Saturday, February 07, 2009

Public Records Act Requires that Public Records Be Public

It's always frustrating to me anytime I find myself agreeing with HamCo GOP Chair Alex Triantafilou when he rants against local Democrats. But he's right on the money when he argues that the Cincinnati School Board has crafted a wrong-headed, probably illegal plan to shield applicants for superintendent from public scrutiny.

The Board is once again searching for a superintendent. As the Enquirer reports, the Board has decided that it will receive all applications in a post office box rented specifically for applications. The Board's plan is to leave the applications in the box, removing them as late as possible. It will then take "a reasonable time" to respond to Public Records Act requests for copies of the applications; presumably, "reasonable" means "after the decision has been made by the Board."

This is a bad idea that will probably subject the Board to a mandamus action it cannot win. The Ohio Public Records Act (R.C. 149.43) is broadly written and contains only specific, enumerated exceptions. Our Supreme Court has ruled time and time again that there exists in the law a presumption of disclosure; a public records custodian (such as the Board) has the burden of showing why a record should not be disclosed. And the Board knows that once it's in possession of an application for the superintendent job, it's a public record subject to disclosure. That's why it came up with this scheme to delay "possession" of the materials.

The Public Records Act ensures Ohio citizens that government is at least somewhat transparent. In my civil rights practice, I routinely use the PRA to gather records to determine whether a client has a claim that I can help him or her pursue; the records often provide valuable insight into the actions of government officials or the process by which they arrived at a particular decision. Journalists use the law to gain access to documents for stories for which politicians won't go on the record. Researchers use it to comply statistics.

There may be good reasons to shield superintendent applications from public view. The last time you looked for a job while you were employed, didn't you worry about your current employer learning of your job search? The potential for a superintendent candidate to be outed to his or her employer is a strong disincentive to apply. But our legislature has not recognized that interest as compelling enough to justify an exception to the PRA. And until it does, our school board needs to comply with the law.

Arguing that records in the Board's mail box aren't public because the Board doesn't really "possess them" is a lot like the Bush administration arguing that Gitmo detainees have no rights because they aren't on "American soil." The Supreme Court laughed that defense out of court, and the Ohio Supreme Court, if called upon to do so, will laugh the Board's twisted semantics right out of Columbus. Let's not dilute the laws that are meant to protect our rights as citizens.

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