Saturday, March 1, 2014

Ohio Supreme Court kills Ohio's Public Records laws

Please do not think this blog entry is hyperbole or over-stating the case.  As will be noted below, other objective commentators agree with the content of this piece.   
Last week, Ohio's Supreme Court effectively judicially repealed Ohio's Public Records Law, a perfectly well-written piece of legislation of which Ohio's Courts have made mincemeat due to their overt hostility to the words it contains.   
It is a sad direction for Ohio public policy, but it is a more sad direction for the integrity of the Ohio judiciary as a group that is to interpret the laws, not write them. 
We also note that COAST's attorneys represented the Plaintiff in this action, which is why we waited for third parties to speak before writing on this topic.    
Last week, the Ohio Supreme Court dealt a death blow to the Ohio Public Records law, and severely damaged the credibility of the judiciary in the process.

In two cases captioned Emilie DiFranco v. South Euclid, the Court said that attorneys fees are not available to Plaintiffs in public records cases so long as the defendant in those cases produces the records before the final judgment in the case is rendered.  In other words, after months and months of stonewalling before a suit is filed, and months and months of litigation, as long as the defendant in records cases produces records before the Court issues an order, the Court may not order attorneys fees to the Plaintiff's counsel.  This decision is notwithstanding the clear language of the statue that fees are mandatory in instances in which the public agency provides no response tot he request whatsoever within a reasonable period of time.

The practical consequence is that no ordinary citizen will ever pursue public records in court ever again.  They cannot afford to.  Moreover, the decision is utterly intellectually dishonest, being a contorted reading of the statute to make it say what it does not say, and certainly what the legislature did not intend.  Justice Kennedy dissented, but the other six Justices should simply be ashamed of themselves.  They knew they were judicially repealing a law rather than interpreting it, but they did it anyway.

In the two cases in question, Plaintiff DiFranco waited, respectively, six months and eight months for the public records sought with no response before filing her Complaint.  According to the Columbus Dispatch, the decision:
could make it financially impossible for people of ordinary means to fight government officials who stonewall them on public-records requests.
The Ohio Newspaper Association explained the facts behind the decisions:

The city stonewalled the citizen requesting the information for months, and she even had to get an accountant to show that records the city claimed it didn’t have really existed.
COAST has aggressively used Ohio's Public Records law to hold local and state government accountable.  For example, last summer we hammered Mayor Mallory, Roxanne Qualls, and the Port Authority over the secretive and outrageous parking deal with a serial release of public records that exposed the many sleazy sides to that transaction.  Without those disclosures, not only would the Parking Deal have gone through, but the Mayoral election and Council election well could have turned out differently.

COAST will say this once, but firmly.  We have a Republican Ohio Supreme Court that has enacted this gross injustice not just to a Plaintiff, but to an important law.  We have a Republican House and a Republican Senate.  We have a Republican Governor.  If they refuse to fix this, they do not deserve to continue to serve in office, period.

Read the two decisions here and here.  (By the way, the Court agonized over both decisions for nearly a year after full briefing before releasing these horrendous decisions.)  Read the Ohio Newspaper Association's warning call about the decisions here.  Read the Columbus Dispatch's editorial on the topic here.


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