Transcript Sexual Harassment Awareness Training

Agenda
• Mission Statement
• Transformation of PRA by HB 9
• Public Records Act Overview
• How to Comply with Public
Records Requests
• Law Enforcement Exemptions
• Records Retention
• Open Meetings Act
• Q&A
Mission Statement
Consistent with the premise that
government at all levels exists first
and foremost to serve the interests of
the people, it is our mission and intent
to at all times fully comply with and
abide by both the spirit and the letter
of Ohio’s Public Records and Open
Meetings Acts.
Statement of Principles
The Public Office:
• Will ensure that all personnel become and remain fully trained
in and aware of the provisions of the acts
• Will adopt policies that encourage employees to immediately
report incidents of non-compliance with the acts that they
may observe
• Will do nothing that abridges the public’s right to obtain
information about their government or that inhibits or
discourages citizens from doing so
Statement of Principles
The Public Office:
• Will do everything possible to aid those who are seeking
information, including but not limited to, fully explaining the
scope and operation of the Acts and assisting Citizens
in the formulation of Requests
• Will construe the provisions of the Acts in a manner that favors
compliance with requests for information
• Will seek guidance from the Office of the Ohio Attorney General
whenever a question arises about the application of the Acts or
about the appropriateness of a request for information
• Will clearly and concisely state the reason or reasons why a
request for information has been denied
Mandatory Training and Agency
Policies - H.B.9
Education
Compliance Audits
New Records
Retention Commissions
Education
• Requires AG to develop, provide, and certify
training programs and seminars about Public Records Law
• Requires all elected officials or their designees to
attend a three hour Public Records training program approved
by the AG once per elected term
• Requires the AG to develop and provide to all public
offices a model public records policy
• Requires all public offices to prepare and prominently display
a poster describing their public records policy
Purpose of Model Policy
• Starting point
• Agency drafts individual policy
• Based on public office’s types
of records, costs of copying,
normal business hours,
unique exceptions, etc.
Compliance
• Requires the State Auditor to audit public offices for:
– Compliance with the training of elected officials, and
– Records policy provisions for all public offices
Records Retention
• Modifies statutes governing
various records commissions
and creates additional records
commissions
For more information, please contact:
Pari Swift, Assistant State Archivist Ohio
Historical Society
Local Government Records Program
(614) 297-2553
[email protected]
Public Records Act Overview
Definitions
Obligations
Exemptions
Liabilities
Definitions
Public Office
• Any local or state
governmental entity
or
• Any private entity that
is the functional equivalent
of a governmental entity
Definitions
Public Records
• A record kept by a public office that:
– Has information stored on a fixed
medium (tapes, e-mails, photos, films,
videos, papers, etc.), and
– Is created or received by, or coming under
the jurisdiction of, a public office, and
– Documents what the public office does;
the organization, functions, policies,
decisions, procedures, operations,
or other activities of the office
Obligations
• Provide prompt inspection of public records
• Upon request, provide copies within
a reasonable period of time
• To any person
How to
Comply With
Public Records
Requests
Agency Response
Negotiation
Documentation
Rules of Special Note
• Any “person” can make a public records request including
corporations and other governmental agencies
• No special format or special language required
• A request may be written or verbal
• The requester’s motive is not relevant. However, the
request must at least be specific and describe in detail the
records being sought.
• A public office cannot require the requester to put it in
writing or reveal his/her name
Redaction
Obscuring or deleting any
information that is exempt
from the duty to permit public
inspection or copying from an
item that otherwise meets the
definition of a record.
Must be plainly
visible, or advise
requester
Issues of Note
NOTES/DRAFTS
HOME ADDRESS
E-MAILS
STUDENT RECORDS
CLEIRS
Liabilities for Violating the Public
Records Act
1. No Criminal Liability
2. Attorney General CANNOT investigate or enforce
3. Mandamus Action by requester
A legal action filed in common pleas, appellate court, or
the Ohio Supreme Court to enforce the public records act
4. Civil Penalty
5. Attorney’s fees and
court costs
Electronic Records
• Handle electronic records just
like any other tangible record
• Analyze based on
content, rather than
storage medium
• Select additional
rules will apply
Additional Rules for Electronic Records
Exists so long as a
computer is already
programmed to
produce the record.
State ex rel Scanon v.
Deters, 45 Ohio St.3d
376 (1989).
Must satisfy the
definition of a “public
record” under R.C.
149.43(A)
Copies must be made
available on paper,
the medium on which
it is kept or any other
medium readily
available as an
integral part of the
operations of the
public office. See R.C.
149.43(B)(2).
May only charge for
a copy is the actual cost of
making the copy. This does
not include employee labor.
Items that satisfy
the definition of
Infrastructure Records
under R.C. 149.433
The following Electronic
Records are specifically
exempt from the Public
Records Act:
Cannot charge for the
public to inspect over
the Internet. OAG 0046
May be a compilation
of otherwise public
records, may itself be
a public record. See
State ex rel. Kerner v.
STRS (1998), 82 Ohio
St. 3d 273; State ex
rel. Cincinnati Post v.
Schweikert (1988), 38
Ohio St. 3d 170.
Transmit via ordinary U.S. Mail
or any other means of delivery
or transmission.
Items expressly
exempted within the
Electronic Signatures Act, RC.
1306.23433
Practical Problems
Request for Electronic Records
1. Identifying the Electronic Public Record
2. Overly broad request for Electronic Public Records
3. Requests for Electronic Public Records in media other than paper
or manner kept
Steps for Identifying the Record
and Handling Overly Broad Requests
1. Determine whether the Electronic Record “exists” for the
purposes of the PRA
2. Determine the “layout” of the Electronic Record
3. Determine whether the Definition of a “Public Record” is satisfied
Note
• No obligation to provide complete
duplication of the voluminous files of
a public office
• No obligation to provide Internet
Access to Electronic Public Records
• No obligation to create new
Electronic Records or store
records on particular media
Suggested Method for
Responding to an Oral or Written PRR
Receipt of Public Records Request
Records ARE immediately
AVAILABLE on-site then…
Public office promptly
conducts a review of
circumstances and facts to
determine if …
Records NOT AVAILABLE b/c off-site,
voluminous, legal review/ redaction
necessary then…
Write receipt letter confirming
substance of request and …
Explain situation
to requester and…
Inform that records will be available
w/in reasonable or
prompt period and …
Locate & Gather records and…
Public Office personnel will
make records available
w/in a reasonable or
prompt period of time and
during the normal course
of business for…
Completion of public
records requests. May
charge appropriate
copying and postage fees,
if applicable.
Perform legal review and…
Redact and
Copy and make available
pertinent records for…
Records Retention
Obligations
Liabilities
Schedules
Obligations of Public Offices for
Records Retention
• Shall make only such records as are necessary to document
the organization, functions, and essential transactions of the
agency, and to protect the legal and financial rights of the state
and persons directly affected.
R.C. 149.40
• May not destroy, mutilate, or otherwise dispose of records
except as provided by law or under the rules of the records
commissions.
R.C. 149.351
• Shall organize and maintain public records in a manner that
they can be made available for inspection or copying, and
• Shall have available a copy of its current records retention
schedule at a location readily available to the public.
R.C. 149.43(B)(2)
Liabilities for Violation of Records
Retention Laws
Any person may file either or both of the following,
in common pleas court:
– A civil action for injunctive relief to compel compliance
with this section, and an award of reasonable attorney’s
fees, and/or
– A civil action to recover a forfeiture of one thousand
dollars for each violation, and an award of reasonable
attorney’s fees
R.C. 149.351
Records Retention Schedule Contents
• Record Series Title
• Series Description - include information that:
– Describes the purpose and function of the record series
– Tells what types of information can be found in the records
– Describes how the records are arranged
• Set retention period, format(s) to be retained,
and disposal method(s)
Create the schedule for someone
who has no knowledge of the records
Factors Determining Retention Periods
• Administrative Purposes
– Records used by the office to carry out its duties
• Fiscal Tracking
– Pertaining to the receipt, transfer, payment, adjustment, or
encumbrances of funds. Documents subject to audit.
• Legal Value
– Documents relating to rights or obligations of citizens, or of the
agency that created it
• Historical Value
– Documents an agency’s organization, policies, decisions, procedures,
operations, and other activities
– Contains significant information about people, places, or events
– Secondary value: source of information for persons other than the creator
Sample Records Retention Schedule
Retention Schedule Approval Process
• Local Records Commission (State Agencies – DAS)
• Ohio Historical Society
– Review and forward within 60 days to
• Auditor of State
– Review and approve or disapprove within 60 days
The same agencies review Applications for
One-time Disposal of Obsolete Records
Records Retention Information
For more information, please contact:
Pari Swift, Assistant State Archivist Ohio
Historical Society
Local Government Records Program
(614) 297-2553
[email protected]
Examination of Exemptions
Unless the public office can identify
an exemption which clearly requires or
permits withholding a requested record,
it must disclose the record.
Mandatory/Catch-all Exemption
• Any state or federal law which prohibits the release of
specified records – RC 149.43(A)(1)(v)
• Records are prohibited from disclosure
under these laws, even if the public office
would like to disclose it
• If any state statutes, rules, federal statutes
or regulations prohibiti public disclosure,
then a public office MUST NOT release
that record in response to a Public Records
Request
Student Records
Family Education Rights and
Privacy Act of 1974 (FERPA)
School officials may not disclose personally
identifiable information about students without the
written consent of the students or their parents,
unless permitted to do so by the Act.
Discretionary Exemption
• A record may be “confidential” in the sense that it is exempt
from disclosure under the express language of the Public
Records Act
• This means that a public office does
not have to disclose the public record in
response to a request, but may if it so
chooses
• If any state statutes, rules, federal statutes
or regulations designate certain records
as not a “public record” under R.C. 149.43
then they ARE NOT subject to the
provisions of the Public Records Act
A Waiver
A voluntary disclosure of a record that could be
appropriately withheld under one of the exemptions,
particularly if the disclosure was to a person whose
interest is antagonistic to those of the public office.
The disclosure MUST have been voluntary
and to a member of the public.
Exemptions (Examples)
Mandatory
Exemptions
• Physician-patient
privileged records
Discretionary
Exemptions
• Trial Preparation Records
• Student education records
• “Security” and “Infrastructure”
records
• Criminal history records
obtained through LEADS
• Confidential Law Enforcement
Investigatory Records (CLEIRs)
• Criminal records sealed
pursuant to statutorily
authorized court order
• Information pertaining to
the recreational activities of
children younger than 18
• DNA records obtained
from inmates
• Non-medical records identifying
recipients of Golden Buckeye
cards
• Concealed carry permit records
* Refer to Yellow Book for additional exemptions
Exemptions Summary
• If a record falls squarely
in the “catch all” exemption,
WITHHOLD
• If the record falls squarely under
one of the other express exemptions,
use CAUTION and withhold or
disclose at your discretion
• If a record is clearly public
with no applicable exemptions,
DISCLOSE
Spotlight on:
Law
Enforcement
Exemptions
Confidential Law Enforcement
Investigatory Records (CLEIRs)
Two Step Analysis When Exempting
Records from Release
Step 1
Must pertain to a
law enforcement
matter consisting of:
• Specific suspicion of misconduct
• Conduct violates lawi.e., criminal, civil or administrative
(Not routine personnel discipline)
• Agency has authority to enforce law
Step 2
Release of record
would disclose the
following:
• Uncharged Suspect
• Confidential Source or Witness
• Physical Safety
• Investigatory techniques or procedures
• Investigatory Work Product
Confidential Law Enforcement
Investigatory Records (CLEIRs)
Examination of Step Two
Uncharged Suspect
Confidential Source
No Arrest or Indictment
Promised Confidentiality;
Only identity not information
Physical Safety
Investigatory Techniques
or Procedures
Investigatory Work Product
Must be self-evident
Must be sophisticated;
Lose efficacy if widely known
All complied documents;
Expires when case is over
Upon case
completion,
these records of
investigatory work
product become public:
Autopsy
Reports
CAUTION
Lab
Reports
Crime Scene
Photos
Witness
Statements
WARNING: A public office should always
consult with its legal counsel to verify that
the case is indeed over!
Notes:
CLEIRs Exemption
expires when all actions and
proceedings in the case are over
Records that are
ALWAYS public
• 911 Tapes
• Initial Incident Reports
• Contractual Agreements
• Resumes for Public
Employment
Safety Officer Exemptions
Peace Officer
Parole Officer
Prosecuting Attorney
Assistant
Prosecuting Attorney
Correctional Employee
Youth Services Employee
Firefighter
EMT
Safety Officer Occupation
Exempted Information Includes:
• Personal Address except for state or political subdivision
• Social Security Numbers
• Residential Telephone Numbers
• Bank Account Numbers
• Debt/Charge/Credit Card Numbers
• Emergency Telephone Numbers
• Medical Information
• Beneficiaries’ Names
• Voluntary Salary Deductions
• Photographs of undercover or plain clothes positions
or assignments
Exception To This Rule
Should a journalist desire select residential or familial
information about a specific peace officer, parole officer,
prosecuting atty, assistant prosecuting atty, correctional
employee, youth services employee,
firefighter or EMT that is exempt,
then the journalist must put the
request in writing. The request shall
include the journalist’s name, title
and the name and address of the
journalist’s employer. The request
shall state that this disclosure of
the information sought would be
in the public interest.
Additional Exemptions of
Interest to Law Enforcement
• Security Records
• Infrastructure Records
• Probation & Parole Records
• DNA Database Records
• Certain Juvenile Records
– Juvenile Courts
– Child Protective Service
• Records of Incarcerated Individual
Law Enforcement Tools
• AFIS
(Automated Fingerprint
Identification System)
• OHLEG
• CCW
• LEADS
• SORN
• DNA
Example – Inmate Request
• Are inmates entitled to public records?
• What is the request? Overbroad? Negotiate!
• Intended use does matter here - if the request concerns
a criminal conviction or investigation,
then R.C. 149.43(B)(8) applies
• If the sentencing judge permits the request, CLEIRS still
applies – is the requested case over?
• Should you charge an inmate for copies? In advance?
• Must the public office present records for inspection?
Surrogates
Open Meetings
Act Overview
Definitions
Obligations
Liabilities
Definitions
Meeting
Prearranged gathering of a majority of
members of public body conducting or
discussing public business
Public Body
Any decision-making body of state,
county, township, municipal corporation,
school district or political subdivision,
or local public institution
Obligations
To take action &
deliberate on public
business in open session
To give appropriate
notice of the meeting
To take and file
minutes of the meeting
Types of Meetings
Regular
Meeting
Meeting held at
prescheduled intervals
Special
Meeting
Any meeting that is
not a regular meeting
Emergency
Meeting
A special meeting that
requires immediate action
due to unforeseen emergency
Can A Member Participate
In A Meeting By Telephone?
No
A member “shall be present in person at a meeting open to the public to
be considered present or to vote at the meeting and for purposes of
determining whether a quorum is present at the meeting.” R.C. 121.22(C)
Are Work Sessions “Meetings”
Subject to the Open Meetings Act?
Yes
Prearranged work sessions, retreats, etc. where public business is discussed
among a majority of the members of the public body are “meetings” and
must be as noticed and open, as with any other meeting.
Voting at Meetings
The OMA does not govern the method by which a public body must vote
unless a particular statute requires a specified method. The public body may
use its own discretion in determining the method of voting it will use.
The Attorney General recently advised that the Open Meetings Act
does not permit any voting by secret ballot.
Executive Sessions
Proper Procedures
• Must be preceded by a specific motion, a second,
and a roll call vote
• Motion should state the specific topic(s) that will be
discussed in Executive session
• Meetings must always begin & end in open session.
Cannot adjourn from Exec. session
Executive Sessions
Acceptable Topics for Discussion
1. Personnel
2. Property
3. Court Action (w/attorney)
4.
5.
6.
7.
Collective Bargaining
Matters Confidential by law
Security Arrangements
County Hospitals’ Trade Secrets
Executive Sessions
Present in Executive Session:
• Who may members include?
– anyone you invite to stay
• Who may the members exclude?
– anyone you choose to exclude
• Keep in mind that there is no penalty (under the Open
Meetings Act) for revealing what was discussed in Executive
Session. Choose attendees accordingly.
Restrictions On Executive Session
• There can be No Decision-Making
•No Voting - other than to
vote on a motion to recess or
to return to open session
• Non-permitted matters
may Not be discussed in
Executive Session, even if
intertwined with permitted
matters
Executive Sessions
Records from Executive Session:
• Executive Session does not make
any material confidential, including
documents or other records handed out
• Other confidentiality provisions (property
bids and offers, “catch-all” matters)
• Analyze public records issues separately
• Handing records to member of public
in Executive Session may waive any
exceptions
• No minutes for Executive Session
Penalties
Fines
Injunction
Attorney’s Fees
Court Costs
Action Invalidated
Possible Removal
from Office
Discussion Topics
1. Privacy and Public Records
2. Court Records
3. Electronic Records
4. Exemptions/Exceptions
5. Legislation
Hypotheticals
1. Are police officers’ personnel files public records?
City of Toledo, v. James Spicuzza (2005)
2. Can the actual removal, mutilation, destruction, transfer or damage to a
public record a violation of the PRA?
Kish v. City of Akron (2006)
3. Must a court clerk make public records available without redacting
Social Security numbers?
Montgomery City Public Defender v. Siroki (2006)
4. Can an informal document request of employee information include a
request for tax returns?
Fisher v. Cleveland (2006)
5. Is the court clerk required to provide an inmate a copy of the sentencing
judgment entry from his criminal matter?
Watson v. Dan Foley (2005)
Questions & Answers
For Additional Information or to
Schedule a Presentation for your Group…
Call Ohio Attorney General
Marc Dann’s Office
614-466-2872
Public Records Unit
Yellow Book: www.ag.state.oh.us
Liberty cannot be preserved without a
general knowledge among the people, who
have a right...and a desire to know; but besides
this, they have a right, an indisputable, divine
right to that most dreaded and envied kind of
knowledge, I mean of the characters and
conduct of their rulers .
- A Dissertation on the Canon and
Feudal Law, John Adams (1765)
Sponsored
by Attorney
General Marc
Dann’s Office