Credit: Jim Noelker
Credit: Jim Noelker
These are some examples of how Ohio lawmakers and courts in recent years have chipped away at Ohio public records laws. Other examples include cutting off media access to coroners' records, shielding from the public how much college athletes are paid by public universities and more.
The week of March 16 is Sunshine Week, when this news organization and others across the nation raise awareness of Sunshine Laws. Sunshine Laws are protections for citizens to ensure government agencies are transparent about what is going on inside their offices. Journalists use the laws to request documents, track agency decisions and report stories.
Last year, a Dayton Daily News investigation found nearly nearly 30% of government agencies across our nine-county region were found to be out of compliance with Ohio public records and open meetings act laws in state audits in recent years.
This year, we look at recent changes to Ohio laws that in some cases increased government transparency, but also undermined it.
“There’s been retrenchment,” said Jack Greiner, an attorney and leading authority on Ohio Sunshine laws. “Ohio, for many years, has been very good about transparency and public records ... but some of these other developments have maybe unintended consequences.”
Last year, for example, local state Rep. Thomas Hall, R-Madison Twp., proposed legislation to shield certain public service workers' timesheets from public view. He said his concern was protecting those workers, but it had unintended consequences.
The bill was amended to preserve journalists' access to the records after a Dayton Daily News report listing 11 examples of how public employee timesheet and payroll records have been used by this news outlet and others to investigate concerns such as public employees misreporting their time, working a second job while on the clock or taking excessive vacation time or overtime.
There has been progress in some regards, open government advocates note.
“We are in a better place today than 10 years ago in some regards,” said Monica Nieporte, executive director of the Ohio News Media Association, citing a process which allows citizens and journalists to file with the Ohio Court of Claims for an expedited resolution when there is a denial of a public record.
“However, I feel we took a major step backwards this past year when the legislature allowed local governments to run public notices on their own websites instead of in newspapers where they have been found for two centuries. There seems to be a never-ending list of exemptions to public records law. We have opposed any that are unreasonable and will continue to do so.”
Marsy’s Law
Marsy’s Law is intended to give victims of crimes “meaningful and enforceable constitutional rights,” equal to defendants in criminal cases, including the right to be notified of court proceedings. Ohio voters passed the legislation in 2017, with 83% in favor. As of August last year, 12 states have passed a Marsy’s Law.
In April 2023, the Ohio General Assembly expanded upon Marsy’s Law by requiring law enforcement to redact from case documents the “name, address, or other identifying information” of a crime victim.
Following this, some Ohio police departments, including in this region, started heavily redacting records related to officer-involved shootings, declaring the officer who fatally shot someone is a “victim.”
Kettering police in response to a records request from this news outlet last year provided completely blacked out pages, redacting not just the names of the officers but descriptions of what they saw and did before, during and after the shootings.
Credit: Josh Sweigart
Credit: Josh Sweigart
“Marsy’s Law has a whole lot of good things,” Greiner said. “The thing is, Marsy’s Law ... tells courts what they have to do with their records. And there’s law that suggests that courts are the ones that should decide what to do with their records.
“In my mind, that’s a step backwards, because I think that there’s a tremendous public interest in when police are engaged in a shooting that resulted in the death of the criminal.”
Do police officers fall under the definition of “victim” under Marsy’s Law? The legislation doesn’t say. But, the Ohio Supreme Court heard arguments in February on whether or not they should.
A key sticking point in the debate is whether Ohio voters would have understood the word “victim” to include police officers when they were at the ballot box, documents show.
“There is, in the Constitution, a definition of victim. It is pretty broad, and it certainly doesn’t exclude police officers, but ... the Supreme Court has said when you are interpreting a constitutional provision that was voted on by voters, you have to think about what did the voters understand, and what was the voters' intent?” Greiner said.
‘A Chilling Effect’ Police body cam charges
In January, Gov. Mike DeWine signed a bill to allow Ohio police to charge Ohioans up to $75 per hour of video requested under the state’s public record law, capped at $750.
The law is intended to help departments recoup labor costs associated with video records requests, but the law could cost Ohio citizens and journalists hundreds of dollars to receive police body cams or cruiser videos that are a regular tool in both holding police accountable and publicly defending their decisions.
The provision was never publicly vetted in the Ohio legislature. Instead, it was folded into House Bill 315 via a private conference committee among a handful of lawmakers and voted out in the final hours of the last General Assembly.
DeWine explained that, because the $75-an-hour charge was a permissive fee and not a mandatory one, he felt comfortable allowing the provision to enter state law.
“I strongly support the public’s — and the news media’s — right to access public records,” DeWine said at the time. “The language in House Bill 315 doesn’t change that right.”
However, the now-added costs of obtaining video records may have a “chilling effect” on news organizations — particularly smaller, local ones, Greiner said.
“There’s obviously concern that it’s gonna put a burden on the media in general, and probably some of the smaller media outlets in particular,” he said. “Certainly, it’s just one more expense for already-stretched entities.”
Many local municipalities have said they have no plans to change how much they charge for body cam footage. Others, including Oakwood and Tipp City, have said they will. The Miami County Sheriff’s office will only charge commercial operations who “exploit” public records for profit.
Coroners' records
Another place where transparency took one step forward and two steps back is access to county coroners' records.
In 2016, the Cincinnati Enquirer and Columbus Dispatch sought access to the Pike County autopsies of the eight members of the Rhoden and Gilley families who were murdered in an execution-style shooting in April that year.
That kicked off several lawsuits that initially resulted in the courts agreeing that the media had limited access to preliminary autopsy reports during a police investigation.
But law enforcement officials expressed concern that giving the media access to such information could compromise an investigation. And lawmakers in 2023 changed the law to cut off all access to coroner’s office records during an open investigation.
So why would the media need access to coroner’s office records? It’s another tool for government accountability.
The Dayton Daily News used this provision in 2019 to view photos and reports showing the extent of abuse an neglect suffered by 10-year-old Takoda Collins, who died after suffering extreme abuse by his father.
A Dayton Daily News investigation of Takoda’s case exposed gaps in the system that was supposed to protect him. Our investigation found the boy died despite at least half a dozen agencies and institutions in three states being at some point involved in protecting his wellbeing.
This led to a state law passed in 2022 to improve communication between agencies involved in protecting children against child abuse and neglect.
Elsewhere in Ohio, news agencies in 2022 used coroner’s office records to reveal the details of an officer-involved shooting. Access to such records found at least 60 bullet wounds suffered by Jayland Walker, 25, who was killed after Akron police officers fired at least 90 times.
“These numbers helped make the Walker shooting a national news story,” reported Cleveland TV station WKYC. “However, the number of wounds may not have been known to the public without journalist access.”
Juvenile court records opened
Last October, the Ohio Supreme Court ruled in a 5-2 decision that a state law mandating the blanket sealing of records in juvenile delinquency cases violates the Ohio Constitution, holding that the public have a “presumptive right” to the transcripts of those court cases, Greiner said.
“In other words, the state had to satisfy showing of a compelling need that withholding was the least restrictive method available,” he said.
The case was related to a Hamilton County Juvenile Court case in 2022, in which a police officer said he witnessed a minor standing over an assault victim and continuously firing a gun.
A Hamilton County judge had denied the Cincinnati Enquirer’s request to review the court transcript, citing the state law that directed her to seal the records, once she found the 13-year-old was not delinquent.
‘Under the hood’: Citizens’ right to know
Public records laws aren’t meant to be used only by journalists.
Communities trust government officials to make decisions on their behalf, but in order for community members to “fulfill our role” in a democracy, they must understand why and how government officials make those decisions, said Julio Mateo, a Dayton human rights activist and human factors psychologist.
“In order to fulfill our role as active participants in our democracy, we need to be able to look ‘under the hood’ and scrutinize public decisions beyond what government officials choose to share with us,” he said. “We may choose not to look under the hood, but it is absolutely critical that we are allowed to.”
The best way to preserve citizens' rights to public access is to use those rights, and to use them often, Mateo said.
“Some public officials may see it as hostile that you are asking for receipts when they say something in a public meeting. But in my experience, good public officials actually understand and encourage civic involvement and participation.”
