Ohio Open Records audit shows compliance is spotty at best

(Cleveland Plain Dealer 6/13/04) Employees in city halls, police stations and school boards across Ohio followed state law only half the time when asked for public documents, a recent open-records test found.

Ohio's records law requires timely access to public records, without undue hassle. But in late April, journalists often faced possessive public officials who wanted to know who they were and why they needed the information. The journalists, collaborating for a statewide survey, did not identify themselves unless asked.

In 53 percent of cases, record seekers got what they wanted the same day or the next.

The rest of the time, they were denied records or received them only after identifying themselves, submitting a written request or facing other conditions that are not required by state law, the survey found.

The results were worse in a companion survey of 20 communities in Greater Cleveland, done by The Plain Dealer and the Akron Beacon Journal.

Record requests locally were granted hassle-free only a third of the time.

Those seeking documents found suspicion and even hostility.

In Youngstown, a reporter seeking to learn Mayor George McKelvey's salary ended up face- to-face with the mayor, who recorded the conversation.

In Cleveland, a person requesting Mayor Jane Campbell's expense form was bounced among three offices before learning it would take a week before she could see the information.

In a suburban Dayton school district, officials took down the license plate number of a person seeking to learn the superintendent's salary.

"It would be my hope that the public becomes outraged," said State Rep. Scott Oelslager, a Republican from Canton and an open-records advocate. "These are the people's records. These records were paid for with tax dollars."

Ohio's open-records law is the gateway to a mountain of documents. The media routinely use the law in their role as watchdogs. But citizens can use the law too, to check out everything from crime reports and property values to school budgets and addresses of sex offenders.

To test how public agencies handle requests from average citizens, more than 90 people from 42 newspapers, The Associated Press, two radio stations and two colleges asked to see public records in Ohio's 88 counties. Tom O'Hara, managing editor of The Plain Dealer, and Tom Gaumer, computer-assisted reporting editor for The PD, coordinated the effort.

The surveyors fanned out April 21. They walked into offices where they weren't recognized and asked to review records.

They sought basic documents that public agencies handle routinely, including salary records for superintendents and police chiefs, police incident reports and school treasurers' phone bills.

Ohio's open-records law is straightforward: "All records shall be promptly prepared and made available for inspection to any person at all reasonable times during regular business hours."

Too often, the official response was anything but prompt, particularly among Ohio's school districts.

The districts posted the highest denial rates, with requesters getting their records hassle-free only 30 percent of the time. In the survey of Northeast Ohio communities, every school district either denied the request for the superintendents' compensation or granted it only with conditions.

Elsewhere, officials demonstrated suspicion of record requests, if not outright ignorance of the law.

"Who are you?" was a common question.

"I'd rather not say," Eric Ayres from The (Martins Ferry) Times Leader told the mayor's secretary in Woodsfield in southeastern Ohio.

"In that case, I'd rather not help you," the secretary countered, according to Ayres.

The survey gathered 491 responses to record requests. The surveyors inspected 246 records, or 50 percent, on the day of the request and 13, or about 3 percent, by the next day. Requests were granted with conditions 84 times, or 17 percent.

The requests were denied in 148 instances, or 30 percent of the time. In 20 cases, officials mistakenly claimed that the documents were not public records.

More often, the surveyors were denied the records in a timely manner because of procedural barriers not spelled out in state law, such as requiring written requests, routing requests through city lawyers or setting lengthy waiting periods.

In 10 percent of the cases, record seekers were told that government employees were too busy or unavailable to handle their requests.

Attorney General Jim Petro, the state's top law enforcement officer, said constraints of time and money were no excuse for denying public documents.

"The records requested in this audit are clearly public in nature and, when available, should have been provided in a timely manner," Petro said.

In Youngstown, Mayor George McKelvey not only demanded to know who wanted records of his salary, but he also taped the conversation.

"He reached across the desk and turned on a portable tape recorder," said Norman Leigh of The (Youngstown) Vindicator. "He said something to the effect that he wanted no confusion about what was being said."

McKelvey later said he didn't have a problem with the records request and used the tape recorder only after learning that the requester was a reporter with The Vindicator.

"It's not only to hold me accountable for what I say, but I also hold reporters accountable for reporting accurately what I say," said McKelvey, who often tapes interviews.

In The Plain Dealer's local survey, 45 of 102 record requests, or 44 percent, were denied.

At Cleveland City Hall, Plain Dealer reporter Kaye Spector sought copies of the mayor's expense forms and the police chief's pay.

Spector said she went to the mayor's office, finance depart ment and law department before learning that it would take a week to see the information and two to four weeks to get a copy.

The mayor's spokesman, David Fitz, said the long wait was contrary to city policy.

Cleveland funnels about 50 record requests a day through its Law Department and turns them around as quickly as possible, he said.

In Brunswick, a police clerk asked for the driver's license of Plain Dealer reporter Rachel Dissell after Dissell asked for police incident reports. The clerk returned 10 minutes later with the license and a records-request form, Dissell said.

The department does not require driver's licenses for records requests, said Jennifer Horton, spokeswoman for Brunswick police. The clerk was inexperienced and might have mistakenly believed that Dissell wanted to see if her name showed up in local police records, Horton said.

Bureaucratic hurdles were toughest in Ohio's school districts.

Mike Tobin of The Plain Dealer said he couldn't get past the security guard when he asked for records from the Cleveland school district.

"He demanded to know who I was with," Tobin said. "Then he made a phone call and, once done, informed me I had to send a written request to the media office."

Schools spokesman Alan Seifullah said Tobin should have had an opportunity to get the information the same day.

"The procedure should have been to assist that individual, to put them together with someone who could help them," Seifullah said.

Many school boards required written requests, and officials informed record seekers that the information wouldn't be available for three days or more.

Such hurdles may spring from common policies that hundreds of school districts buy from NEOLA Inc., a Stow consulting company. The policy that NEOLA recommends for open records, for example, says requests shall be submitted on a form and includes the line: "I understand I will be contacted within (blank) days" to view the records.

But school districts could be placing themselves at risk by requiring waiting periods, said Rick Dickinson, the general counsel for the Ohio School Boards Association.

"In general, the public-records law says the records have to be released in a reasonable period of time," he said. "I wouldn't recommend there be an automatic waiting period."

The results of Ohio's records audit are similar to those done in other states and reflect a continued diminishing of access to records, especially since Sept. 11, 2001, said Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press.

"The shutdown in access to information that started at the federal level is being pushed down to the state level," Dalglish said.

--By Tom Breckenridge

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