Transcript The Ohio Public Records Act KSU Administrative Policy 3342-5-15.1

The Ohio Public Records Act
KSU Administrative Policy 3342-5-15.1
Presented by
James R. Watson, Esq.
Associate University Counsel
Kent State University
Presentation Prepared by the Office of University Counsel for Educational Use, 2008
The Ohio Public Records Act
Along with the Open Meetings law referred
to as “Sunshine Laws”
 governed by Ohio Revised Code Chapter
149.43
 applies to state offices such as Kent State
University
 Amended by Substitute House Bill 9
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3342-5-15.1 Administrative policy
regarding public records.
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Based on the Model Policy created by the Ohio
Attorney General’s office under Substitute
House Bill 9
Created under the authority of 3342-5-15,
University policy regarding records retention
http://www.kent.edu/policyreg/chap5/5-15-1.cfm
It is the policy of Kent State University to adhere
to the state’s Public Records Act.
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Policy 3342-5-15.1 (A) Purpose
It is the policy
of Kent State
University that
openness
leads to better
informed
citizenry, which
leads to better
government
and better
public policy.
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Policy 3342-5-15.1 (B) Definitions
Record.
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contains information stored on a fixed medium
(paper, computer, film, e-mail, etc.);
is created, received, or sent under the
jurisdiction of the university;
documents the organization, functions,
policies, decisions, procedures, operations, or
other activities of the university; and
exists at the time of the request.
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Policy 3342-5-15.1 (B) Definitions
(2) Requestor. Any person who wishes to make a request
to inspect or receive copies of records. A requestor does
not have to provide his or her identity or the intended use
of the requested record.
(3) Request. Although no specific language is required to
make a request, the requester must at least identify the
records requested with sufficient clarity to allow the
university to identify, retrieve, and review the records.
The requester does not have to put a records request in
writing but it is helpful to the university to know what
records are being sought.
(4) Exemption. Social security numbers and personal bank
routing information are exempted from disclosure when
responding to public record requests. All other
exemptions to disclosure are to be construed in their
narrowest sense.
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Policy 3342-5-15.1 (B)(4) Exemption.
Examples of Specific Exemptions
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FERPA- protected student records
HIPAA- protected medical records
peace officer, firefighter, or EMT residential information
Ongoing investigation records
security and infrastructure records
“expressed exceptions,” including: Job and Family
Services records; Intellectual Property records;
“catch-all exceptions,” including: Attorney Client
Privilege; medical board; child abuse; student
education; “personal notes”, “drafts”, witness or
“included parties” identification.
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REDACTION
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University Counsel
reviews every
document and redacts
exempted information
prior to release.
Redactions don’t
apply to documents
that have been
demanded by
subpoena
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Policy 3342-5-15.1 (B)(4) Exemption.
Attorney-Client Privilege
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The right of the University to
refuse to disclose confidential
communication with its
lawyers.
Fundamental to preserve the
constitutionally-based right to
effective assistance of legal
counsel, in that lawyers cannot
function effectively on behalf of
their clients without the ability
to communicate with them in
confidence.
Source: American Bar Association
http://www.abanet.org/media/issues/
acprivilegeqa.html
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Policy 3342-5-15.1 (C) Scope
(1)
All records of Kent state university are
public unless they are specifically exempt
from disclosure under the Ohio Revised
Code or federal law.
Presentation Prepared by the Office of University Counsel for Educational Use, 2008
Policy 3342-5-15.1 (C) Scope
All records of KSU are public unless specifically exempt
Rule of Thumb:
Assume everything you send, receive, and
create for the University is a public record.
Presentation Prepared by the Office of University Counsel for Educational Use, 2008
Policy 3342-5-15.1
Examples of Public Records
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A Tenure Review File
after the review is
completed
Ongoing Personnel Files
(personally identifiable
information is redacted)
Student directory
information
Bids and Final Contracts
An e-mail about an
employee discipline issue
sent to your gmail
account
Presentation Prepared by the Office of University Counsel for Educational Use, 2008
Policy 3342-5-15.1 (D) Implementation
(1) Record maintenance. As required by Ohio law,
records will be organized and maintained as much as is
practicable so that they are readily available for
inspection and copying. Maintenance standards for email are specifically provided for in (D)(5) of this policy.
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Policy 3342-5-15.1 (D) (1)
Record Retention
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The university’s record retention schedules
pursuant to policy 3342-5-15 are available
online.
http://www.kent.edu/policyreg/chap5/upload/334
2.5.15.pdf
From University Policy 3342-5-15:
 “(C)
Responsibility for adhering to the policies and
procedures regarding records shall reside with the
head of the respective unit where the records are
maintained.”
Presentation Prepared by the Office of University Counsel for Educational Use, 2008
Policy 3342-5-15.1 (D) (1)
Record Retention Schedules
Online
and searchable at
http://www.kent.edu/universitycounsel/RecordsRetention/Welcome.cfm
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The custodian of a
document that must
be disposed of by
“destroying” has to fill
out a document
destruction form.
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Policy 3342-5-15.1 (D) (1)
Record Destruction Form
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http://www.kent.edu/universitycounsel/uplo
ad/RecordDestructionForm.pdf
Presentation Prepared by the Office of University Counsel for Educational Use, 2008
Policy 3342-5-15.1 (D) Implementation
(2) Public record requests.
(a) All public records requests for Kent state
university shall be directed to the office of
university counsel.
Call us at 330-672-2982
E-mail us at [email protected]
Send written requests to us via scan and email, fax
(330-672-7821) or campus mail
Presentation Prepared by the Office of University Counsel for Educational Use, 2008
Pursuant to KSU Administrative Policy…
Presentation Prepared by the Office of University Counsel for Educational Use, 2008
Policy 3342-5-15.1 (D)(2)(b)
Evaluating Record Requests
(i) If it is not clear what records are being sought, and if the
requestor has provided contact information, the office of
university counsel must contact the requester for clarification,
and should assist the requestor in revising the request by
informing the requestor of the manner in which the university
keeps its records.
(ii) Each request should be evaluated for an estimated length of
time required to gather the records. Routine requests for
records should be satisfied as soon as feasible.
(iii) If the responsive records are readily available in an electronic
format that can be e-mailed or downloaded easily, responses
should be made as quickly as the equipment allows.
(iv) Any denial of records in response to a valid request must be
accompanied by an explanation, including statutory legal
authority, as outlined in the Ohio Revised Code. If the request
is in writing, the explanation must also be in writing.
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Policy 3342-5-15.1 (D)(2)(c)&(d)
Availability of Public Records
(c) Public records are to be available for
inspection during regular business hours,
with the exception of university holidays.
(d) Public records must be made available
for inspection promptly and copies of
public records must be made available
within a reasonable period of time.
Always consult with University Counsel
Presentation Prepared by the Office of University Counsel for Educational Use, 2008
Policy 3342-5-15.1 (D)(2)(f)
Denial of Public Records
Any denial of public records requested [from
University Counsel] must include an explanation,
including statutory legal authority. If portions of a
record are public and portions are exempt, the
exempt portions are to be redacted and the rest
released. If there are redactions, each redaction
must be accompanied by a supporting
explanation, including statutory legal authority.
Presentation Prepared by the Office of University Counsel for Educational Use, 2008
Policy 3342-5-15.1 (D)(3)
Cost for Public Records
Those seeking public records will be charged only
the actual cost of making copies:
(a) The charge for paper copies is 10 cents per
page.*
(b) The charge for downloaded computer files to a
compact disc is $1 per disc.
(c) There is no charge for documents e-mailed.
(d) The actual charge for copy services or
mediums – including but not limited to maps,
color copies, hard drives, and audiotapes – will
be charged to the requestor.
* The first set isn’t counted if a second set is made after redacting.
Presentation Prepared by the Office of University Counsel for Educational Use, 2008
Policy 3342-5-15.1 (D)(4)
Delivery
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Requesters may ask
that documents be
mailed or shipped to
them.
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They will be charged
the actual cost of the
postage and mailing
supplies.
Presentation Prepared by the Office of University Counsel for Educational Use, 2008
Policy 3342-5-15.1 (D)(5)
E-Mail
Documents in electronic mail format are
records as defined by the Ohio Revised
Code when their content relates to the
business of the university. E-mail is to be
treated in the same manner as records in
other formats and should follow the same
retention schedules as provided for in
(D)(1) of this policy.
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Policy 3342-5-15.1 (D)(5)
Private E-Mail Accounts
(a) Records in private e-mail accounts used to conduct
university business are subject to disclosure, and all
employees or representatives of the university are
instructed to retain e-mails that relate to university
business (See (B)(1)) and make them available in
response to requests.
(b) The records custodian is to treat the e-mails from
private accounts as records of the university, filing
them in the appropriate way, retaining them per
established schedules and making them available
for inspection and copying in accordance with the
Public Records Act.
Presentation Prepared by the Office of University Counsel for Educational Use, 2008
Policy 3342-5-15.1 (D)(5)
Private E-Mail Accounts
Rule of Thumb:
Don’t do University business on private e-mail
accounts!
Presentation Prepared by the Office of University Counsel for Educational Use, 2008
Policy 3342-5-15.1 (E)
Failure to respond to a public records request.
(1) Kent state university recognizes the legal
and non-legal consequences of failure to
properly respond to a public records request. In
addition to the distrust in government that failure
to comply may cause, the university’s failure to
comply with a request may result in a court
ordering the university to comply with the law
and to pay the requester attorney’s fees and
damages.
Presentation Prepared by the Office of University Counsel for Educational Use, 2008
Your Responsibilities
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What to do when you receive a public
records request for University records?
Forward the request to the Office of University
Counsel to be reviewed.
Make the records requested available to the
Office of University Counsel to be reviewed and
redacted if necessary.
The Office of University Counsel will contact and
make the records available to the requestor,
directly or through the custodian’s office.
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Subpoenas
If you receive one of these…
IN ANY COURT OF ANY KIND
* * * * * ANY KIND OF SUBPOENA * * * * *
JOHN DOE
:
PLAINTIFF
:
Case No.: 2008 OH 01234
VS
:
JOHN Q. PUBLIC :
JUDGE: I. MEENBISNIS
DEFENDANT
:
TO: KENT STATE UNIVERSITY (Name)
P.O. BOX 5190 (Address)
KENT, OH 44242 (City-State-Zip)
YOU ARE HEREBY COMMANDED TO: PRODUCE STUFF
Presentation Prepared by the Office of University Counsel for Educational Use, 2008
…forward it to University Counsel.
We will review and get back to you with
instructions as soon as possible.
Presentation Prepared by the Office of University Counsel for Educational Use, 2008
The Open Meetings Act
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What is an open meeting?
An open meeting under Ohio law is:
(1) a prearranged gathering
(2) of a majority of the public body
(3) to conduct or discuss public business.
The ONLY University public body and therefore
the only body subject to the open meetings law
is the Kent State University Board of Trustees
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Records and Archiving
Special Collections and Archives
Stephen H. Paschen, University Archivist
330-672-1639
[email protected]
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Administration of University Archives.
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Appraisal
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Acquisition
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Processing
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Preservation
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Access.
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Records and Archiving
Special Collections and Archives
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Not a records center.
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Special Collections and Archives holdings are
for permanent retention.
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We do not arrange for temporary storage or
disposal.
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Historically important records.
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Generally not interested in artifacts.
Presentation Prepared by the Office of University Counsel for Educational Use, 2008
Records and Archiving
Special Collections and Archives
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University Archivist – assists with:
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Backlogs of records in offices.
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Offices with matters of records disposition.
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Coordinated efforts across campuses.
Presentation Prepared by the Office of University Counsel for Educational Use, 2008
Records and Archiving
Special Collections and Archives
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Records Advisory Committee.
Surveys records practices.
 Reviews IUC retention schedules.
 Communicates best practices.
 Consultation and collaboration.
 Identifies contacts in offices.
 Considers electronic records issues.
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Presentation Prepared by the Office of University Counsel for Educational Use, 2008
Records and Archiving
Special Collections and Archives
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When to consult the University Archivist.
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Retention schedule questions.
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Historically important materials.
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Questions regarding records destruction.
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Before shipping records to the archives.
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Preservation and conservation issues.
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Reference questions regarding the University’s history.
Presentation Prepared by the Office of University Counsel for Educational Use, 2008
Records and Archiving
Special Collections and Archives
Stephen H. Paschen
University Archivist
330-672-1639
[email protected]
Presentation Prepared by the Office of University Counsel for Educational Use, 2008