Commentary

03.16.21

So You Want To Submit A Public Records Request…

By

ICE agents searching people

 

March 14th kicked off Sunshine Week – a national initiative all about raising awareness around the importance of open government. This weeklong celebration brings advocates, activists, news media, and others together to highlight the importance of having laws that keep government records and official meetings open and accessible to the public.

In Ohio, we have the Ohio Public Records Act and Ohio Open Meetings Act – known as Ohio’s Sunshine Laws – to thank for requiring transparency at the state and local level.  

The power of public records cannot be overstated. Public record requests let us take a peek behind the curtain. They allow us to gather information to do our own investigation into the ins and outs of why decisions were made or how governmental agencies operate. At the ACLU of Ohio, public records requests have been the foundation for many of our campaigns, reports, and lawsuits. Anyone can submit a public records request. That’s why it’s important for Ohioans to not only know about Ohio’s public record law, but they should also know about their rights to access information and how to exercise them.

Here are the top four things you need to know about Ohio’s public record law to keep holding state and local governmental agencies accountable.

  • What are the type of records you can request?

First, let’s review the type of records that you can request, and that starts with knowing how “public record” is defined. To be considered a publicrecord subject to public records laws, it must meet all three of these criteria:

    • Have information stored on a fixed medium (paper, computer, film, etc.);
    • Be created, received, or sent under the jurisdiction of a public office; and
    • Document the organization, functions, procedures, policies, operations, decisions, or other activities of the office.

Common examples of public records include, but are not limited to: emails, policies, budgets, reports, correspondence, notes, and/or minutes. That means you can request any of these documents from a public office, and in many cases the office is required to provide what has been requested.

*Not all records are subject to public records requests. There are some exceptions. For example, medical records, attorneys’ private notes, and active law enforcement investigations. You can review Ohio Revised Code §149.43(A)(1)(a-cc) for the complete list of all exceptions.

  • Which agencies and offices can you request records from?

Keep in mind that each state has its own public records law. Under Ohio’s public record law, you can request records from any state or local “public office” in Ohio. Public offices are 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.

State public offices include governmental agencies like the Department of Rehabilitation and Correction (ODRC), the Department of Youth Services (DYS), the Bureau of Motor Vehicles (BMV), and the Department of Child and Family Services (DCFS).

For example, the ACLU of Ohio submitted public records requests to a number of state agencies at the beginning of the COVID-19 pandemic. In late April and early May 2020, we sent three separate records requests to ODRC, DYS, and Governor DeWine (yes, the Governor is subject to public records requests!) to learn more about what Ohio officials had — and had not — done to prevent and mitigate the spread of COVID-19 in prisons, jails, and juvenile facilities. We received responses from ODRC and DYS, but, almost a year later, we have yet to receive any requested documents from Governor DeWine’s office.

The right to request records is the same throughout the state for every city and county. Looking locally, you can request records from jails, police departments, city councils, boards of county commissioners, county health departments, and schools. The ACLU of Ohio recently released a report on drug courts, and data analyzed in the report was gathered by submitting 105 public records requests to Ohio courts with adult and juvenile drug court dockets.

*Federal agencies are tricky. Federal agencies are subject to a federal law called Freedom of Information Act (FOIA). If you want to gather information from a federal agency, the process for submitting a FOIA request is different, as required by federal law. However, you can still get records that relate to a federal agency under Ohio’s public record law if the records are also in the possession of a state or local agency or office. Contracts and funding awards are two common examples. In cases where records overlap between the federal government and state/local government submitting a request under Ohio’s public records law is your best bet.

The state/local agencies are more accessible, which makes it easier to clarify or follow up on your request and to obtain the records that you seek. Not to mention, the process is less complicated. For example, the ACLU of Ohio submitted record requests to sheriffs and county commissioners in the four Ohio counties that have contracts with U.S. Immigration and Customs Enforcement (ICE). Though a majority of the records we requested, like the contracts and funding amounts, were connected to ICE, Ohio’s public record law applied since the records are jointly owned by the county. Rather than submitting a FOIA request, we sent our request to county officials.

That’s not to say that you can’t take a two-pronged approach and submit requests to both agencies. The ACLU of Ohio submitted duplicate requests to federal and local public agencies in the summer of 2020 for records regarding the City of Cleveland’s role in Operation Relentless Pursuit/Operation Legend. We received responses from local stakeholders much faster than from federal stakeholders – the Department of Justice (DOJ) sent some of what we requested at the end of February 2021, seven months later – making the case that utilizing Ohio’s public record laws is the way to go whenever possible.

  • How do you make a request?

To start, you want to think about what you want to accomplish. Identifying a clear goal will help you think critically about the types of records that you need. Requesting smaller amounts of records or asking for records from a definite period of time are good ways to put this into practice. Also, be sure to include a timeframe for the response or a date for when you expect to receive the records.

When you are ready to make a request, you want to think about the public office that has the information you are requesting and determine the best person to contact within that agency. We recommend submitting the request in writing to have a paper trail, whether that’s by mail, fax, or email. You can submit the request anonymously, but it’s helpful to include your contact information to have open communication with the recipient. There is no set format for public records requests, but if you’re looking for some inspiration, we have sample record requests in our public records guide.

  • What can you do if you don’t receive the records you requested?

It’s important to understand how long a public office can take to comply with your request. Ohio’s public records law doesn’t specify a required timeframe for responses. The law simply states that the response must be provided in a “reasonable period of time.” What’s considered “reasonable”? That’s debatable. As someone who has sent a fair share of public records requests, I can verify that some public offices are more responsive than others. Case and point – I sent identical requests to four counties on the same day. One county provided documents within one week, another took over six months. Regardless, the ambiguity in the law is why it’s best practice to request an office send you the records in a certain amount of time and that you follow up with the office if it does not comply.

Don’t be afraid to pick up the phone if you haven’t received a response or if you receive an incorrect or incomplete response. Sometimes, talking with the office contact directly can help provide clarity about your request and/or the reason for any delays. Documenting the conversation after the fact is always best, so you have a paper trail every step of the process.

Unfortunately, it’s not uncommon for people, the press, or groups to hit a wall trying to get public records. Public offices have to provide you with an explanation if your request is denied or if any portion of the record is redacted, for they must explain why the redaction was necessary by citing the legal authority for doing so. If you feel that your request was wrongfully denied, you have two options: 1) file a complaint with the Ohio Court of Claims, or 2) file a writ of mandamus in common pleas court, court of appeals, or the Ohio Supreme Court. There are pros and cons with either choice. If you decide to go this route, you can only pursue one option in accordance with Ohio’s public record law.

Ohio’s public records law is a crucial tool for activists and advocates in holding our government accountable. Transparency is key. Governments function best when they operate in the day light. Understanding and using Ohio’s Sunshine Laws are how Ohioans can best ensure that happens.

Get started on your road to information access:

For more information on Ohio’s Sunshine Laws, visit our public records page.

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