neglect of the client constitute a clear and
present danger.
(b) The client gives express consent to the testimony.
(c) If the client is deceased, the surviving spouse or the
executor or administrator of the estate of the deceased client
gives express consent.
(d) The client voluntarily testifies, in which case the
school guidance counselor or person licensed or registered under
Chapter 4757. of the Revised Code may be compelled to testify on
the same subject.
(e) The court in camera determines that the information
communicated by the client is not germane to the counselor-client,
marriage and family therapist-client, or social worker-client
relationship.
(f) A court, in an action brought against a school, its
administration, or any of its personnel by the client, rules after
an in-camera inspection that the testimony of the school guidance
counselor is relevant to that action.
(g) The testimony is sought in a civil action and concerns
court-ordered treatment or services received by a patient as part
of a case plan journalized under section 2151.412 of the Revised
Code or the court-ordered treatment or services are necessary or
relevant to dependency, neglect, or abuse or temporary or
permanent custody proceedings under Chapter 2151. of the Revised
Code.
(2) Nothing in division (G)(1) of this section shall relieve
a school guidance counselor or a person licensed or registered
under Chapter 4757. of the Revised Code from the requirement to
report information concerning child abuse or neglect under section
2151.421 of the Revised Code.
(H) A mediator acting under a mediation order issued under
division (A) of section 3109.052 of the Revised Code or otherwise
issued in any proceeding for divorce, dissolution, legal
separation, annulment, or the allocation of parental rights and
responsibilities for the care of children, in any action or
proceeding, other than a criminal, delinquency, child abuse, child
neglect, or dependent child action or proceeding, that is brought
by or against either parent who takes part in mediation in
accordance with the order and that pertains to the mediation
process, to any information discussed or presented in the
mediation process, to the allocation of parental rights and
responsibilities for the care of the parents' children, or to the
awarding of parenting time rights in relation to their children;
(I) A communications assistant, acting within the scope of
the communication assistant's authority, when providing
telecommunications relay service pursuant to section 4931.06 of
the Revised Code or Title II of the "Communications Act of 1934,"
104 Stat. 366 (1990), 47 U.S.C. 225, concerning a communication
made through a telecommunications relay service. Nothing in this
section shall limit the obligation of a communications assistant
to divulge information or testify when mandated by federal law or
regulation or pursuant to subpoena in a criminal proceeding.
Nothing in this section shall limit any immunity or privilege
granted under federal law or regulation.
(J)(1) A chiropractor in a civil proceeding concerning a
communication made to the chiropractor by a patient in that
relation or the chiropractor's advice to a patient, except as
otherwise provided in this division. The testimonial privilege
established under this division does not apply, and a chiropractor
may testify or may be compelled to testify, in any civil action,
in accordance with the discovery provisions of the Rules of Civil
Procedure in connection with a civil action, or in connection with
a claim under Chapter 4123. of the Revised Code, under any of the
following circumstances:
(a) If the patient or the guardian or other legal
representative of the patient gives express consent.
(b) If the patient is deceased, the spouse of the patient or
the executor or administrator of the patient's estate gives
express consent.
(c) If a medical claim, dental claim, chiropractic claim, or
optometric claim, as defined in section 2305.113 of the Revised
Code, an action for wrongful death, any other type of civil
action, or a claim under Chapter 4123. of the Revised Code is
filed by the patient, the personal representative of the estate of
the patient if deceased, or the patient's guardian or other legal
representative.
(2) If the testimonial privilege described in division (J)(1)
of this section does not apply as provided in division (J)(1)(c)
of this section, a chiropractor may be compelled to testify or to
submit to discovery under the Rules of Civil Procedure only as to
a communication made to the chiropractor by the patient in
question in that relation, or the chiropractor's advice to the
patient in question, that related causally or historically to
physical or mental injuries that are relevant to issues in the
medical claim, dental claim, chiropractic claim, or optometric
claim, action for wrongful death, other civil action, or claim
under Chapter 4123. of the Revised Code.
(3) The testimonial privilege established under this division
does not apply, and a chiropractor may testify or be compelled to
testify, in any criminal action or administrative proceeding.
(4) As used in this division, "communication" means
acquiring, recording, or transmitting any information, in any
manner, concerning any facts, opinions, or statements necessary to
enable a chiropractor to diagnose, treat, or act for a patient. A
communication may include, but is not limited to, any
chiropractic, office, or hospital communication such as a record,
chart, letter, memorandum, laboratory test and results, x-ray,
photograph, financial statement, diagnosis, or prognosis.
(K)(1) Except as provided under division (K)(2) of this
section, a critical incident stress management team member
concerning a communication received from an individual who
receives crisis response services from the team member, or the
team member's advice to the individual, during a debriefing
session.
(2) The testimonial privilege established under division
(K)(1) of this section does not apply if any of the following are
true:
(a) The communication or advice indicates clear and present
danger to the individual who receives crisis response services or
to other persons. For purposes of this division, cases in which
there are indications of present or past child abuse or neglect of
the individual constitute a clear and present danger.
(b) The individual who received crisis response services
gives express consent to the testimony.
(c) If the individual who received crisis response services
is deceased, the surviving spouse or the executor or administrator
of the estate of the deceased individual gives express consent.
(d) The individual who received crisis response services
voluntarily testifies, in which case the team member may be
compelled to testify on the same subject.
(e) The court in camera determines that the information
communicated by the individual who received crisis response
services is not germane to the relationship between the individual
and the team member.
(f) The communication or advice pertains or is related to any
criminal act.
(3) As used in division (K) of this section:
(a) "Crisis response services" means consultation, risk
assessment, referral, and on-site crisis intervention services
provided by a critical incident stress management team to
individuals affected by crisis or disaster.
(b) "Critical incident stress management team member" or
"team member" means an individual specially trained to provide
crisis response services as a member of an organized community or
local crisis response team that holds membership in the Ohio
critical incident stress management network.
(c) "Debriefing session" means a session at which crisis
response services are rendered by a critical incident stress
management team member during or after a crisis or disaster.
(L)(1) Subject to division (L)(2) of this section and except
as provided in division (L)(3) of this section, an employee
assistance professional, concerning a communication made to the
employee assistance professional by a client in the employee
assistance professional's official capacity as an employee
assistance professional.
(2) Division (L)(1) of this section applies to an employee
assistance professional who meets either or both of the following
requirements:
(a) Is certified by the employee assistance certification
commission to engage in the employee assistance profession;
(b) Has education, training, and experience in all of the
following:
(i) Providing workplace-based services designed to address
employer and employee productivity issues;
(ii) Providing assistance to employees and employees'
dependents in identifying and finding the means to resolve
personal problems that affect the employees or the employees'
performance;
(iii) Identifying and resolving productivity problems
associated with an employee's concerns about any of the following
matters: health, marriage, family, finances, substance abuse or
other addiction, workplace, law, and emotional issues;
(iv) Selecting and evaluating available community resources;
(v) Making appropriate referrals;
(vi) Local and national employee assistance agreements;
(vii) Client confidentiality.
(3) Division (L)(1) of this section does not apply to any of
the following:
(a) A criminal action or proceeding involving an offense
under sections 2903.01 to 2903.06 of the Revised Code if the
employee assistance professional's disclosure or testimony relates
directly to the facts or immediate circumstances of the offense;
(b) A communication made by a client to an employee
assistance professional that reveals the contemplation or
commission of a crime or serious, harmful act;
(c) A communication that is made by a client who is an
unemancipated minor or an adult adjudicated to be incompetent and
indicates that the client was the victim of a crime or abuse;
(d) A civil proceeding to determine an individual's mental
competency or a criminal action in which a plea of not guilty by
reason of insanity is entered;
(e) A civil or criminal malpractice action brought against
the employee assistance professional;
(f) When the employee assistance professional has the express
consent of the client or, if the client is deceased or disabled,
the client's legal representative;
(g) When the testimonial privilege otherwise provided by
division (L)(1) of this section is abrogated under law.
Sec. 2941.51. (A) Counsel appointed to a case or selected by
an indigent person under division (E) of section 120.16 or
division (E) of section 120.26 of the Revised Code, or otherwise
appointed by the court, except for counsel appointed by the court
to provide legal representation for a person charged with a
violation of an ordinance of a municipal corporation, shall be
paid for their services by the county the compensation and
expenses that the trial court approves. Each request for payment
shall be accompanied by a financial disclosure form and an
affidavit of indigency that are completed by the indigent person
on forms prescribed by the state public defender. Compensation and
expenses shall not exceed the amounts fixed by the board of county
commissioners pursuant to division (B) of this section.
(B) The board of county commissioners shall establish a
schedule of fees by case or on an hourly basis to be paid by the
county for legal services provided by appointed counsel. Prior to
establishing such schedule, the board shall request the bar
association or associations of the county to submit a proposed
schedule for cases other than capital cases. The schedule
submitted shall be subject to the review, amendment, and approval
of the board of county commissioners, except with respect to
capital cases. With respect to capital cases, the schedule shall
provide for fees by case or on an hourly basis to be paid to
counsel in the amount or at the rate set by the supreme court
pursuant to division (D) of section 120.33 of the Revised Code,
and the board of county commissioners shall approve that amount or
rate.
With respect to capital cases, counsel shall be paid
compensation and expenses in accordance with the amount or at the
rate set by the supreme court pursuant to division (D) of section
120.33 of the Revised Code.
(C) In a case where counsel have been appointed to conduct an
appeal under Chapter 120. of the Revised Code, such compensation
shall be fixed by the court of appeals or the supreme court, as
provided in divisions (A) and (B) of this section.
(D) The fees and expenses approved by the court under this
section shall not be taxed as part of the costs and shall be paid
by the county. However, if the person represented has, or
reasonably may be expected to have, the means to meet some part of
the cost of the services rendered to the person, the person shall
pay the county an amount that the person reasonably can be
expected to pay. Pursuant to section 120.04 of the Revised Code,
the county shall pay to the state public defender a percentage of
the payment received from the person in an amount proportionate to
the percentage of the costs of the person's case that were paid to
the county by the state public defender pursuant to this section.
The money paid to the state public defender shall be credited to
the client payment fund created pursuant to division (B)(5) of
section 120.04 of the Revised Code.
(E) The county auditor shall draw a warrant on the county
treasurer for the payment of such counsel in the amount fixed by
the court, plus the expenses that the court fixes and certifies to
the auditor. The county auditor shall report periodically, but not
less than annually, to the board of county commissioners and to
the Ohio public defender commission the amounts paid out pursuant
to the approval of the court under this section, separately
stating costs and expenses that are reimbursable under section
120.35 of the Revised Code. The board, after review and approval
of the auditor's report, may then certify it to the state public
defender for reimbursement. The request for reimbursement shall be
accompanied by a financial disclosure form completed by each
indigent person for whom counsel was provided on a form prescribed
by the state public defender. The state public defender shall
review the report and, in accordance with the standards,
guidelines, and maximums established pursuant to divisions (B)(7)
and (8) of section 120.04 of the Revised Code, pay fifty per cent
of the total cost, other than costs and expenses that are
reimbursable under section 120.35 of the Revised Code, if any, of
paying appointed counsel in each county and pay fifty per cent of
costs and expenses that are reimbursable under section 120.35 of
the Revised Code, if any, to the board.
(F) If any county system for paying appointed counsel fails
to maintain the standards for the conduct of the system
established by the rules of the Ohio public defender commission
pursuant to divisions (B) and (C) of section 120.03 of the Revised
Code or the standards established by the state public defender
pursuant to division (B)(7) of section 120.04 of the Revised Code,
the commission shall notify the board of county commissioners of
the county that the county system for paying appointed counsel has
failed to comply with its rules. Unless the board corrects the
conduct of its appointed counsel system to comply with the rules
within ninety days after the date of the notice, the state public
defender may deny all or part of the county's reimbursement from
the state provided for in this section.
Sec. 2945.10. The trial of an issue upon an indictment or
information shall proceed before the trial court or jury as
follows:
(A) Counsel for the state must first state the case for the
prosecution, and may briefly state the evidence by which he the
counsel for the state expects to sustain it.
(B) The defendant or his the defendant's counsel must then
state his the defense, and may briefly state the evidence which
he
the defendant or the defendant's counsel expects to offer in
support of it.
(C) The state must first produce its evidence and the
defendant shall then produce his the defendant's evidence.
(D) The state will then be confined to rebutting evidence,
but the court, for good reason, in furtherance of justice, may
permit evidence to be offered by either side out of its order.
(E) When the evidence is concluded, one of the following
applies regarding jury instructions:
(1) In a capital case that is being heard by a jury, the
court shall prepare written instructions to the jury on the points
of law, shall provide copies of the written instructions to the
jury before orally instructing the jury, and shall permit the jury
to retain and consult the instructions during the court's
presentation of the oral instructions and during the jury's
deliberations.
(2) In a case that is not a capital case, either party may
request instructions to the jury on the points of law, which
instructions shall be reduced to writing if either party requests
it.
(F) When the evidence is concluded, unless the case is
submitted without argument, the counsel for the state shall
commence, the defendant or
his the defendant's counsel follow, and
the counsel for the state conclude the argument to the jury.
(G) The court, after the argument is concluded and before
proceeding with other business, shall forthwith charge the jury.
Such charge shall be reduced to writing by the court if either
party requests it before the argument to the jury is commenced.
Such charge, or other charge or instruction provided for in this
section, when so written and given, shall not be orally qualified,
modified, or explained to the jury by the court. Written charges
and instructions shall be taken by the jury in their retirement
and returned with their verdict into court and remain on file with
the papers of the case.
The court may deviate from the order of proceedings listed in
this section.
Sec. 2949.221. (A) As used in this section:
(1) "Person" has the same meaning as in section 1.59 of the
Revised Code.
(2) "Licensing authority" means an entity, board, department,
commission, association, or agency that issues a license to a
person or entity.
(3) "Public office" has the same meaning as in section 117.01
of the Revised Code.
(B) If, at any time prior to the day that is twenty-four
months after the effective date of this section, a person
manufactures, compounds, imports, transports, distributes,
supplies, prescribes, prepares, administers, uses, or tests any of
the compounding equipment or components, the active pharmaceutical
ingredients, the drugs or combination of drugs, the medical
supplies, or the medical equipment used in the application of a
lethal injection of a drug or combination of drugs in the
administration of a death sentence by lethal injection as provided
for in division (A) of section 2949.22 of the Revised Code,
notwithstanding any provision of law to the contrary, all of the
following apply regarding any information or record in the
possession of any public office that identifies or reasonably
leads to the identification of the person and the person's
participation in any activity described in this division:
(1) The information or record shall be classified as
confidential, is privileged under law, and is not subject to
disclosure by any person, state agency, governmental entity,
board, or commission or any political subdivision as a public
record under section 149.43 of the Revised Code or otherwise.
(2) The information or record shall not be subject to
disclosure by or during any judicial proceeding, inquiry, or
process, except as described in division (B)(4) of this section or
in section 2949.222 of the Revised Code.
(3) The information or record shall not be subject to
discovery, subpoena, or any other means of legal compulsion for
disclosure to any person or entity, except as described in
division (B)(4) of this section or in section 2949.222 of the
Revised Code.
(4)(a) If the information or record pertains to the
manufacture, compounding, importing, transportation, distribution,
or supplying of any of the items or materials described in
division (B) of this section, the person or entity that maintains
the information or record shall disclose the information or record
to the Ohio ethics commission and the commission may use the
information or record, subject to division (B)(1) of this section,
only to confirm the following:
(i) That the relationship between the person and the
department of rehabilitation and correction is consistent with and
complies with the ethics laws of this state;
(ii) That at the time of the specified conduct, the person
has all licenses required under the laws of this state to engage
in that conduct and the licenses are valid.
(b) If the Ohio ethics commission receives any information or
record pursuant to division (B)(4)(a) of this section, the
commission shall complete its use of the information or record for
the purposes described in that division within fourteen days of
its receipt and shall promptly report its findings to the director
of rehabilitation and correction.
(C)(1) If, at any time prior to the day that is twenty-four
months after the effective date of this section, an employee or
former employee of the department of rehabilitation and correction
or any other individual selected or designated by the director of
the department participates or participated in the administration
of a sentence of death by lethal injection, as provided for in
division (A) of section 2949.22 of the Revised Code, subject to
division (C)(2) of this section and notwithstanding any other
provision of law to the contrary, the protections and limitations
specified in divisions (B)(1), (2), and (3) of this section shall
apply regarding any information or record in the possession of any
public office that identifies or reasonably leads to the
identification of the employee, former employee, or other
individual and the employee's, former employee's, or individual's
participation in the administration of the sentence of death by
lethal injection described in this division.
(2) Division (C)(1) of this section does not apply with
respect to information or a record that identifies or reasonably
leads to the identification of the director of rehabilitation and
correction or the warden of the state correctional institution in
which the administration of the sentence of death takes place.
(D) The protections and limitations specified in divisions
(B)(1), (2), and (3) of this section regarding information and
records that identify or may reasonably lead to the identification
of a person described in divisions (B) or (C) of this section and
the person's participation in any activity described in the
particular division are rights that shall be recognized as
follows:
(1) With respect to a person that is an individual, without
any requirement for the person to take any action or specifically
apply for recognition of such rights.
(2) With respect to a person that is not an individual, the
rights do not exist unless the person requests to have the rights
recognized by applying in writing to the director of
rehabilitation and correction.
The director of rehabilitation and correction by rule shall
establish the procedure according to which a person who is not an
individual may apply in writing for the rights described in
divisions (B)(1), (2), and (3) of this section. The director shall
approve an application that is submitted in compliance with the
rules. A person whose application is approved is entitled to the
rights for twenty years after the person ceases the qualifying
activity as contemplated by the first paragraph of division (B) of
this section. The director shall notify any person, who is not an
individual and who is entitled to the rights, of the application
procedures.
(E) If a person or entity that, at any time prior to the day
that is twenty-four months after the effective date of this
section, participates in, consults regarding, performs any
function with respect to, including any activity described in
division (B) of this section, or provides any expert opinion
testimony regarding an execution by lethal injection conducted in
accordance with division (A) of section 2949.22 of the Revised
Code is licensed by a licensing authority, notwithstanding any
provision of law to the contrary, the licensing authority shall
not do any of the following as a result of that participation,
consultation, performance, activity, or testimony by the person or
entity:
(1) Challenge, reprimand, suspend, or revoke the person's or
entity's license;
(2) Take any disciplinary action against the person or entity
or the person's or entity's licensure.
(F) A person may not, without the approval of the director of
rehabilitation and correction, knowingly disclose the identity and
participation in an activity described in the particular division
of any person to whom division (B) of this section applies and
that is made confidential, privileged, and not subject to
disclosure under that division or of an employee, former employee,
or other individual to whom division (C)(1) of this section
applies and that is made confidential, privileged, and not subject
to disclosure under that division. Any person, employee, former
employee, or individual whose identity and participation in a
specified activity is disclosed in violation of this division has
a civil cause of action against any person who discloses the
identity and participation in the activity in violation of this
division. In a civil action brought under this division, the
plaintiff is entitled to recover from the defendant actual
damages, punitive or exemplary damages upon a showing of a willful
violation of this division, and reasonable attorney's fees and
court costs.
(G) If division (B), (C), or (D) of this section applies to a
person with respect to any conduct or activity of the person
occurring at a time prior to the day that is twenty-four months
after the effective date of this section, the expiration of that
twenty-four month period does not affect, add to, or diminish the
protections and limitations specified in division (B) or (C),
division (D), and division (E) of this section with respect to
their application to that person.
Sec. 2949.222. (A) As used in this section, "seal a record"
means to remove a record from the main file of similar records and
to secure it in a separate file that contains only sealed records
accessible only to the court.
(B) The court promptly shall order the immediate sealing of
records containing information described in division (B) or (C) of
section 2949.221 of the Revised Code and the person's
participation in any activity described in the particular
division, whenever the records come into the court's possession.
(C) If a record containing information described in division
(B) or (C) of section 2949.221 of the Revised Code and the
person's participation in any activity described in the particular
division, is subpoenaed or requested by a court order, the
director of rehabilitation and correction shall provide the
record. If the court determines that the record is necessary for
just adjudication, the court shall order the director to appear at
a private hearing with a copy of the record and any other relevant
evidence. The information is not otherwise subject to disclosure
unless the court, through clear and convincing evidence presented
in the private hearing, finds that the person whose identity is
protected appears to have acted unlawfully with respect to the
person's involvement in the administration of a lethal injection
as contemplated by the first paragraph of division (B) and by
division (C)(1) of section 2949.221 of the Revised Code.
Sec. 2953.21. (A)(1)(a) Any person who has been convicted of
a criminal offense or adjudicated a delinquent child and who
claims that there was such a denial or infringement of the
person's rights as to render the judgment void or voidable under
the Ohio Constitution or the Constitution of the United States,
and any person who has been convicted of a criminal offense that
is a felony and who is an offender for whom DNA testing that was
performed under sections 2953.71 to 2953.81 of the Revised Code or
under former section 2953.82 of the Revised Code and analyzed in
the context of and upon consideration of all available admissible
evidence related to the person's case as described in division (D)
of section 2953.74 of the Revised Code provided results that
establish, by clear and convincing evidence, actual innocence of
that felony offense or, if the person was sentenced to death,
establish, by clear and convincing evidence, actual innocence of
the aggravating circumstance or circumstances the person was found
guilty of committing and that is or are the basis of that sentence
of death, may file a petition in the court that imposed sentence,
stating the grounds for relief relied upon, and asking the court
to vacate or set aside the judgment or sentence or to grant other
appropriate relief. The petitioner may file a supporting affidavit
and other documentary evidence in support of the claim for relief.
(b) As used in division (A)(1)(a) of this section, "actual
innocence" means that, had the results of the DNA testing
conducted under sections 2953.71 to 2953.81 of the Revised Code or
under former section 2953.82 of the Revised Code been presented at
trial, and had those results been analyzed in the context of and
upon consideration of all available admissible evidence related to
the person's case as described in division (D) of section 2953.74
of the Revised Code, no reasonable factfinder would have found the
petitioner guilty of the offense of which the petitioner was
convicted, or, if the person was sentenced to death, no reasonable
factfinder would have found the petitioner guilty of the
aggravating circumstance or circumstances the petitioner was found
guilty of committing and that is or are the basis of that sentence
of death.
(c) As used in divisions (A)(1)(a) and (b) of this section,
"former section 2953.82 of the Revised Code" means section 2953.82
of the Revised Code as it existed prior to the effective date of
this amendment July 6, 2010.
(2) Except as otherwise provided in section 2953.23 of the
Revised Code, a petition under division (A)(1) of this section
shall be filed no later than one three hundred eighty sixty-five
days after the date on which the trial transcript is filed in the
court of appeals in the direct appeal of the judgment of
conviction or adjudication or, if the direct appeal involves a
sentence of death, the date on which the trial transcript is filed
in the supreme court. If no appeal is taken, except as otherwise
provided in section 2953.23 of the Revised Code, the petition
shall be filed no later than one three hundred eighty sixty-five
days after the expiration of the time for filing the appeal.
(3) In a petition filed under division (A) of this section, a
person who has been sentenced to death may ask the court to render
void or voidable the judgment with respect to the conviction of
aggravated murder or the specification of an aggravating
circumstance or the sentence of death.
(4) A petitioner shall state in the original or amended
petition filed under division (A) of this section all grounds for
relief claimed by the petitioner. Except as provided in section
2953.23 of the Revised Code, any ground for relief that is not so
stated in the petition is waived.
(5) If the petitioner in a petition filed under division (A)
of this section was convicted of or pleaded guilty to a felony,
the petition may include a claim that the petitioner was denied
the equal protection of the laws in violation of the Ohio
Constitution or the United States Constitution because the
sentence imposed upon the petitioner for the felony was part of a
consistent pattern of disparity in sentencing by the judge who
imposed the sentence, with regard to the petitioner's race,
gender, ethnic background, or religion. If the supreme court
adopts a rule requiring a court of common pleas to maintain
information with regard to an offender's race, gender, ethnic
background, or religion, the supporting evidence for the petition
shall include, but shall not be limited to, a copy of that type of
information relative to the petitioner's sentence and copies of
that type of information relative to sentences that the same judge
imposed upon other persons.
(B) The clerk of the court in which the petition is filed
shall docket the petition and bring it promptly to the attention
of the court. The clerk of the court in which the petition is
filed immediately shall forward a copy of the petition to the
prosecuting attorney of that county.
(C) The court shall consider a petition that is timely filed
under division (A)(2) of this section even if a direct appeal of
the judgment is pending. Before granting a hearing on a petition
filed under division (A) of this section, the court shall
determine whether there are substantive grounds for relief. In
making such a determination, the court shall consider, in addition
to the petition, the supporting affidavits, and the documentary
evidence, all the files and records pertaining to the proceedings
against the petitioner, including, but not limited to, the
indictment, the court's journal entries, the journalized records
of the clerk of the court, and the court reporter's transcript.
The court reporter's transcript, if ordered and certified by the
court, shall be taxed as court costs. If the court dismisses the
petition, it shall make and file findings of fact and conclusions
of law with respect to such dismissal.
(D) Within ten days after the docketing of the petition, or
within any further time that the court may fix for good cause
shown, the prosecuting attorney shall respond by answer or motion.
Within twenty days from the date the issues are raised, either
party may move for summary judgment. The right to summary judgment
shall appear on the face of the record.
(E) Unless the petition and the files and records of the case
show the petitioner is not entitled to relief, the court shall
proceed to a prompt hearing on the issues even if a direct appeal
of the case is pending. If the court notifies the parties that it
has found grounds for granting relief, either party may request an
appellate court in which a direct appeal of the judgment is
pending to remand the pending case to the court.
(F) At any time before the answer or motion is filed, the
petitioner may amend the petition with or without leave or
prejudice to the proceedings. The petitioner may amend the
petition with leave of court at any time thereafter.
(G) If the court does not find grounds for granting relief,
it shall make and file findings of fact and conclusions of law and
shall enter judgment denying relief on the petition. If no direct
appeal of the case is pending and the court finds grounds for
relief or if a pending direct appeal of the case has been remanded
to the court pursuant to a request made pursuant to division (E)
of this section and the court finds grounds for granting relief,
it shall make and file findings of fact and conclusions of law and
shall enter a judgment that vacates and sets aside the judgment in
question, and, in the case of a petitioner who is a prisoner in
custody, shall discharge or resentence the petitioner or grant a
new trial as the court determines appropriate. The court also may
make supplementary orders to the relief granted, concerning such
matters as rearraignment, retrial, custody, and bail. If the trial
court's order granting the petition is reversed on appeal and if
the direct appeal of the case has been remanded from an appellate
court pursuant to a request under division (E) of this section,
the appellate court reversing the order granting the petition
shall notify the appellate court in which the direct appeal of the
case was pending at the time of the remand of the reversal and
remand of the trial court's order. Upon the reversal and remand of
the trial court's order granting the petition, regardless of
whether notice is sent or received, the direct appeal of the case
that was remanded is reinstated.
(H) Upon the filing of a petition pursuant to division (A) of
this section by a person sentenced to death, only the supreme
court may stay execution of the sentence of death.
(I)(1) If a person sentenced to death intends to file a
petition under this section, the court shall appoint counsel to
represent the person upon a finding that the person is indigent
and that the person either accepts the appointment of counsel or
is unable to make a competent decision whether to accept or reject
the appointment of counsel. The court may decline to appoint
counsel for the person only upon a finding, after a hearing if
necessary, that the person rejects the appointment of counsel and
understands the legal consequences of that decision or upon a
finding that the person is not indigent.
(2) The court shall not appoint as counsel under division
(I)(1) of this section an attorney who represented the petitioner
at trial in the case to which the petition relates unless the
person and the attorney expressly request the appointment. The
court shall appoint as counsel under division (I)(1) of this
section only an attorney who is certified under Rule 20 of the
Rules of Superintendence for the Courts of Ohio to represent
indigent defendants charged with or convicted of an offense for
which the death penalty can be or has been imposed. The
ineffectiveness or incompetence of counsel during proceedings
under this section does not constitute grounds for relief in a
proceeding under this section, in an appeal of any action under
this section, or in an application to reopen a direct appeal.
(3) Division (I) of this section does not preclude attorneys
who represent the state of Ohio from invoking the provisions of 28
U.S.C. 154 with respect to capital cases that were pending in
federal habeas corpus proceedings prior to July 1, 1996, insofar
as the petitioners in those cases were represented in proceedings
under this section by one or more counsel appointed by the court
under this section or section 120.06, 120.16, 120.26, or 120.33 of
the Revised Code and those appointed counsel meet the requirements
of division (I)(2) of this section.
(J) Subject to the appeal of a sentence for a felony that is
authorized by section 2953.08 of the Revised Code, the remedy set
forth in this section is the exclusive remedy by which a person
may bring a collateral challenge to the validity of a conviction
or sentence in a criminal case or to the validity of an
adjudication of a child as a delinquent child for the commission
of an act that would be a criminal offense if committed by an
adult or the validity of a related order of disposition.
SECTION 2. That existing sections 120.33, 149.43, 2317.02,
2941.51, 2945.10, and 2953.21 of the Revised Code are hereby
repealed.
SECTION 3. That the version of section 149.43 of the Revised
Code that is scheduled to take effect on March 20, 2015, be
amended to read as follows:
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:
(a) Medical records;
(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 sections 3705.12 to 3705.124 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 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, probation officer,
bailiff, prosecuting attorney, assistant prosecuting attorney,
correctional employee, community-based correctional facility
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 executives of long-term services and supports
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) 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;
(y) Records listed in section 5101.29 of the Revised Code;
(z) Discharges recorded with a county recorder under section
317.24 of the Revised Code, as specified in division (B)(2) of
that section;
(aa) Usage information including names and addresses of
specific residential and commercial customers of a municipally
owned or operated public utility;
(bb) Records described in division (C) of section 187.04 of
the Revised Code that are not designated to be made available to
the public as provided in that division;
(cc) Information and records that are made confidential,
privileged, and not subject to disclosure under divisions (B) and
(C) of section 2949.221 of the Revised Code.
(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, probation officer,
bailiff, prosecuting attorney, assistant prosecuting attorney,
correctional employee, community-based correctional facility
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, probation officer, bailiff, prosecuting
attorney, assistant prosecuting attorney, correctional employee,
community-based correctional facility 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, probation officer, bailiff, assistant
prosecuting attorney, correctional employee, community-based
correctional facility 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,
probation officer, bailiff, assistant prosecuting attorney,
correctional employee, community-based correctional facility
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,
probation officer, bailiff, prosecuting attorney, assistant
prosecuting attorney, correctional employee, community-based
correctional facility 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, probation officer, bailiff,
prosecuting attorney, assistant prosecuting attorney, correctional
employee, community-based correctional facility employee, youth
services employee, firefighter, EMT, or investigator of the bureau
of criminal identification and investigation by the peace
officer's, parole officer's, probation officer's, bailiff's,
prosecuting attorney's, assistant prosecuting attorney's,
correctional employee's, community-based correctional facility
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,
probation officer's, bailiff's, prosecuting attorney's, assistant
prosecuting attorney's, correctional employee's, community-based
correctional facility 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, probation officer's, bailiff's,
prosecuting attorney's, assistant prosecuting attorney's,
correctional employee's, community-based correctional facility
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, probation officer, bailiff, prosecuting
attorney, assistant prosecuting attorney, correctional employee,
community-based correctional facility 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)(9) 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)(9) 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)(a) 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,
probation officer, bailiff, prosecuting attorney, assistant
prosecuting attorney, correctional employee, community-based
correctional facility 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, probation officer, bailiff, prosecuting attorney,
assistant prosecuting attorney, correctional employee,
community-based correctional facility 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, probation officer's, bailiff's,
prosecuting attorney's, assistant prosecuting attorney's,
correctional employee's, community-based correctional facility
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, probation officer's, bailiff's,
prosecuting attorney's, assistant prosecuting attorney's,
correctional employee's, community-based correctional facility
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.
(b) Division (B)(9)(a) of this section also applies to
journalist requests for customer information maintained by a
municipally owned or operated public utility, other than social
security numbers and any private financial information such as
credit reports, payment methods, credit card numbers, and bank
account information.
(c) As used in division (B)(9) of this section, "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 database 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.
SECTION 4. That the existing version of section 149.43 of the
Revised Code that is scheduled to take effect on March 20, 2015,
is hereby repealed.
SECTION 5. Sections 3 and 4 of this act shall take effect on
March 20, 2015.
SECTION 6. There is hereby established a joint committee of
members of the Senate and members of the House of Representatives
to study the manner in which families of homicide victims in this
state can best be supported by government programs, social service
entities, and charitable organizations and the manner and means by
which a court-ordered sentence of death is performed in Ohio,
consistent with judicial precedent. The study shall consider the
issues with respect to both short-term and long-term
considerations.
The Committee shall be comprised of six members. The
President of the Senate and the Speaker of the House of
Representatives shall each appoint two members of their respective
houses to serve on the Committee. The Minority Leader of the
Senate and the Minority Leader of the House of Representatives
shall each appoint one member of their respective houses to serve
on the committee. At their first meeting, the members of the
Committee shall select a Chairperson and Vice-Chairperson. The
Committee shall meet in the same manner, shall be governed by the
rules applicable to, and shall be afforded staffing in the same
manner as standing committees of the Senate and House of
Representatives.
SECTION 7. (A) As used in this section, "lethal injection"
means the application of a lethal injection of a drug or a
combination of drugs in carrying out a sentence of death.
(B) The intent of the General Assembly in enacting this act
is to protect the identities of persons who assist the Department
of Rehabilitation and Correction in carrying out a court-ordered
sentence of death by lethal injection, in order to protect those
persons from harassment and potential physical harm.
(C) It is the intent of the General Assembly in enacting this
act to enable the Department of Rehabilitation and Correction to
obtain the necessary assistance of persons in carrying out a
court-ordered sentence of death by lethal injection or the drugs
needed to administer such a sentence.
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