The official definition of “public record” is every “record” that is “kept by” a “public office.” The definition of “record” is further broken down into three elements:
- It must exist on a fixed medium.
- It must be created by or received by a public office or come under the jurisdiction of the office.
- It must document the activities of the office.
The law states that a record documents the activities of a public office when it “serves to document the organization, functions, policies, decisions, procedures, operations, or other activities of the office.”
Put simply, the record must show the public what the office does officially, as opposed to administrative functions of the office or the personal actions of individual public officials. For example, employee home addresses kept by an employer solely for administrative or management convenience generally do not document the activities of the public office. Personal calendars or notes that a public official takes as a reminder to complete a task do not document the activities of the public office because they are used only by that official, not by the office.
A “public office” is defined as “any state agency, public institution, political subdivision, or other organized body, office, agency, institution, or entity established by the laws of this state for the exercise of any function of government.”
The Public Records Act sometimes applies to private entities, though. For example, when a public office hires a private entity to do something that the office would normally do – such as search for candidates to fill an open position or litigate a case – the private entity acts a “quasi-agent” of the public office. In this situation, the records that the private entity creates or uses to complete this function may be public records.
A private entity may also be considered the “functional equivalent” of a public office because the entity is performing a traditionally governmental function, such as when a private foundation’s sole function is to raise money for a public university. In this situation, all records of the private entity may be public records.
“Any person” can make a public-records request. “Any person” can include journalists and media outlets, businesses, governmental agencies or public officials. “Any person” is generally interpreted broadly.
A requester does not need to live in Ohio or any specific location. And a requester can be anonymous and cannot be required to identify him- or herself. However, in some situations, journalists have greater access to some records and prison inmates have more limited access to some records. In these situations, the identity of the requester matters.
A requester’s motive and intended use of public records is irrelevant to whether and how a public office responds. There are some very limited exceptions to this rule, including the expanded access afforded to journalists and the limited access provided to prison inmates.
There is no set period for a public office to respond to a request. The Public Records Act says that an office must respond to a request to inspect records “promptly,” and must respond to a request for copies of records “within a reasonable period of time.”
Whether an office responded promptly or within a reasonable period depends on the facts and circumstances of each situation. For example, a court may consider the type of record that is requested, whether the public office must redact information, or whether the office must get legal advice on whether or how to produce the record. A court will not, however, consider the overall burden on the office to respond to the request.
The Public Records Act specifies that when a law enforcement agency responds to a request for video records, the timeliness of the office’s response must take into account the time needed for the office to retrieve, download, review, redact, seek legal advice, and produce the video record, in addition to other facts and circumstances.
Several situations allow a public office to deny a request. An office can deny a request if it doesn’t keep the requested records. For example, the records may be kept by another public office, the records may not have been created yet, the records might have been destroyed or disposed of pursuant to the office’s retention schedules, or the type of requested records simply do not exist.
A public office can also deny a request if the requester does not identify the requester records with “reasonable clarity.” If the office denies a request for this reason, it must do two things:
- Explain to the requester how it organizes and maintains its records. An office should try to provide information that allows the requester to revise the request in a way that allows the office to respond.
- Give the requester an opportunity to revise and resubmit the request.
A public office can withhold or redact records in two situations:
- If the information or document does not meet the definition of a public record because it does not “document the activities of the office.” As previously discussed, certain types of information may not be public record because the information is kept for administrative reasons, or it’s used in a personal – not an official – way.
- If the information in a record or the entire record is covered by an exemption. There are many types of exemptions that allow a public office to withhold or redact information. Exemptions come from case law, Ohio statutes, and federal statutes.
Many exemptions are listed in the Public Records Act. The act also includes a provision (R.C. 149.43(A)(1)(v)) – sometimes referred to as the “catch-all provision” – that exempts “records the release of which is prohibited by state or federal law.” This provision essentially sweeps in exemptions that are in other laws.
To help governmental agencies and citizens identify exemptions within Ohio statutes outside the Public Records Act, the Ohio Attorney General’s Office has compiled this list. The statute citations in the left column are hyperlinked to the full text of the statute. This list is not exhaustive and does not include possible exemptions in federal law. Also, be aware that the exemptions apply to specific types of records, in specific circumstances, and only to specific public offices. Local governmental offices and officials should consult their designated attorney and/or conduct independent legal research to determine whether these exemptions apply or to determine whether there are additional applicable exemptions in Ohio or federal law.
The Sunshine Laws Manual has more in-depth information about exemptions, including when and how they apply. Chapter Four of the Sunshine Laws Manual addresses exemptions specific to law enforcement agencies.
The general rule is that if a requester asks to inspect records, the public office cannot charge the requester. But if the requester asks for copies of records, the office is allowed to charge the requester the “actual cost” that it incurred to respond to the request. “Actual cost” may include the costs of a disc or thumb drive that the records are produced on (ink, toner, and/or paper) and/or the costs of packing, delivering, and sending the records. A public office generally does not incur “costs” when records are sent electronically. And, except for video records discussed below, “actual cost” does not include employee time or office overhead.
Some public offices are allowed to charge more than actual cost. For example, the Bureau of Motor Vehicles can charge $4 for accident reports, and coroners can charge 25 cents per page, even if that’s more than the “actual cost” of the records.
Law enforcement agencies can also charge more than “actual cost” when producing video footage. These agencies can charge up to $75 per hour of video footage (not to exceed $750 total), which may include the cost to review; to blur or otherwise obscure, redact, upload, or produce a video record; as well as the storage medium the office uses to produce a video record, staff time, and any other relevant overhead necessary to comply with the request.
The Ohio Attorney General’s Office has developed a model policy that law enforcement agencies can use to help establish rules and guidelines on charging requesters for preparing video records for production or inspection. The model policy can be found here.
If a requester believes that a public office violated the Public Records Act and is aggrieved based on the violation, the requester can bring one of two types of legal actions against the public office:
- A lawsuit in the Ohio Court of Claims, which has a litigation process specific to public-records cases.
- A mandamus action in a court of common pleas, court of appeals, or the Supreme Court of Ohio.
Before a requester can bring either type of action, however, the requester must complete a mandatory prerequisite before filing. A requester must first serve a complaint on the public office that alleges the office’s failure to comply with the Public Records Act. The Court of Claims provides a standard complaint form for this process. After the public office receives the complaint, the office has three business days to “cure or otherwise address” the failure alleged in the complaint. If the public office fails to address the issue described in the pre-filing complaint, and after the three-business-day cure period has expired, the requester can file a complaint in the Court of Claims or a mandamus action. When filing either type of action, the requester must file an affirmation stating that he or she served the pre-filing complaint on the public office at least three business days before filing the lawsuit. A case will be automatically dismissed if the requester does not file this affirmation.
After a requester completes the pre-filing requirement and the alleged violation is not resolved, the requester can file one of the two types of legal actions:
- The first option is to file a lawsuit in the Ohio Court of Claims, which has an expedited procedure for resolving public-records disputes. An action in the Court of Claims involves (1) filing a specific complaint form, which is available on the Court of Claims webpage or from a court of common pleas clerk, and paying $25 filing fee, (2) attaching the original request and any written responses, (3) mediation, and (4) if mediation is unsuccessful, a “fast track” litigation process that is overseen by a special master. The litigation process has a short briefing schedule and limited evidence. If a requester prevails in the action, the public office may be ordered to pay the requester the $25 filing fee and any other costs associated with the action, but the requester cannot recover attorney fees or other monetary relief such as damages.
The Court of Claims webpage has more information about this procedure, including a case timeline and the complaint form.
- The second option (if the pre-filing requirement is followed) is to file a mandamus action against the public office. In a mandamus action, the requester is asking the court to order the public office to comply with the request, or for an order finding that the office violated a procedural requirement of the Public Records Act. A mandamus action can be filed in any one of three courts: a court of common pleas, a court of appeals, or the Supreme Court of Ohio. If the requester prevails in the action, he or she may be entitled to an award of all court costs, attorney fees, and/or statutory damages. Statutory damages are available only if the request was in writing and delivered to the public office in person, by electronic submission, or by certified mail. Statutory damages are calculated at $100 for each business day starting with the filing of the mandamus action, up to a cap of $1,000. Prison inmates cannot recover statutory damages.
The Sunshine Laws Manual has more in-depth information about the pre-filing complaint requirement, the Court of Claims procedure, and mandamus actions. Please note that the Attorney General’s Office cannot provide legal assistance or legal advice about a lawsuit against a public office.
The Ohio General Assembly enacted the Public Records Act as a “self-help” statute, which means that individuals enforce the law themselves. If a person believes that a public office violated the Public Records Act, the person can file a lawsuit against the office, either on their own or through a private attorney. There is no public entity – including the Ohio Attorney General’s Office – that has the authority to enforce the Public Records Act and therefore cannot investigate or take legal action against a public office.
The Sunshine Laws Manual, published annually by the Ohio Attorney General’s Office, is a helpful resource to learn more about the Public Records Act. The Attorney General’s Office also has a series of informational videos that provide a general overview of common Sunshine Laws topics. The Public Records Act (R.C. 149.43) can be accessed here.