Home Legal News Michael J. Hostler Public Records

Public Records

I submit to you that the greatest difference between employees in the public sector and the private sector employees is two words…PUBLIC RECORDS.

The Ohio Revised Code covers public records in ORC 149.43.

Section (B) (1) provides:

Upon request and subject to division (B)(8) of this section all public records responsive to             the request shall be promptly prepared and made available for inspection to any person           at all reasonable times during regular business hours. Subject to division (B)(8) of           this section, upon request, a public office or person responsible for public records shall     make copies of the requested public record available at cost and within a reasonable       period of time. If a public record contains information that is exempt from the duty to permit public inspection or to copy the public record, the public office or the person responsible for the public record shall make available all of the information within the public record that is not exempt. When making that public record available for public        inspection or copying that public record, the public office or the person responsible for             the public record shall notify the requester of any redaction or make the redaction plainly             visible. A redaction shall be deemed a denial of a request to inspect or copy the redacted information, except if federal or state law authorizes or requires a public office to make the redaction.

The section above demonstrates that “any person” can make a public records request, ABOUT YOU.  (Division (B) (8) deals with incarcerated individuals).  Redacted material is outlined within the Code and deals primarily with people in safety forces.  However, the vast majority of your record, including your income, cannot be redacted.

On the other hand, if any of you enter a local machine shop, Wal-Mart, or grocery store and demand to look at the personnel file of any employee, let alone demand to look at the wages paid to the employees, you will most likely be visited by one of your co-workers for a ride to the local jail (or mental health facility).

Your decision to enter public employment has put a very serious dent into your right to privacy.  This sacrifice is not shared by our private sector friends.  This subject of public records is one of the reasons our benefits are indeed different from the private sector. However, our privacy does have some protections under the law.

In the case Hall v. City of Cookeville, 157 Fed. Appx. 809, The United States Court of Appeals for the Ninth Circuit has held that police officers' right to privacy ensures a fundamental liberty interest in preserving their lives and the lives of their family members, as well as preserving their personal security and bodily integrity. Where the release of private information places an individual at substantial risk of serious bodily harm, possibly even death, from a perceived likely threat, the magnitude of the liberty deprivation strips the very essence of personhood.

The Court gave some protections in this case. However, everything that protects the public sector employee today is constantly being challenged and chipped away at by the press, special interest groups, and indeed some of our own politicians.

Ohio Revised Code Ann. 149.43 (2012) which addresses public records is so important (and complex) that when I look at it on Lexis/Nexus, there are 180 pages of text concerning this issue.  More importantly, there are many references to cases, along with other sections of the revised and administrative codes pertaining to this issue.  I have listed a few that are germane to our membership.

§ 149.43. Availability of public records:

(A) As used in this section:

(1) "Public record" means records kept by any public office, including, but not limited to, state, county, city, village, township, and school district units, and records pertaining to the delivery of educational services by an alternative school in this state kept by the nonprofit or for-profit entity operating the alternative school pursuant to section 3313.533 of the Revised Code. "Public record" does not mean any of the following:

(a) Medical records;

(3) "Medical record" means any document or combination of documents, except births,     deaths, and the fact of admission to or discharge from a hospital, that pertains to the           medical history, diagnosis, prognosis, or medical condition of a patient and that is      generated and maintained in the process of medical treatment.

Please note: A Court can issue an order to release some medical information if it is determined the information is necessary.

h) Confidential law enforcement investigatory records;

(2) "Confidential law enforcement investigatory record" means any record that pertains to             a law enforcement matter of a criminal, quasi-criminal, civil, or administrative nature, but            only to the extent that the release of the record would create a high probability of        disclosure of any of the following:

(a) The identity of a suspect who has not been charged with the offense to which the        record pertains, or of an information source or witness to whom confidentiality has been         reasonably promised;

(b) Information provided by an information source or witness to whom confidentiality      has been reasonably promised, which information would reasonably tend to disclose the      source's or witness's identity;

(c) Specific confidential investigatory techniques or procedures or specific investigatory    work product;

(d) Information that would endanger the life or physical safety of law enforcement           personnel, a crime victim, a witness, or a confidential information source.

Perhaps the most important exception to Public Records follows:

(p) Peace officer, parole officer, probation officer, bailiff, prosecuting attorney, assistant   prosecuting attorney, correctional employee, community-based correctional facility       employee, youth services employee, firefighter, EMT, or investigator of the bureau of      criminal identification and investigation residential and familial information;

(7) "residential and familial information" means any information that discloses any of the following about a peace officer…,” ***(Note: the use of” … “is deletion of the           numerous employee positions listed in (p) above).***

(a) The address of the actual personal residence of a peace officer…, except for the state                    or political subdivision in which the peace officer… resides;

(c) The social security number, the residential telephone number, any bank account, debit card, charge card, or credit card number, or the emergency telephone number of, or any          medical information pertaining to, a peace officer…;

(d) The name of any beneficiary of employment benefits, including, but not limited to,      life insurance benefits, provided to a peace officer…;

(e) The identity and amount of any charitable or employment benefit deduction made by the peace officer’s… compensation unless the amount of the deduction is       required by      state or federal law;

(f) The name, the residential address, the name of the employer, the address of the            employer, the social security number, the residential telephone number, any bank account, debit card, charge card, or credit card number, or the emergency telephone number of the spouse, a former spouse, or any child of a peace officer…;

(g) A photograph of a peace officer who holds a position or has an assignment that may    include undercover or plain clothes positions or assignments as determined by the peace            officer's appointing authority.

These are some of the protections offered to our members in this section of the ORC.  However, there are exceptions and challenges to most (if not all) of them.  An example follows:

(9) (a) Upon written request made and signed by a journalist on or after December 16,       1999, a public office, or person responsible for public records, having custody of the         records of the agency employing a specified peace officer… shall disclose to the            journalist the address of the actual personal residence of the peace officer…, and, if the     peace officer's… spouse, former spouse, or child is employed by a public office, the             name and address of the employer of the peace officer's…, spouse, former spouse, or        child. The request shall include the journalist's name and title and the name and address          of the journalist's employer and shall state that disclosure of the information sought       would be in the public interest.

Section (9) (a) is how a reporter ends up at your front door and sticks a microphone in your face. However, they still do not print or show the address.

A major cause of us losing the protections provided by the Code is the employee himself.

The Hall v. City of Cookeville case started from an incident involving a family that was on vacation.  The father left his wallet on top of his car at a gas station.  He drove out and soon thereafter realized his mistake.  He simply pulled off the road to retrieve the wallet.  However, a police officer pulled up on the car.  The door of the family car was still open, and the family’s dog jumped out of the car.  The officer shot the dog. Of course this story was captured on the officer’s dashboard camera and it went viral. The actual case revolved around the officer’s privacy and the release of records that could put him or his family in “Harm’s Way”.

The officer complained about the information released by the City.  However, the real problem was outlined by the Court when it wrote:

“…After this highly-publicized event, Hall became the subject of intense media attention.             Following a meeting with Shipley, Hall's attorney, and others, Hall agreed to be interviewed by a reporter from a Nashville news station on January 9th. In order to    bolster Hall's appearance in the interview, the City released portions of his personnel file   relating to Hall's disciplinary actions and commendations to the reporter. The record is             unclear whether this release was done with Hall's knowledge or consent”. (Emphasis         added).

Because the Officer went public, the Court then stated:

“…Hall's penchant for media attention led to the voluntary release of his personal information into the public eye. Because he engaged the media, and in doing so released           virtually all of the information released by the City through his personnel file, there was      no increased risk to Hall or his family based solely on the release of his personnel file.”            (Emphasis added).

In this case, the officer actually was interviewed (voluntarily) on the “Today Show”, thus giving his information to the entire world.

As you go to work each day, just remember:

We all know there are public records request.

We all know what is basically allowed to be released.

We all better know that in order to preserve the few exceptions/protections we have in the Public Records legislation, we must be careful of what we write on reports, documents and social media (Twitter, Facebook…).  Be aware of what you say and how you act in the view of the public, and most importantly, stay away from the press.

Last Updated (Saturday, 15 December 2012 13:03)