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Two universities. Two stymied public records requests. It was a unique opportunity for the I-Team to test drive two new methods for getting public agencies to comply with public records laws.
First, some background.
There is no agency or entity responsible for enforcing Ohio’s public records laws. If a member of the public feels that a public agency is not complying with the law, the only real recourse he or she has is to hire an attorney and sue the agency. This is time-consuming, cost-prohibitive and somewhat self-defeating since the agency can defend itself with taxpayer money.
So Ohio Attorney General Mike DeWine in 2012 created a public records mediation program to provide another option. The program claims successes. This year, there have been 50 requests for mediation, 18 of which were resolved by the mere involvement of the AG's office. Four were resolved in mediation and seven are pending.
But the program has its limitations. The biggest: The Ohio Attorney General represents all state government entities, so it would be a conflict of interest to mediate a dispute involving state government.
Enter Ohio Auditor Dave Yost, who this spring launched the Sunshine Audit program, which members of the public can turn to if the AG's office turns them down. Yost's office will hear the complaint and issue an opinion that, if the public office doesn't comply with, would show up as a finding in the agency's next audit.
Twenty-one people have requested sunshine audits according to records obtained from the auditor’s office. So far, the auditor’s office hasn’t found any agency to be in violation of state laws, though several entities handed over records after the auditor’s office got involved.
A tale of two universities
The I-Team opted to try out these tools this year with records’ requests involving two local schools: the University of Dayton and Wright State University.
The very day in May the Ohio Supreme Court ruled that private university police records fall under Ohio public records laws, the I-Team requested investigative files from several high-profile cases. The University of Dayton is a private university, but the ruling meant that under Ohio law its police department had to abide by Ohio's public record act.
But in July, when some records were released, some were so heavily redacted that they listed no suspect, no victim, no witnesses and not even enough of a detailed narrative to determine the extent of the alleged crime. The university cited federal law in claiming this information was exempt from disclosure.
Meanwhile, in June — in the midst of an investigation into why top-level administrators at Wright State were put on paid leave — the I-Team requested contracts and payments between WSU and a local consulting company. Wright State is a public university, and has long been held accountable to the state open records rules.
Two months later, we were told the records were still “in legal review.”
Mediation optional
On Aug. 3, the I-Team filled out a request for mediation with the Attorney General’s Office over UD’s heavy redactions to police records. Within 48 hours we received a call from the AG’s office, which then called UD to inquire about mediation.
“If they tell me they don’t want to participate, that is unfortunately the end of the line for us,” said the AG office representative.
A log maintained by the AG’s office lists 14 times when a public office simply refused to take part in mediation.
In this case, though, UD officials agreed to mediation. Both sides provided records, and a mediation session is scheduled for Sept. 3 between this newspaper’s attorneys and attorneys from UD. The mediation will start as a conference call and, if that doesn’t resolve the situation, may convert to shuttle diplomacy by the mediator with the goal of striking a compromise.
Sunshine audit has bugs
On Aug. 4, the I-Team went to the Ohio Auditor’s Office to request a sunshine audit of whether WSU’s response to our records request was within a “reasonable amount of time,” as required by state law.
We filled out an online form, which gave us an error message. We told the auditor’s office about the problem and tried again a week later. Still wasn’t working. On Aug. 14, the online form worked.
Three days later, we received a form letter stating we had to go through the AG’s office mediation first — a step we didn’t undertake because we knew the AG’s office couldn’t mediate with WSU because, as noted above, an entity of the state. So we applied for mediation that day, were immediately told the request didn’t qualify, and sent that denial to the auditor’s office.
But, as it turns out, the online form still had problems. After filling it out two more times, we emailed our information directly to someone from the auditor’s office on Aug. 20.
Wright State provided the records the next day.
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