Project Sunshine: Open Meetings, Executive Session and Public Records

Presentation by

Chris Schmenk, Esq. Maria Armstrong, Esq.

Katie Johnson, Esq.

Bricker & Eckler LLP www.bricker.com

Columbus l Cleveland l Cincinnati-Dayton I Marietta © 2014 Bricker & Eckler LLP

The Delicate Balance

 Economic Development in General: – Local entities need to be agile, fast-moving and empowered with the necessary tools to “seal the deal” in bringing growth to Ohio – Need to protect trade secret, proprietary business information related to projects  JobsOhio: – Created to be an independent nonprofit entity which would possess the same characteristics – Public scrutiny created the need to find the balance between effectiveness and transparency 2 © 2014 Bricker & Eckler LLP

Evolution of Public Records Portion of ORC Chapter 187

 Under H.B. 1 (created JobsOhio in 2011), Section 187.04(C) read as follows: – (C) Records created or received by JobsOhio are not public records for the purposes of section 149.43 of the Revised Code, regardless of who may have custody of the records, unless the record is designated to be available to the public by the contract under division (B)(2) of this section.

 Section 187.04(B) designated records that would be “public”, including federal income tax return, expenditure reports, officers/employees’ compensation, financial audit reports, fully executed incentive proposals & Board minutes 3 © 2014 Bricker & Eckler LLP

  

Evolution of Public Records Portion of ORC Chapter 187

The second JobsOhio bill (Senate Bill 314 from 2012) restructured ODSA and among other provisions, attempted to reinforce the protections in ORC Section 187.04(C) by amending ORC Section 149.43(A) to specify that JobsOhio records are not “public” unless so designated Created concerns with Attorney General Mike DeWine, The Ohio Newspaper Association and others Bill was amended to clarify that any public records received by JobsOhio remain public 4 © 2014 Bricker & Eckler LLP

JobsOhio Financial Transparency

 Became an issue in 2012-2013 with Auditor Yost’s desire to audit  Resolved with S.B. 67, which clarified that monies relating to the long-term lease of the state’s liquor business are not “public money” subject to audit  JobsOhio voluntarily posts its development deals on its web site each month, with a listing of how much money is being used for each deal (http://jobs-ohio.com/monthly-metrics/) 5 © 2014 Bricker & Eckler LLP

Application of Ohio’s Sunshine Laws to Local Economic Development Entities

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Open Meetings Act

R.C. 121.22

“All meetings of any public body are declared to be public meetings open to the public at all times.” 7 © 2014 Bricker & Eckler LLP

Sunshine Law Overview

 Open Meetings Act and Public Records Law  Requirements of an open meeting – Elements of an open meeting – Appropriate use of executive session  Public records – Handling public records requests – Exceptions to the public records laws 8 © 2014 Bricker & Eckler LLP

What is a “Public Body”

     “Any board, commission, committee, council, or similar decision-making body of a . . .council, agency, authority, or similar decision-making body . . .

Board of Commissioners, Township Trustees, and Port Authorities are all public bodies. Community Improvement Corporations (CIC) designated as the agency for economic development by a county, municipality or other public entity pursuant to R.C. 1724.10.

Any committee or subcommittee of a body of the above.

Committees of the public body v. administrative committees.

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What is a “Public Meeting”

     A “prearranged discussion of the public business of the public body by a majority of its members.” Must occur in person No “round robin” or serial discussions E-mail exchanges between the members Members must be physically present for purposes of quorum or to vote  Deliberations v. mere fact-finding 10 © 2014 Bricker & Eckler LLP

Three Requirements of Open Meetings Act

1.

2.

3.

Meetings must be open to the public Public notice of the meeting is required Minutes must be kept 11 © 2014 Bricker & Eckler LLP

1. Openness

   Meetings must be open to the public Location, location, location Deliberation and votes on official business must be open  Does not require allowing the public to speak 12 © 2014 Bricker & Eckler LLP

2. Proper Notice

  Notice must be in writing and given in advance Regular Meetings – regularly scheduled – time and dates established by rule 13 © 2014 Bricker & Eckler LLP

2. Proper Notice

 Special Meetings – 24 hour advance notice to media – Purpose can include “and any other business that comes before the Board” – Cannot discuss any purpose that is not included in the notice – Notice procedure established by rule  Emergency Meetings – Immediate notice to media required – Cannot hold emergency meeting because of unavailability of board members 14 © 2014 Bricker & Eckler LLP

3. Minutes

 Minutes of all public meetings must be kept – Prepared promptly, filed and maintained – Must reflect general subject matter discussed 15 © 2014 Bricker & Eckler LLP

Scenario 1

 The Port Authority has always sent notice of public meetings by mail to those who have requested notice. You have just joined the Board of the Port Authority, what should you do?

A. Continue with notice as the Board has done in the past.

B. Start noticing the community by newspaper advertisements.

C. Establish a rule that the meetings will be noticed on the Port Authority’s website, listing the time and place of the meeting.

16 © 2014 Bricker & Eckler LLP

Scenario 2

 In a time of emergency, what is acceptable for a public body?

A. Conduct a meeting immediately after notifying the media that a public meeting will take place.

B. Conduct a meeting of the body by teleconference.

C. Conduct a meeting at a place other than the regularly noticed location.

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Executive Session

  Getting in and out of executive session – Majority vote – Reason reflected in the minutes – Vote must occur in public Economic Development Exceptions  New exception for economic development matters under R.C. 121.22(G)(8); effective September 29, 2013   Port Authorities, R.C. 4582.091(B) CIC's, R.C. 1724.11(B) 18 © 2014 Bricker & Eckler LLP

Executive Session

  Port Authorities, R.C. 4582.091(B)  Port Authority may go into executive session to consider confidential economic development information submitted by an employer or potential employer. “No other matters should be considered during the closed session.” CIC’s, R.C. 1724.11(B)  CIC's may go into executive session to consider confidential economic development information submitted by an entity in connection with the relocation, location, expansion, improvement, or preservation of the entity’s business, or in pursuit of one or more of the purposes under R.C. 1724.01(B) for which the CIC is organized.  The CIC should not consider any other information during the closed session.

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Executive Session

   Have to be in an open meeting to enter into an executive session A roll call vote is required Resolution must cite the portion of R.C. 121.22(G) that allows the body to enter into executive session 20 © 2014 Bricker & Eckler LLP

Executive Sessions

 Proper basis for executive session (R.C. 121.22(G)): – Personnel actions and collective bargaining; – Property purchases; – Court actions; – Security arrangements and emergency response protocols; – Consultation with legal counsel; –

Protect confidential business information included in economic development assistance applications

; and – Other confidential information.

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

Executive Session for Economic Development Matters

General Economic Development Matters (ORC 121.22(G)(8): – A public body may go into executive session to consider confidential information related to: 1) the marketing plans, specific business strategy, production techniques, trade secrets, or personal financial statements of an applicant for economic development assistance, or 2) to negotiations with other political subdivisions respecting requests for economic development assistance,

provided that both of the following conditions apply

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Executive Session for Economic Development Matters

 Two Things Must be Present: 1) The information must be directly related to a request for economic development assistance: a) that is to be provided or administered under any provision of Chapter 715., 725., 1724., or 1728. or sections 701.07, 3735.67 to 3735.70, 5709.40 to 5709.43, 5709.61 to 5709.69, 5709.73 to 5709.75, or 5709.77 to 5709.81 of the Revised Code, or b) that involves public infrastructure improvements or the extension of utility services that are directly related to an economic development project, and 23 © 2014 Bricker & Eckler LLP

Executive Session for Economic Development Matters

 2) A unanimous quorum of the public body must determine, by a roll call vote, that the executive session is necessary to protect the interests of the applicant or the possible investment or expenditure of public funds to be made in connection with the economic development project.

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Executive Session

   Can’t take action in executive session Only discuss the issues covered by your motion for executive session Never go into executive session for “personnel” purposes. You must list the specific portions of the exception that apply.

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Executive Session

 Take care with conferences with attorney – Pending or imminent litigation – Fact-finding sessions with attorney — no deliberations — not a meeting at all   Body can invite anyone into executive session Records shared in executive session will be public records unless a specific exception applies  Public body has the burden to prove that executive session was for one of the excepted topics.

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Penalties for Violation

 Any actions taken in violation of open meetings laws could be rendered null and void. Example: – Resolution that created a school district was invalidated due to violations of the Open Meetings Act. – Piekutowski v. South Central Ohio Educational Service Center Governing Bd., 2005 Ohio App. LEXIS 2691, 2005-Ohio-2868 (4th Dist. June 3, 2005) 27 © 2014 Bricker & Eckler LLP

Public Records Act

 R.C. 149.43 Three Requirements: – Public records must be “promptly prepared and made available for inspection to any person at all reasonable times during regular business hours.” – “Make copies available at cost, within a reasonable period of time.” – “Maintain public records in a manner that they can be made available for inspection in accordance with this division.” 28 © 2014 Bricker & Eckler LLP

What is a “Record”

  Information on a fixed medium Created, received or sent under the jurisdiction of the public office  Documents the organizations, functions, policies decisions procedures, etc, of the office 29 © 2014 Bricker & Eckler LLP

Does Everything Need to Be Turned Over???

 No! But start with the presumption that everything is a public record, but: – Is it really a record?

– Is there a specific exemption? 30 © 2014 Bricker & Eckler LLP

What is Not a Record?

 Does not document the functions of the office: – Home addresses – Personal information (your checkbook, etc.) – Personal notes kept for your own use and not shared with others – Transient information 31 © 2014 Bricker & Eckler LLP

What is Specifically Exempt?

  R.C. 149.43 as well as other code provision – Exemptions under state law must be narrowly construed – Common exemptions: attorney-client privilege; medical records; tax information; trial preparation “Records the release of which is prohibited by state or federal law.” R.C. § 149.43(A)(1)(v).

 Social security numbers.

State ex rel. Beacon Journal Publishing Co. v. City of Akron

, 70 Ohio St.3d 605 (1994).

 Attorney-client privileged information.

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What is Specifically Exempt?

 Economic Development Exceptions: – JobsOhio (R.C. 149.43(A)(1)(bb), R.C. 187.04(C)) • Records created by or received by JobsOhio – CIC’s (R.C. 1724.11) • Information remains confidential until the entity commits in writing to proceed with project. All financial and proprietary information, and other trade secrets remain confidential as it is exempt.

– Port Authorities (R.C. 4582.091) • Information remains confidential until the Port Authority takes action to proceed with project. All financial and proprietary information, and other trade secrets remain confidential as it is exempt.

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What is Specifically Exempt?

 Trade Secrets: 1333.61(D): – “any business information or plans” or “financial information” that satisfies two statutory criteria: • It derives independent economic value, actual or potential, from not being generally known or ascertainable. • It is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.

– Public entities can have trade secrets.

State ex rel. Besser v Ohio State Univ.

, 89 Ohio St.3d 535 – Public entities must take steps to protect the trade secrets of others 34 © 2014 Bricker & Eckler LLP

Scenario 3

 Who may attend a public body’s executive session?

A. Anyone invited by the body.

B. Only elected officials.

C. Only elected officials and public employees “essential to the discussion.” 35 © 2014 Bricker & Eckler LLP

Scenario 4

 What is the proper motion to move into executive session?

A.

B.

“I move to go into executive session to discuss the promotion of an employee.” “I move to go into executive session to discuss personnel matters.” C.

“I move into executive session to discuss one of the points identified by Ohio Revised Code as appropriate for executive session.” 36 © 2014 Bricker & Eckler LLP

Public Records Requests

 General Information 1. Any person can request a public record.

2. A public records request should be specific and describe what is being sought. 37 © 2014 Bricker & Eckler LLP

Public Records Requests

 General Information 3. You may deny an ambiguous or overly broad request, but you must allow the requestor to revise his request by telling him: a) b) the manner in which the records are maintained by the public office; and how the records are accessed in the ordinary course of the public offices' or persons' duties.

4. The records custodian is under no duty to seek out and retrieve records that are of specific interest to the requestor where the method of organizing records makes such a task impracticable. 38 © 2014 Bricker & Eckler LLP

1. “Prompt” Inspection

   Without delay / with reasonable speed – Redactions – Consultations with counsel During normal business hours Cannot charge for inspection 39 © 2014 Bricker & Eckler LLP

2. Maintaining Records

  Organized for ready inspection and copying Make readily available to the public a copy of the current records retention schedule 40 © 2014 Bricker & Eckler LLP

3. Providing Copies

  “Reasonable period of time” – Depends on facts and circumstances of request “At Cost” – Actual cost only – generally 5 to 10 cents per page – No personnel time – Mailing costs can be recovered – Has no duty to provide free copies to any individual who cannot or will not pay for them, regardless of indigent status.

– May require an individual to pay for the copies in advance of the copying. 41 © 2014 Bricker & Eckler LLP

What is a proper request?

    Does not need to be written Handling vague or voluminous requests Requestor’s motive is irrelevant Undue burden is not an excuse 42 © 2014 Bricker & Eckler LLP

Responding to Requests

 Upon request, copies of public records shall be provided within a reasonable amount of time. R.C. § 149.43(B)(1).

– A “reasonable amount of time” is determined based upon the circumstances of the request.

– Has no duty to provide free copies to any individual who cannot or will not pay for them, regardless of indigent status.

– May require an individual to pay for the copies in advance of the copying. 43 © 2014 Bricker & Eckler LLP

Responding to Requests

 Upon request, copies of the records shall be transmitted by mail or other method of delivery.  An individual may specify, with certain limitations, that the copies of the public records be in a specific medium.  There is no requirement to create a new record to fit the public records request. If the information is in a format (e.g. computer) that would allow a tailored response to the request, then it exists in that form and must be disclosed in that form.

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Responding to Requests

 Redaction and withholding documents – If a public body redacts a record, the person responsible for the record must notify the person requesting documents of any redaction made, or make the redaction plainly visible.

– Any redaction of information pursuant to a public records request is deemed to be a denial of the request "except if federal or state law authorizes or requires a public office to make the redaction.” – Upon ultimate denial of a request, the public body is required to provide an explanation, including citations to legal authority, for its denial of a request.

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Responding to Requests

 Undue burden or expense is not a valid reason for refusing to comply with a public records request.

State ex. rel Beacon Journal Publishing Co. v. Andrews

, 48 Ohio St.2d 283 (1976).  Where a public records request unreasonably interferes with the discharge of a records custodian’s duties or endangers the safety of the record, however, the public agency may not be required to comply with the request. 46 © 2014 Bricker & Eckler LLP

Responding to Requests

 Prohibition on limiting or conditioning availability of records based on use or identity.

– Unless required or authorized by specific state or federal law, a public office cannot limit or condition the availability of public records by requiring disclosure of the requesting person’s identity or the intended use of the requested public record. Any attempt to do so is considered a denial of the request. 47 © 2014 Bricker & Eckler LLP

Responding to Requests

 Limits on asking for records requests in writing. – Previously could ask but could not require that request be placed in writing.

– Under HB 9, a public body can ask that a request be placed in writing only if two conditions are met: a) It may do so only after disclosing that a written request is not mandatory, and that the requesting person may decline to reveal his or her identity or the intended use of the information; and b) The public body may ask that the request be placed in writing when a written request or disclosure of the identity or intended use would benefit the requesting person by enhancing the ability of the public office to identify, locate or deliver public records. 48 © 2014 Bricker & Eckler LLP

Penalties for Record Destruction

 How much can a public agency be fined for destroying a public record?

– $1,000 penalty per record • "Record," may be a single document within a larger file of documents as well as a compilation of documents.

• "Violation," as used in R.C. 149.351(B), means any attempted or actual removal, mutilation, destruction, transfer or damage to a public record that is not permitted by law.

– $860,000 punitive damage award for the destruction of records. (Kish v. Akron, 5:00CV 2047) 49 © 2014 Bricker & Eckler LLP

Penalties for Record Destruction

  Each violation subjects the public body to: – Injunctive relief – Award of attorney's fees – A civil forfeiture of $1,000 for each violation Avoiding the Kish problem — only destroy records in accordance with your properly approved retention schedule or application for one-time destruction of obsolete records.

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Scenario 5

 Which of the following items is not a public record?

A. Port Authority meeting minutes.

B.

Chairman Vasquez’s meeting schedule.

C. Chairman Underwood’s personal notes from a meeting with the County Economic Director.

D. An e-mail between Chairman Tusk and his aide, Ms. Barnes.

51 © 2014 Bricker & Eckler LLP

Scenario 6

 What two steps must a private entity take to protect information as a trade secret?

A. Prove the information qualifies under the Ohio Revised Code as “any information that derives value by not being generally known.” B. Show the information has been copyrighted or trademarked.

C. Take affirmative steps to protect the information.

D. Demonstrates that no one outside of the corporation has any knowledge as to the content of the information.

52 © 2014 Bricker & Eckler LLP

Questions?

Contact Chris Schmenk [email protected]

614.227.2323

or Maria Armstrong [email protected]

614.227.8821

or Katie Johnson [email protected]

614.227.2349

Bricker & Eckler LLP

53 © 2014 Bricker & Eckler LLP