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Public Records

Matt Dole

on 14 October 2010

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Transcript of OACPpublicrecords

Mark R. Weaver, Esq. markweaver@isaacbrant.com 614-221-2121 Ohio Association of Chiefs of Police Public Records Update State ex rel. Toledo Blade Co. v. Toledo-Lucas County Port. Authority,
121 Ohio St. 3d 537. Recent Court Decisions Questions or Comments The Ohio Supreme Court concluded that a teacher was not entitled to disclosure of semester exams because they were trade secrets not subject to the public records law. The district established that it spent over $750,000 on the development of the ninth-, tenth-, and eleventh-grade semester exams.

The semester exams would have no or minimal value if they were made public before they were administered. Rhodes v. City of New Philadelphia, 2010-Ohio-1730 Rhodes requested from the City of New Philadelphia all daily public recordings for every day of the year for the years 1975 through 1995. The
city admitted to destroying tapes from 1986 to 1995 without having them on their retention schedule.

Eventually, a jury trial was held. The jury
found that Rhodes was not an “aggrieved party” and found for the city. However, on appeal, the 5th District Court of Appeals reversed the ruling and held that summary judgment should have been granted for Rhodes on the "aggrieved party" issue.

The Court wrote, “We find an aggrieved party is any member of the public who makes a lawful public records request and is denied those records.”The Court also found that there were 84 violations of R.C. 149.351 and held that Rhodes was due a penalty of $84,000.00. State ex rel. Bardwell v. City of Cleveland, 2009-Ohio-5688 Brian Bardwell sought pawnshop records after his computer was stolen. He was awarded statutory damages because the police department did
not provide a list of pawnbrokers or make pawnshop records available for 79 days after he sued. The Public Records law provides that public agencies must "organize and maintain public records in a manner that they can be made available for inspection or copying." Bardwell was awarded damages because he proved the police department did not keep the pawnshop records in a manner available for inspection because their system:

(1) was antiquated (the system involved hundreds of 3x5 index cards) (2) was unwieldy, and (3) created a redacting process that substantially contributed to delay in their release. Bardwell was awarded the maximum $1,000 in statutory damages for
the City’s delay in providing him with the records. State ex rel. Perrea v. Cincinnati Pub. Sch., 123 Ohio St. 3d 410. TAKE AWAY – Trade secrets aren’t limited to corporations. This exception is a fact specific question. TAKE AWAY – ANY person can sue to collect damages if he is denied
in a records request because the records were improperly destroyed. TAKE AWAY - organize your records in a way that allows for inspection within a reasonable amount of time. Having records in a disorganized way can cost your department money. Brian Bardwell handed a receptionist at the Cuyahoga County Prosecutor’s office the following note: "I would like to inspect the
following records: records of Communications from the Plain Dealer or its attorneys regarding the release of Medical Mart contracts or drafts of those contracts, drafts of development agreements related to Medical Mart projects, and your record retention schedule. Thank you." State ex rel. Bardwell v. Cuyahoga Cty. Bd. Of Comm’rs, 2009-Ohio-3273 Bardwell, when asked to provide his identity and contact information, refused to do so. He alleged that the employee who asked for his identity didn’t tell him that he did not have to disclose his identity. The Court found this to be a clear violation of the law; however, it awarded Bardwell no damages because he could not show he “lost use” of the records by being asked to provide his name. TAKE AWAY - If you’re going to ask a requestor for their name, be sure to inform them that they aren’t required to give it. Todd Ellsworth, Esq. tellsworth@downesfishel.com 614-221-1216 The port authority had a law firm prepare a report on claims that its president had an affair with a lobbyist. The Toledo Blade wanted to see that report.

The port authority claimed attorney client privilege and the Blade sued. The Supreme Court held that the report and records reviewed in preparing it were generally subject to § 149.43, as the authority received the report and had custody of the records, which documented its acts.

However, the court held that the report was subject to the attorney-client privilege and hence exempted under the public records law.

Because the report's factual investigation was incident to the lawyer’s legal advice, it was privileged. TAKE AWAY: An agency that hires at attorney to conduct an investigation and prepare a report containing legal advice does not have to disclose the report as a public record. Illegal destruction of public records and why it matters to you. The names you should watch out for... How long do I have to keep my email? The fallout from State ex rel.
Toledo Blade vs. Seneca. O.R.C. 149.351 The district also established that it would have to spend a considerable amount of money to recreate the tests every year. The district had taken steps to maintain the secrecy of the semester exams.

Students were not permitted to make copies of the exams or possess cell phones, cameras, or similar devices when the exams were administered. Although teachers were not required to sign confidentiality agreements, they were instructed that they were not allowed to keep or make copies of the exams.

Teachers had only limited access to the exams, which were kept in a secure area at a central location. Ordering disclosure would reduce the district's ability to evaluate student learning. Such a result was not in line with the policy behind the Public Records Act.
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