The following article originally appeared in the Chagrin Valley Times. Our thanks to the Times for permission to republish the article here.
Chagrin Valley Times
Wednesday, December 13, 2017
By JOSEPH KOZIOL JR.
When do the documents of a public body become a matter of public record?
Two Geauga County residents have turned to a new state program to answer that question.
Shelley Chernin of Russell Township and Dr. Ann Jacobson of South Russell Village are looking to program through the Ohio Court of Claims public records program that was launched in September 2016.
The program is intended to provide the public with a quicker and less expensive means to answer questions like those raised by Ms. Chernin and Dr. Jacobson. Rather than being required to hire an attorney and seek a writ of mandamus through the courts to acquire the records, the new $25 process allows the state to provide a mediator to determine what is and what is not a public record.
The mediation allows the public to avoid traveling to the Ohio Court of Claims in Columbus because most mediation is handled by phone or other electronic means.
Both women have raised questions regarding documents that the Geauga County Park District Board of Commissioners have received or discussed at their public meetings.
Ms. Chernin is seeking a letter cited by park board member Andrej Lah at an Aug. 8 public meeting that purported to disparage a nonprofit group, Protect Geauga Parks. Mr. Lah during his comments on the letter’s author stated, “She’s afraid of being harassed by the Protect group (Protect Geauga Parks),” Mr. Lah said. “She doesn’t want to be harassed and she’s in fear of that harassment.”
Mrs. Chernin sought a copy of the letter that Mr. Lah said was anonymous, a week later. Three days later, she received a response from Park Director John Oros saying the park was working on the request, but due to a park event, the request would have to wait until the next week.
Two weeks later, Mr. Oros responded providing some copies requested, but not the anonymous letter, reportedly expressing fear of the nonprofit group.
Although Ms. Chernin had asked that any denial be accompanied with an explanation as to the “privacy law or other statutory provision they are excluded and redacted. Mr. Oros did not comply with that request, stating only ‘the letter is not considered to be a public record.’ ”
Ms. Chernin then turned to the Ohio Court of Claims.
“In my opinion, discussing the letter at a public meeting and in essence stating that the letter affects park district policy made it a public record,” Ms. Chernin said. “If they get an unsolicited letter from Joe Public, ignored it, and threw it in the trash, then maybe it would not be a public record.”
The Ohio Court of Claims viewed the matter as one to be considered and sent it to mediation. On Nov. 20, it directed an order to park officials, calling for them to preserve the letter during the pendency of the case.
“The court further reminds the district that once created, received, or coming under the jurisdiction of a public office, records may not be disposed or excepted as provided by law or under the rules adopted by the records commission,” the court wrote. “Remedies for unlawful removal or transfer of a public office’s records include civil action for injunctive relief and forfeiture, and replevin by the attorney general if requested by the department of administrative services.”
Since the initial filing, the case has been turned over to a “special master” to review it.
Attorney David Ondrey, who represents the park district, said the district is prepared to take part in the mediation and will argue that the letter is not part of the public record.
“Essentially, the park district interprets current case law regarding this type of document,” he said.
He said the issue of what constitutes a public record is “not as clear cut as some might think.”
As for the letter, Mr. Ondrey said it was an unsolicited letter to Mr. Lah and although it became part of the public discussion, it was not turned over to park officials or copied for distribution among its members.
He said one case where the records were not deemed to be public records involved a school board that went into a closed door session to discuss resumes received by prospective superintendents. He said at the conclusion of the executive session the board chose to not take action and disposed of those resumes. A citizen that sought the resumes as a matter of public record took the issue to court, but the court determined the records were not open to the public.
That case involved a discussion outside of the public’s purview, while Ms. Chernin’s is one that involved discussion in public.
“Doesn’t the Sunshine Law (open meetings and records) create an obligation on the part of a public entity to copy and keep public records?” Ms. Chernin asked. “If failing to copy and keep something makes it not a public record, then they could just throw everything away and say they have no public records.”
She said the question should not be whether a document is copied and kept, but whether its meets the definition of a public record.
For Dr. Jacobson, the Ohio Court of Claims notified her last week that her request was also accepted for mediation.
Dr. Jacobson is requesting copies of all emails and letters from all citizens and groups that identified concerns about the board and parks.
Her request also was denied by Mr. Oros who stated, “These unsolicited correspondence (sic) are not considered to be a public record.”
Dr. Jacobson said that could open up a board to being selective about what they present to the public. Citing the same Aug. 8 meeting, Dr. Jacobson said that in addition to the anonymous letter cited by Mr. Lah, Mr. Oros referred to a letter that was complimentary on the park’s operations.
That request was made to see whether all correspondence was being noted, or just those the board wished to make public.
“By reading from or referring only to selected letters that support the board and its agenda, as well as prohibiting citizen comment at meetings, the board is effectively silencing robust community input and dialogue,” she said.