To Chairman Thomas, Vice Chair Swearingen, Ranking Member Synenberg, and members of the House Judiciary Committee, thank you for this opportunity to provide opponent for House Bill 314.
While HB 314 is framed as targeting mostly “vexatious” requesters of public records from local governments, our concern is HB 314 will impact far more people, far more requesters, and will dramatically shrink the overall ability of Ohioans to learn and know more about how their government and elected officials perform and act.
More specifically, the ACLU of Ohio opposes HB 314’s provisions that, one, allow government officials to drag public records requesters to court when they claim the requester intends to “harass” or “disrupt” a/the pubic office with their records requests and, two, the part allowing public offices to hire private third parties to process “voluminous” requests and charge those costs to the requester(s).
Regarding the first point, we are concerned this will not go nearly as smooth as supporters express and intend. The ACLU of Ohio has and continues to defend in court public records requesters who are repeatedly denied records they are entitled to under Ohio law. Such requesters include the ACLU of Ohio, as we, too, have our own front row seat experiencing the numerous problems, frustrations, and difficulties obtaining government records using Ohio’s public records laws.
In short, there too often is an atmosphere of any combination of hostility, friction, and indifference from government offices requesters must navigate in their attempts to receive public records at all, let alone in a timely and complete and thorough manner.
HB 314 exacerbates these problems by allowing government officials to determine someone is a vexatious requester if those officials “have reason to believe” those requests are “intended to harass the public office” or “disrupt the essential functions” of the government office or entity.
Of course, such determinations are subjective. Our fear here is HB 314 will be used by government offices to improperly shut out those requesters they deem unpopular, pesky, determined, or of the “wrong” political ideology or beliefs.
That these government offices must first go to court and obtain a ruling allowing them to deny certain requests and/or requesters the records they are otherwise entitled to obtain under Ohio law does not provide much comfort. At least in our own experience and with an awareness of others with the same problem, judges and courts sometimes have their own deficiencies in responding to records requests for public records. Yet, HB 314 puts them in position to decide crucial matters regarding Ohioans access to pertinent government information.
Similar concerns exist with HB 314 granting permission to local governments to use private third parties to process “voluminous” (undefined in HB 314) requests and then charge requesters the costs of those services. With this provision, no one should be surprised if numerous requests are deemed “voluminous,” resulting in a paywall of hundreds and thousands of dollars your constituents will have to pay before they obtain records, information, and data of all kinds. In addition, it is easy to forecast some will not be able to pay such exorbitant amounts and will, instead, simply stop making requests, surely a preferred outcome of at least some government offices.
There are other deficiencies with this section of HB 314. What happens when two or more unrelated, unaffiliated people request the same records from a government office? Can that office charge all future requesters for preparing those documents even if the preparation is done, or mostly done, via a single, previous request? Who exactly are these private, third parties who will be facilitating requests? How can Ohioans be confident their lack of internal knowledge and experience with a government office will result in timely and thorough production of records? These are examples of some, but not all, concerns.
The ACLU of Ohio believes advocates of HB 314 when they say there are some requesters who are malicious, who abuse Ohio’s public records laws, and the problems that causes for government offices. However, we do not believe HB 314 is the solution. As currently written, there are too many loopholes, too much discretion, that can be leveraged by government to deny peoples’ record requests that are not truly voluminous, or are not meant to disrupt or harass.
For these reasons and more, the ACLU of Ohio encourages this committee’s rejection of House Bill 314.