Access with Attitude: An Advocate’s Guide to Freedom of Information in Ohio

By David Marburger and Timothy B. Tyson

For those who find themselves in a battle for public records, Access with Attitude: An Advocate’s Guide to Freedom of Information in Ohio is an indispensable weapon. First Amendment lawyer David Marburger and investigative journalist Karl Idsvoog have written a simply worded, practical guide on how to take full advantage of Ohio’s so-called Sunshine Laws.

Journalists, law firms, labor unions, private investigators, genealogists, realty companies, banks, insurers—anyone who regularly needs access to publicly held information—will find this comprehensive and contentious guide to be invaluable. Marburger, who drafted many of the provisions that Ohio adopted in its open records law, and coauthor Idsvoog have been fighting for broader access to public records their entire careers. They offer field-tested tips on how to avoid “no,” and advise readers on legal strategies if their requests for information go unmet. Step by step, they show how to avoid delays and make the law work.

Whether you’re a citizen, a nonprofit organization, a journalist, or an attorney going after public records, Access with Attitude is an essential resource.

• Language: English
• Publisher: Ohio University Press
• Release date: Mar 6, 2011
• ISBN: 9780821443590

David Marburger

David Marburger specializes in First Amendment, libel, and media law. He received his JD from the University of Pittsburgh and his BS from Syracuse University. Mr. Marburger drafted and conceived many of the provisions that the Ohio legislature adopted in Ohio's Public Records Act.

Book preview

Praise for Access with Attitude

"Access with Attitude is not just a road map. It’s more like a GPS, with pinpoint directions on the best way to get the records you need . . . and why you should not take ‘no’ for an answer."

—Jeff Hirsh, WKRC-TV, Cincinnati

I am so pleased to have had the opportunity to read this book. I am a busy practitioner in the area of public access, and I try hard to stay on top of the legal issues related to this area. But having now finished the book, I know more than before I started reading it. The legal advice is invaluable, but what sets the book apart are the practical tips. I suspect I will use this book on a daily basis in the coming years. I recommend it to lawyers, publishers, editors, reporters, and any citizen interested in government transparency.

—Jack Greiner, outside counsel to the Cincinnati Enquirer

"Access with Attitude is a practical and insightful guide for dealing with an issue that vexes journalists across the state: how to hold governments accountable. Marburger and Idsvoog have created a useful reference for those forced to play an increasingly costly and time-consuming game of hide-and-seek with the public’s information."

—David Giles, associate general counsel, E. W. Scripps Co.

"This book will open doors for anyone who wants information from an Ohio government. Journalists. Civic organizations. Parents with children in schools. Any taxpayer who’s curious about how his money is spent. Dave Marburger is Ohio’s foremost expert on public records, and with this book in your hands, you’re an expert, too. Access with Attitude doesn’t just tell you how to get records, it tells you what obstacles to expect and how to get around them."

—Chris Quinn, metro editor, Cleveland Plain Dealer

"Access with Attitude has both clarity and depth. It provides every citizen, every journalist, every lawyer, and every government office with a clear and straightforward guide to making Ohio’s Public Records Act work. It has examples of requests, tips on dos and don’ts, and lists of words to avoid and to include. Anyone who is contemplating making a request for government records will benefit from its clear and insightful suggestions: you’ll write a better request and get the records you seek with greater speed and ease, if you follow these authors’ advice.

The book also offers insight into recent developments in Ohio’s public records law—from the shifting definition of a ‘record,’ to the complexities of seeking records from a ‘quasi-private’ entity. It exposes the wavering line between protecting privacy and producing public records, which the Ohio legislature and the Ohio Supreme Court have tried to draw. The book explains these complexities in a way that offers not only clarity for the layperson, but also a precise, well-supported, and sophisticated legal analysis that lawyers will turn to again and again. If you are going to have one book about how to access government records in Ohio, then Marburger and Idsvoog’s Access with Attitude is the one you want on your office shelf."

—Susan Gilles, John E. Sullivan Designated Professor of Law, Capital University Law School

"Access with Attitude is a great reference and tool for journalists or anyone seeking public records. This book is a practical guide with real-world examples and clear explanations in plain language. This is like having your own personal open records lawyer at your fingertips with lessons and strategies for seeking public records."

—Roy S. Gutterman, professor of communications law and director of the Tully Center for Free Speech at the S. I. Newhouse School of Public Communications at Syracuse University

"Access with Attitude provides an outstanding source of information for those seeking records in Ohio. And the strategies, tips, and overall approach it maps out provide a practical guide for anyone preparing to go into battle for access to public documents anywhere."

—Mark Horvit, executive director of Investigative Reporters and Editors (IRE) and associate professor at the Missouri School of Journalism

I’ve seen David Marburger in action . . . his zealous and persuasive arguments on behalf of the First Amendment and courtroom access are a reflection of his skill and experience and could serve as a template for the right of access not just in Ohio but across the country.

—Grace Wong, senior field producer, In Session on truTV

Every Ohioan who cares about government and the public’s right to know should read this book.

—Brent Larkin, retired editorial page editor, Cleveland Plain Dealer

Thanks to David and Karl for doing the heavy lifting and developing a one-stop resource for those who care what their government is doing. This book is a well-organized, complete, and thoughtful guide to public access. I wish only that the keepers of our records would read it.

—Karen C. Lefton, former in-house counsel to the Akron Beacon Journal and now outside counsel

"As we watch the people of Libya, Egypt, and beyond risk their lives for a more democratic government, we should remind ourselves that those citizens are fighting for the rights that Karl and Dave explain in this book. This is the sort of book journalists must read and nonjournalists should read. But we have to take a step beyond that. Don’t just read this book, use it to pry open hidden documents. Use it to expose lavish and wasteful government spending. Use it to uncover croneyism and backroom politics. Use it to connect the people with their elected and appointed leaders. Use it to strengthen democracy. Journalists who don’t aggressively use public records are not much better off than those who can’t."

—Al Tompkins, senior faculty at the Poynter Institute, attorney, and author of Aim for the Heart

"There is not a smarter, better, or more relentlessly tenacious defender of the public’s right to know than David Marburger. Now, the average citizen, the solitary blogger, the reporter for a rural weekly, or anyone who wants government records has David’s 30-plus years of experience on call. Access with Attitude is a must for the bookshelf of anyone who believes that information collected and held by our government belongs not to the government, but to us."

—Mike Philipps, president and CEO, Scripps Howard Foundation, and former editor, Cincinnati Post

This is an amazing compendium of freedom of information rules, regulations, and practices—and ways to navigate successfully through them. The most seasoned of journalists would find this an indispensible companion. This is exactly the book that public officials don’t want you read.

—Susan Lavery, executive producer, Radio Free Asia

ACCESS WITH ATTITUDE

ACCESS WITH

ATTITUDE

AN ADVOCATE’S GUIDE

TO FREEDOM OF

INFORMATION

IN OHIO

David Marburger

and Karl Idsvoog

With a foreword by

Doug Clifton

David Marburger and Karl Idsvoog will donate the royalties from the sale of Access with Attitude to nonprofit organizations that support investigative reporting.

Ohio University Press, Athens, Ohio 45701

www.ohioswallow.com

© 2011 by Ohio University Press

All rights reserved

To obtain permission to quote, reprint, or otherwise reproduce or distribute material from Ohio University Press publications, please contact our rights and permissions department at [phone] or [phone] (fax).

Printed in the United States of America

Ohio University Press books are printed on acid-free paper ™

20  19  18  17  16  15  14  13  12  11    5  4  3  2  1

Library of Congress Cataloging-in-Publication Data

Marburger, David.

Access with attitude : an advocate’s guide to freedom of information in Ohio / David Marburger and Karl Idsvoog ; with a foreword by Doug Clifton.

p. cm.

Includes bibliographical references and index.

ISBN 978-0-8214-1939-7 (pb : alk. paper) — ISBN 978-0-8214-4359-0 (electronic)

1. Public records—Access control—Ohio. 2. Public records—Law and legislation—Ohio. 3. Freedom of information—Ohio. I. Idsvoog, Karl. II. Title.

KFO462.6.A25M37 2011

342.77108’53—dc22

2010043891

Contents

Foreword

Preface

Acknowledgments

Introduction

Chapter 1.   Unlawful Obstacles: Conditions That Officials Can’t Impose

Chapter 2.   Fees and Other Conditions That Officials Can Impose

Chapter 3.   Strategies for Requesting Public Records

Chapter 4.   Electronic Public Records

Chapter 5.   How to Fight Delay and Denial without Suing

Chapter 6.   Law Enforcement Investigatory Records: Know the Limits of the Barrier That People Encounter Most

Chapter 7.   The Stealth Exemption

Chapter 8.   Privacy

Chapter 9.   Court Records

Chapter 10. Privatizing Government

Chapter 11. Records Retention: Limits on Administrators’ Discretion to Destroy Records

Chapter 12. Suing for Access to Public Records and Winning

Chapter 13. Counsel for Counsel: The Public Records Act and Discovery

Conclusion

Appendixes

Notes

Index

Table of Cases

About the Authors

Foreword

Access with Attitude could not have come at a better time. Its authors, David Marburger, one of the Ohio bar’s leading First Amendment advocates, and Karl Idsvoog, a veteran journalist, teacher, and Marburger’s go-to investigator, bring a combined fifty years of experience to the struggle for government transparency. Their guide to Ohio’s open records law reflects the sum of that experience and fills a void that grows deeper with each passing day.

Since the passage of the first sunshine law more than fifty years ago, print and broadcast journalists have been the principal defenders of the citizen’s right to know. Armies of reporters pored over the work of state and local government, fulfilling the role of surrogate citizen implied by the free press guarantee of the First Amendment. And when a citizen was confronted by a balky or resistant bureaucracy, he or she often turned to a reporter for help in freeing a record or opening a closed meeting.

For most of the past forty years, it was routine for newspapers and broadcasters to loose the Marburgers of the First Amendment bar on those bureaucracies to pry open locked doors and closed files. Paying legal fees was part of a newspaper’s cost of doing business. Often all that was required was a phone call or a letter spelling out the law’s requirements and outlining the consequences of not following them. Sometimes, however, the persuasive letter from counsel was not persuasive enough, and the dispute matured into a full-blown lawsuit, fought all the way to the Ohio Supreme Court.

Review the footnotes in Access with Attitude for a better understanding of just how vigorously the fourth estate has protected the right to know. Case after case pits a news organization—the Plain Dealer, the Beacon Journal, the Blade, the Dispatch—against a recalcitrant government agency, and the great majority result in a strengthening of the case law supporting openness.

But what once was certain now has become dubious. The armies of reporters have been decimated by unprecedented economic stress in the news business. Fewer reporters are asking fewer questions and seeking fewer documents. Formerly robust newspapers and broadcast outlets struggle to stay solvent. Every expense in every budget is challenged. The line item for legal fees that used to run into six figures at some newspapers has dropped to near zero.

That means that the public is in danger of losing its greatest ally in the fight for honest and open government, for the unchallenged, unwatched public office may slip quickly into sloth, inefficiency, or corruption. And it also means that the public must do more of its own watchdogging or pay the price in bad, unresponsive government.

Access with Attitude is a heroic effort to level the playing field once again. It gives the interested citizen all the tools needed to do battle with those who would cut off or reduce public access or stand in the way of a pointed inquiry.

This guide is written with the authority that can be gained only by a lifetime of fighting—in the courtroom and in city hall. Marburger and Idsvoog have done it all. And their beefy, fact-filled book reflects that on virtually every page.

Even veteran reporters who use the open access laws daily will find gems of insight in this monumental work. If, when this book was begun in 2005, its target audience was the journalist, today that audience is civically active citizens confronted by a secret-keeping government and nearly unaided by their traditional allies from the press.

Guides to the open records laws published by the secretary of state and the attorney general have merit, but they are, after all, prepared by the very agencies the access laws are designed to oversee. And they are bland and ponderously written, to boot.

By contrast, this book offers an outsider’s perspective, is brilliantly organized, is written in easy-to-understand prose, and bristles with practical tips on how to win access fights.

During my eight years as editor of Cleveland’s Plain Dealer I speed-dialed Marburger’s phone number whenever an access problem loomed. Access with Attitude isn’t quite that, but it’s the next best thing. It belongs on every bookshelf in Ohio.

Doug Clifton

Editor, Cleveland Plain Dealer and Miami Herald (retired)

Editor & Publisher’s Editor of the Year in 2003

Preface

Do you think that the men who wrote our Constitution would say today, We’ve made it—the people don’t need to be vigilant anymore; they can wholly trust the men and women they’ve elected to govern? If so, you don’t need this book.

When Virginia’s convention was debating whether to adopt the Constitution, its principal draftsman, James Madison, told the assembled delegates: I believe there are more instances of the abridgment of the freedom of the people by gradual and silent encroachments of those in power than by violent and sudden usurpations. More than thirty years later, Madison wrote: A popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or perhaps both. Knowledge will forever govern ignorance, and a people who mean to be their own Governors, must arm themselves with the power knowledge gives. Madison was not discussing a need for open records laws in either instance. But both sentiments explain the societal value of laws that compel those entrusted with governing to open to the public the records that they have collected in managing the public’s affairs.

Consonant with those ideals, Access with Attitude arose from zeal. But it also arose from frustration.

Zeal and Ideals

We first met in the late 1980s in our professional roles—Idsvoog exposing official misdeeds as an investigative reporter, Marburger offering legal advice. As Idsvoog’s television news stories exposed more and more official sloppiness and worse, Marburger fashioned the legal weaponry that Idsvoog needed to expose it. Marburger was a journalist before becoming a lawyer for journalists, and saw things through Idsvoog’s eyes. Mutual friendship and respect resulted.

We grew up in the 1960s when young people questioned authority, resisted social convention, and pursued the kinds of ideals that talk radio today abhors. We celebrate many of those values. In the spirit of those committed young people, we devoted scores of weekends and very late nights as professionals accepting no fee to pursue our ideals—free speech, a free press, and the useful, accountable, and selfless exercise of government power.

People in government have called us plenty of names—zealous, dogged, and intense being among those that (we think) do not defame us. Access with Attitude is not neutral; it advocates. Our values drive this book.

We see freedom of information laws through the prism of Madison’s ideals—as potentially exposing official oversights, absenteeism, arrogance, and abuses. But we also see those laws as potentially exposing the good that officials do—courageous judges, innovative and fiscally responsible mayors, heroic police officers, and self-sacrificing social workers. Discovering all of that requires reading public records.

Frustration

Over nearly three decades, separately and together, we have encountered persistent and surprising gamesmanship by public-sector lawyers and their client-administrators in resisting requests by journalists and other citizens for records.

As frustrating as that was, naïveté in the fourth estate became more frustrating. Most journalists—especially reporters for large metropolitan newspapers—are intrepid enough. Many have become well acquainted with their legal rights.

But tenacity and knowledge of the law aren’t enough. Many journalists—and many of their lawyers—fail to realize why some of their methods don’t work well. They repeat the same tactical mistakes that play into the hands of public-sector lawyers and administrators who seem to enjoy the intellectual challenge of finding legal ways to obfuscate. Journalists’ errors ultimately defeat or at least undermine their efforts to raise questions about what the truth is and diminish the benefits of knowing the law.

We found ourselves instructing journalists again and again about the same practical strategies needed to overcome official resistance to legitimate inquiries.

We became dismayed by the failure of some advocates to recognize legal arguments more potent than the ones they were using—or arguments that might win the pending case but would send the law ultimately in the wrong direction. We grew increasingly disappointed by judicial legal doctrine that seemed analytically unsound and the uncritical acceptance of that doctrine by the bar.

We decided to team up to write a book to share our combined fifty-plus years of experience, ideas, and analyses with journalists, ordinary citizens, lawyers representing them, and even judges. We stepped up our efforts to complete this book when it became clear that cascading economic difficulties had elevated news organizations’ needs for a practical guide partly to supplant using resources for legal juggernauts to enforce their rights to government information.

That’s why this book exists.

Acknowledgments

The authors would not have written this book without the inspiration of others.

I thank my wife, Kathy, who went along with my spending so much time preparing this book; my graduate school advisor, Professor Emeritus James Hoyt, and my undergraduate professor, Tom Beell, who have spent their careers doing for others what they did for me: instilling the desire to fight for public records; Investigative Reporters and Editors for its commitment to training journalists on how to get and analyze public data; and Kent State professors Tim Smith and Mark Goodman, who continually impress upon their students the importance of pursuing public records.

K.I.

In addition to Karl Idsvoog, I thank some of the reporters and editors who have pursued government information with special gusto: Susan Goldberg, Doug Clifton, Tom O’Hara, Bob McAuley, Jim Neff, Dave Davis, Joan Mazzolini, Chris Quinn, the late Gary Webb, and the late Bob Snyder—all currently with or alums of the Cleveland Plain Dealer; Mike Philipps, Paul Knue, and Randy Ludlow, alums of the now-defunct Cincinnati Post; the gruff Paul Jagnow, former managing editor of the Youngstown Vindicator; and the truly intrepid former owner and publisher of the tiny Fostoria Review Times, Clarence Pennington, for whom I won my first case to enforce the public records act.

I also thank the Ohio Newspaper Association and members of former Ohio attorney general Lee Fisher’s open government task force for pushing to improve Ohio’s public records act, as well as the owners, publishers, and top editors of the Plain Dealer, the E. W. Scripps Company, the Toledo Blade, the Youngstown Vindicator, the Columbus Dispatch, the Akron Beacon Journal, the Canton Repository, and the Cincinnati Enquirer for devoting valuable resources to enforcing Ohio’s open government laws.

Special thanks go to the staff at Baker & Hostetler LLP—Nancy Otto, Tina Koons, and Don Ticknor—whose technical expertise with publishing software and willingness to work especially hard made the layout, length, and revising of this book possible.

And most of all, we thank the government lawyers and administrators whose creative ways of saying No, while arguably staying within the law, caused us to innovate to try to overcome them.

D.M.

Introduction

Access with Attitude is a pointed, feisty, practical, and sometimes very analytical guide to making Ohio’s freedom of information law work. It comes from decades of field testing by two outspoken advocates with emphatic, spirited points of view. This book is for journalists, private investigators, genealogists, labor unions, lawyers, paralegals, curious citizens, civic-minded citizens, and others who use Ohio’s public records act to get information—or who want to use it but aren’t sure how.

This guide will tell you about the law, but not with rote descriptions. Too often, the search for public records becomes a sort of tug-of-war in which just knowing the law isn’t enough and avoiding no isn’t easy. If you have to do battle, you ought to be armed. This guide offers wide-ranging practical advice for overcoming obstacles when seeking government records. It emphasizes the areas of public records law that people encounter most, but it doesn’t try to address every statutory provision or each of Ohio’s more than three hundred laws that remove government information from public view.

In addition to offering practical strategies, Access with Attitude critically analyzes Ohio Supreme Court jurisprudence. It aims to spur new ideas in appellate judges who decide public records cases and in lawyers who enforce the Public Records Act on behalf of their clients.

Judges shape the law when they resolve disputes at the appellate level. Not only must they resolve the cases before them, but they also must evaluate whether the rationale and legal principles that they adopt will yield just results that work well in future cases. Despite our obvious perspective as advocates, we try to evaluate Ohio Supreme Court precedents objectively, in the hope that our critique may cause the judiciary to rethink some of its jurisprudence. For lawyers who prosecute cases under the act, our critiques suggest stepping back from unquestioning acceptance of some of the court’s reasoning and recognizing its flaws. Lawyers who see those flaws may be able to persuade the court to change direction.

Although we welcome thorough reading, you need not read all the pages seriatim to follow our arguments or our advice. Most of the sections are designed to provide self-contained, easily identifiable advice. Before you jump to a section, however, you may need to acquaint yourself with the basics. That’s what the remainder of this introduction is designed to do.

What Rights Does the Act Give You?

The Ohio Public Records Act gives you the largely unconditional right to see and get copies of recorded information. That right applies to information held or controlled by every agency of Ohio state government; every county, township, municipality, and other local government in Ohio; every public school district in Ohio; and every college and university owned by Ohio.

The act mandates that all public records be open to the public.¹ If it’s a public record, it’s open. You have a right to see these records in person and a right to receive copies by mail, e-mail, fax, or other ordinary delivery, as a later chapter explains.

How Do You Find the Act?

The Ohio Public Records Act is section 149.43 of the Ohio Revised Code, which is a collection of all laws enacted by the Ohio General Assembly. Every county and municipal law library has up-to-date copies of the Ohio Revised Code, and some public libraries also have it. In-house counsel for every public-sector law office has it, as do most private law offices.

In this guide, R.C. means the Ohio Revised Code, and R.C. 149.43 means section 149.43 of the code, the Public Records Act.

Court Decisions That Interpret the Act

Understanding your rights under the act requires more than just reading the words on the page. It requires staying abreast of court decisions that interpret those words, especially decisions of the state’s highest court, the Ohio Supreme Court. Those interpretations resolve lawsuits to enforce the act and influence greatly how the act works.

Using the Act to Gain Access to Court Records

Sealing a court record means that the judge has issued an order barring anyone from seeing it except the judge, other court personnel, the immediate litigants, and their lawyers. Although the Ohio Supreme Court has applied the Public Records Act to invalidate judges’ sealing of orders, we discourage you (and your lawyer) from invoking the act to gain access to sealed court records. Chapter 9 explains why.

Federal Government Agencies

Ohio’s public records act does not apply to any agency of the U.S. government. The Freedom of Information Act, passed by Congress, governs your right to see records kept by federal agencies.² This guide covers only your right to see the records of state and local governments in Ohio and so does not concern itself with the federal Freedom of Information Act.

Public Office

Ohio’s public records act is part of Chapter 149 of the Ohio Revised Code, which addresses government records. Another law within this chapter defines public office as, in effect, synonymous with agency of state or local government. The Public Records Act covers all public offices: every county, township, city, village, public school, public college and university, and agency of state government.³ This guide uses the terms public office and agency interchangeably, and it uses the