I am a newly-elected public official. What are my obligations under the Public Records Act?
All elected officials in the state of Ohio, or their appropriate designees, are required to attend training approved by the Attorney General once per elected term. Ohio Revised Code (ORC) Section 109.43. The purpose of this training is to ensure that all employees of public offices are appropriately educated about their obligations under the Public Records Act. The training is intended to enhance officials’ knowledge of their duty to provide access to public records, and to provide guidance in updating their offices’ public records policies.

How can I meet this requirement?

As required by the Ohio Revised Code, the Attorney General develops, provides and certifies Public Records training programs and seminars for all elected officials or their designees. Currently, only the Attorney General’s Office and the Auditor of State offer the approved training program for elected officials. The Attorney General’s Office may not charge a fee to attend the training programs it conducts, and all of the three-hour elected official trainings are certified for three hours of Continuing Legal Education Credits. ORC 109.43(B)-(D). Schedules for these training programs are available online at http://www.ohioattorneygeneral.gov/Legal/Sunshine-Laws/Sunshine-Law-Training. You can also take the entire training online at your own pace at https://sunshinelaw.ohioattorneygeneral.gov/. Note: Attendance at any public records program offered by an entity other than the Attorney General or Auditor of State will not satisfy this requirement, and a public official would still be required to attend an approved training.

If I have been appointed to complete a prior elected official’s term, and that official was already certified, do I still have to attend the training?

Per statute, training shall be three hours for every term of office for which the elected official was appointed or elected to the public office. Therefore, an official who is appointed to fill an elected official's place is still subject to the requirements of the act, even if the predecessor had already satisfied this requirement. ORC 109.43(B), (E)(1).

How can I prove that I have satisfied this requirement? Who should I report to?
Compliance with this training program will be audited by the Auditor of State in the course of a regular financial audit. ORC 109.43(G). After attending a certified public records training program, offered by the Attorney General, an attendance report will be posted on the Sunshine Laws page of the Attorney General’s website. This attendance report offers proof that the public official or their designee attended an approved training program and should be saved with that office's appropriate records.

Who is considered an “elected official” that is subject to this requirement under the Public Records Act?
The Ohio Revised Code broadly defines an “elected official” as “an official elected to local or statewide office.” Note, though, that the act explicitly states that an “elected official” does not include the chief justice or a justice of the supreme court, a judge of a court of appeals, court of common pleas, municipal court, county court or a clerk of any of those courts. ORC 109.43(A)(2).

Who is considered an appropriate “designee” under the Public Records Act?
The act states that a “[d]esignee” may be a designee of one elected public official or of all the elected officials of a public office if that public office includes more than one elected official. ORC 109.43(A)(1). The statute does not provide a definition of an “appropriate” designee, but the term implies an official or employee of the same public office with an appropriate connection to the training requirement.

What is the Ohio Public Records Act?
The Ohio Public Records Act is built on the United States’ historical principle that the records of government are “the people’s records.” Patterson v. Ayers, 171 Ohio St. 369 (1960). The Public Records Act provides citizens with steps to take in order to request records from any public office in Ohio while protecting certain specific types of records from release. It also establishes a legal process to enforce compliance when a requester feels that a public office has failed to satisfy its public records obligations. ORC Chapter 149.

Who can make a request for public records?
Any person can request public records by simply asking for them. Usually, the request can be made in any manner the requester chooses: by phone, in person, or in an e-mail or letter. The requester cannot be required to identify him- or herself, or to explain why the records are being requested, unless a specific law requires it. Often, however, a voluntary discussion about the requester’s purposes or interest in seeking certain information can aid the public office in locating and producing the desired records. ORC 149.43(B)(5).

What does a public office have to do when it receives a public records request?
A public office must organize and maintain its records so that it can meet its duty to respond to public records requests. A public office also must keep a copy of its records retention schedule(s) at a location readily available to the public. ORC 149.43(B)(2). When it receives a public records request for specific existing records, the public office must provide inspection of the requested records during regular business hours or provide copies within a reasonable period of time. A requester is entitled to delivery of copies at the actual cost of packaging and delivery by any available means of delivery or transmission that he or she requests. ORC 149.43(B).

The public office may withhold specific records or specific portions of records that are covered by an exception to the Public Records Act, but is required to give the requester an explanation for any part of a record withheld, including the supporting legal authority. ORC 149.43(B)(3). In addition to denials based on an exception, a public office may deny a request in the extreme circumstance where compliance would unreasonably interfere with the discharge of the office’s duties. A request can also be refused if the office no longer keeps the records, if the request is for items that are not records of the office, if the requester does not revise an ambiguous or overly broad request, or if the requester refuses to pay the cost of copies. ORC 149.43(B).

To whom does the Public Records Act apply?
The rights and duties set out in the Act apply only to a “public office or person responsible for public records,” which includes governmental subdivisions, private entities that are the “substantial equivalent” of public institutions, and other “persons responsible for public records.” The act does not apply to private organizations, including corporations, and is also different from the federal Freedom of Information Act (FOIA), which applies only to federal agencies. ORC 149.011(A).

If someone is not given public records, what legal options does that person have?
People who believe they have been wrongly denied a public record that they requested may choose from one of two options, but not both: 1) they can file a lawsuit, called a mandamus action, against the public office, or 2) they can file a complaint with the Ohio Court of Claims. The burden will be on the public office to show the court that any record that it withheld was clearly protected by one or more valid exceptions under the law. If not, the public office will be ordered to provide the record, and may be subject to a civil penalty and payment of attorney fees. The Public Records Act is a “self-help” statute, which requires citizens who believe that the act has been violated to independently pursue a remedy (like a lawsuit), rather than asking a public official such as the Ohio Attorney General to initiate legal action on their behalf. ORC 149.43(C)(1).

Does a public office have to work with the requester to find public records?
If a requester makes an ambiguous or overly broad request that the public office denies, the Public Records Act provides for negotiation between the parties to help identify, locate, and deliver the requested records. ORC 149.43(B)(2). Unless a specific law says otherwise, a requester does not have to give the reason for wanting the records, give his or her name, or make the request in writing, but the request does have to be clear and specific enough for the public office to reasonably identify what public records are being requested. ORC 149.43(B)(5).

What makes a “record” a “public record?”
While the rights of records access under the Ohio Public Records Act apply to all records kept by an Ohio public office, the terms “records” and “public records” do not include every document or item found in a public office. Only those records that document the policies, operations, and other activities of the public office are “public records” under the Public Records Act. ORC 149.43(A)(1).

Can some public records be withheld from a requester?
The General Assembly has passed a number of laws that protect certain records by either requiring or allowing a public office to withhold them from public release. Where a public office uses one of these “exceptions,” the office may only withhold a record or part of a record clearly covered by the exception, and must tell the requester what legal authority it is relying on to withhold the record. If only part of a record is protected by an exception, then the public office must redact (obscure or delete) only that part of the record and provide the unprotected remainder to the requester. ORC 149.43(B)(1).

How long should email records be kept?
It depends on the content of the email message. In terms of records retention, email records are no different than any other record that is kept by a public office. For example, most public offices will have a different records retention schedule for a memo about handling customer complaints than for a daily news clipping file, even though both are records. These records should be kept according to their respective retention schedules, regardless of whether they exist on paper or as an email. The most important thing to remember is that each record should be evaluated for and identified by its content and not by the medium in which it exists. It may help this evaluation process to picture each email message as a paper record.

Should all emails be kept for the same amount of time?
No. Just like messages written on paper, all email messages will not be kept for the same amount of time because they will differ greatly in terms of subject matter. Each email should be identified and managed based on its content.

For example, if an employee of a public office received a piece of paper on their desk noting that a meeting will be held at 3 p.m., the employee could probably discard that paper after the meeting has passed (this would likely be considered a “transient” record, or one that has a limited ministerial use). On the other hand, if the employee received a paper report updating all of the public office’s current projects, it would probably have to be retained for a much longer period of time because of its content. The duly enacted record retention schedules of the public office will determine how long these respective records would have to be kept.

The same is true for email messages. If the employee receives a simple email reminder of a meeting, it can probably be quickly discarded as “transient.” If an email is a notice to staff of a new policy, or serves as the record copy of an order to promote or dismiss an employee, or gives directions regarding an office project or legal case, it would be kept for the period applicable to each type of record.

Always remember, it is the content of a record that determines which retention schedule applies to that record, and determines how long it is to be kept. This is true regardless of whether the record is on paper or an email.

What if a public office gets a request for all emails sent and received by an employee?
A request for “all e-ail” is generally overly broad under the Public Records Act. A 2008 decision by the Ohio Supreme Court reemphasized that the Public Records Act “does not contemplate that an individual has the right to a complete duplication of voluminous files kept by government agencies.” Rather, the requester must identify the records sought with sufficient clarity. Glasgow v. Jones, 119 Ohio St.3d 391, 2008-Ohio-4788.

If a request for “all emails” includes sufficient additional information about the content of those emails to allow the public office to identify responsive records based on the manner in which its records are organized, the request is not overly broad. However, if the request is ambiguous or lacks enough detail for the office to identify which records are being sought, it may well be overly broad. In that instance, the public office is obligated by law to give the requester an opportunity to revise the request by explaining how the various records of the office are ordinarily maintained and accessed. ORC 149.43(B)(2). A set of well-crafted records retention schedules (classified by type of record rather than medium of record) can help put the office and the requester on the same page.

Where can I find more details about the Public Records Act?
For more information about the Public Records Act, the Sunshine Laws Manual is a great resource for finding answers to common and complex questions.

What is the Ohio Open Meetings Act?
The Open Meetings Act requires public bodies in Ohio to conduct all public business in open meetings that the public may attend and observe. This means that if a public body is meeting to discuss and vote on or otherwise decide public business, the meeting must be open to the public. ORC 121.22.

What is a public body, as defined in the Ohio Open Meetings Act?
Public bodies are decision-making groups of state or local government agencies or institutions. Examples of these bodies include school boards, city councils, and boards of trustees. However, the Open Meetings Act does not apply to some public bodies, such as the Ohio General Assembly and grand juries. ORC 121.22(B)(1).

What is a meeting, as defined in the Ohio Open Meetings Act?
In order for the Open Meetings Act to apply, the members of a public body must be meeting to discuss the public’s business. A meeting is a prearranged gathering of a majority of the members of a public body for the purpose of discussing public business. ORC 121.22(B)(2). For example, if there are five members of a school board, and only two get together to discuss public business, this is not a meeting and the Open Meetings Act would not require it to be open to the public. However, if three members gather to discuss public business, this is a meeting and the Open Meetings Act would require it to be open to the public. Also, if there is a meeting as defined by the Open Meetings Act, the public body must give notice to the public.

What kind of notice should be given to the public when a meeting is planned?
Public bodies must notify the public when and where each meeting will take place and must sometimes give notice of what matters will be discussed. Also, every public body must establish, by rule, a reasonable method for notifying the public in advance of meetings. There are three types of meetings, each requiring different types of notice. “Regular meetings” are held at predictable intervals, such as once a month. Public bodies must establish a reasonable method for alerting the public to the time and place of regular meetings. A “special meeting” is any other kind of meeting. Again, public bodies must establish a reasonable method for alerting the public to the time and place of special meetings, as well as the purpose of the meeting. At least 24 hours’ notice must be given to media outlets that have requested such notice, and only topics related to the stated purpose of the special meeting can be discussed. “Emergency meetings” are special meetings that are needed because a situation requires immediate action. The public body must immediately notify certain media outlets of the time, place, and purpose of the emergency meeting. As with special meetings, only topics related to the stated purpose of the meeting can be discussed. ORC 121.22(F).

Are detailed minutes required to be taken at a public meeting?
A public body must keep full and accurate minutes of its meetings, but those minutes do not have to be an exact transcript of every word said. Minutes must be promptly prepared, filed, and made available for public inspection. ORC 121.22(C).

What are executive sessions, as defined in the Open Meetings Act, and when can they be used?
Closed-door sessions, or executive sessions, are initiated when a member makes a motion for a closed-door session and the public body votes on it. These sessions are attended by only members of the public body and persons they invite. Executive sessions may be held for only a few specific purposes. No votes may be taken or decisions made during the executive session on the matter(s) discussed. Members would have to reconvene their public meeting and then openly conduct a vote. ORC 121.22(G), (H).

What can be done if a public body violates the Open Meetings Act?
If any citizen believes that a public body has violated the Open Meetings Act, that citizen may file an injunctive action in common pleas court to compel the public body to obey the Act. If an injunction is issued, the public body must correct its actions, may have to pay court costs, and must pay a fine of $500. Whichever party loses the lawsuit pays the reasonable attorney fees of the other party as ordered by the court. ORC 121.22(I).

If someone is seeking access to a public body’s minutes, and the body is not turning them over, that person can file a mandamus action under the Public Records Act to force the creation of, or access to, meeting minutes. Mandamus can also be used to order a public body to give notice of meetings to the person filing the action. ORC 149.43(C)(1).

Any action taken by a public body while that body is in violation of the Open Meetings Act is invalid. ORC 121.22(H). A member of the public body who violates an injunction imposed for a violation of the Open Meetings Act may be subject to a court action removing that official from office. ORC 121.22(I)(4).

What if I want more details about the Open Meetings Act?
The Ohio Sunshine Laws Manual is a great resource for finding answers to common and complex questions.