Public records are just that

Some people are experts on things they know very little about.

Some people reach a conclusion without bothering to let the facts cloud their better judgment.

Those people are clearly entitled to their opinions, but not quite so entitled to their own set of "facts."

Years ago, American Journalism Review provided an insightful article on the release – or lack thereof – of public information.

A story entitled "The Information Squeeze" by Charles Layton outlined the depths to which some public officials will fall in order to avoid giving the public the information that is rightfully theirs.

Layton found one reporter, Seth Rosenfeld of the San Francisco Chronicle, who waited 17 years for information from the Federal Bureau of Investigation on its actions at the University of California at Berkeley.

Rosenfeld made a request under the Freedom of Information Act for the information in 1981. It took rulings by five different federal judges to get the FBI to comply.

This 17-year delay demonstrates not a single act of evasive tactics by one bureau employee; rather, it demonstrates an institutional practice and pattern of secrecy and deception.

Granted, an argument can be made – and it has been made – that in the post-Sept. 11 world of international terrorism federal agencies like the FBI and CIA must operate with a degree of privacy, free from those annoying media intrusions. Fair enough.

But what about the common, day-to-day requests for public information?

Surely, there's no difficulty in picking up a copy of simple arrest records, criminal reports, court filings, various public records and the like, right?

Wrong.

Layton relates the story of former Dayton Daily News editor Max Jennings. The Dayton Daily News published an award-winning series on military courts-martial in the 1990s.

Layton writes: "The paper's struggle to get information under FOIA (Freedom of Information Act) was so frustrating and time-consuming that it led Jennings to declare, in 1996, 'The FOIA simply doesn't work most of the time for journalists. There are few news organizations and reporters who have the patience, money and determination to work through what seems an inevitable series of appeals, requests and other roadblocks."

Many others in the media share Jennings' perspective.

It is learned early on in the newsroom that challenging a government body for information often leads to a dead-end — not because the request isn't legitimate, but because of the time involved to pursue the records.

Douglas Clifton, one-time editor of Cleveland's Plain Dealer and head of the American Society of Newspaper Editors' freedom of information committee, says many newsrooms place so little emphasis on freedom of information "that reporters accept as a given that they are going to be shut out of open records."

That's unfortunate – not only for journalists, but for all citizens who pay the salaries of public officials, pay for their offices, their copiers, their computers, their log books, their filing cabinets and their paper clips.

Part of the reason some public officials are reluctant to turn over the people's records is that, in many cases, they are not aware of their legal obligation to do so. In other cases, politics trumps legalities.

Layton provides a few examples:

• When Jay Young of Pennsylvania's Altoona Mirror asked a clerk for a public record, the clerk called the police. (No kidding. A public official actually called the police because a taxpaying citizen had the audacity to ask for a public record! You can't make this stuff up.)

• After the sheriff of Edwards County, Illinois, balked at releasing a public document, a reporter took out a copy of the state's open records law and showed it to him. The sheriff wadded it up, threw it away and said, "I don't have to tell you nothing."

• When John McCormick of the Des Moines Register asked to see gun permit records in Knoxville, Iowa, a sheriff's deputy told him, "None of the sheriff's department records are public."

Have there been similar instances of non-compliance locally? You bet.

The Ohio’s Public Records Act states: "Every public office must promptly prepare and make available for inspection and copying all public records at all reasonable times, during regular business hours."

Over the years, I have learned, too, that often times a specific report has been delayed due to more pressing matters. A former Scioto County sheriff (who was once unduly crucified by a newspaper) asked me: "Do you want me to fill out a report for you or go stop a man on the west side from beating up his wife?"

Point made.

Still, it is important from time to time for local newspapers to explain why public records requests are an integral part of our free society.

Writing on the subject for The Columbus Dispatch, Randy Ludlow said: "Public records allow (citizens) to make educated decisions in many ways every day about their lifestyles, pocketbooks and government.

"A family searching for its first house visits the county auditor's website to research selling prices in a neighborhood. A taxpayer drops by the school treasurer's office in order to obtain district spending figures to determine his vote on a proposed tax levy. A mother visits the sheriff's office or goes online to see if any new sex offenders have moved near her children's school.

"When caretakers of public records strive to be open and provide easy access, they can make a difference in Ohioans' lives while allowing the governed (that's you and me) to keep check on elected officials and public employees. But when gatekeepers unreasonably or unlawfully delay and deny such records, the intention of Ohio's public records law is obscured."

In the same 2004 report by the Ohio Coalition for Open Government, Tom Breckenbridge of The (Cleveland) Plain Dealer wrote this Q&A on Ohio's public records law:

Question: What is a public record?

Answer: Virtually any record kept by a public office, whether it's paper, computer file, film or any other form. That means a mountain of information is available, from the mundane to the momentous. It ranges from the pay of a school bus driver to the governor's travel expenses.

(Such openness is a pillar of a free and just society, said David Marburger, a lawyer who represents newspapers on public records issues.) Q: Who can request public records?

A: Anyone, of any age. You don't have to be an Ohio resident.

Q: Are public records readily available?

A: Theoretically, they should be. The law requires public offices to "promptly" prepare records for inspection during regular business hours for free. The interpretation of "promptly" varies. Courts hold it to mean that records be made available without unnecessary delay, Marburger said.

Q: What should I expect when I ask for a public record?

A: Public agencies are usually protective of their records and officials may not be well versed in open-records laws. You might be asked to identify yourself and state why you are asking for the records, even though you're not required to supply such information. You may also be asked to fill out a request form. Again, the law does not require that requests be made in writing.

On an audio recording of an Oct. 15 public records request at the Highland County commissioners' office, it seems pretty clear that a county employee or two insisted that public records requests be put in writing – in order to "comply" with the county's new "policy."

Unlike some of the local "experts," I was in attendance when the commissioners' legal counsel informed the office that a public records request was not a legal mandate in the state of Ohio, and that local law could not supersede state law.

In fact, if one would read the county's public records request form – which is on the commissioners' website, he or she would see, clearly stated on the form, that it is not mandatory. Nor is it mandatory for the person seeking public records to identify himself (or herself).

The county's own form states: "A written request for records is not mandatory and you may decline to identify yourself."

Nonetheless, a public official repeatedly insisted the records request policy "is the law." No, it isn't.

I certainly was not present Monday when a county official felt it necessary to call the police over an alleged "disturbance," after a public records request.

But I did speak with the officer. I did speak with the parties in search of public information. And I did listen to the audio recording of the incident. By no means does this make me an expert on what transpired.

However, I may have a more qualified opinion than some, especially after a few followup interviews.

The bottom line is this: Much more time and energy and ill will have been spent on the matter than would have been required to simply provide the information as requested.

I'll close with this observation – one which I've made a few times before: One of the best public officials I've ever worked with in regard to the release of public information is Adams County Prosecutor David Kelley.

David's office has been consistently open and accessible, and he has advised other offices to follow the established guidelines in making public information available.

He puts it very simply. "When someone asks me who my boss is, I tell them "the 30,000 people living in Adams County."

Thus, are the demands on a public official. It is not an easy task, to be sure. But it is part of the job.

To those requesting public records: First, be nice. Be pleasant. Be understanding of cuts in budgets, reductions in staff, etc. As someone told me a long time ago, honey is easier to swallow than vinegar.

Rory Ryan is publisher of The Highland County Press.