LEGAL Report
PUBLIC RECORDS LAW DENNIS L. PERGRAM OAESA Legal Counsel
This article is designed to provide a very brief overview of some of the parts of the public records law that, due to litigation, are continually changing. For purposes of the public records law, a “record” includes any document, device, or item, regardless of physical form or characteristic. This could include an electronic record, created or received by or coming under the jurisdiction of any public office of the state or its political subdivision that serves to document the organization, functions, policy, decisions, procedures, operations, or other activities of the office. A public record means any record kept by any school district pertaining to the delivery of educational services (Section 149.43 of the Ohio Revised Code). At first glance, the definition of a public record may not seem to be ambiguous or complex; however, a great deal of litigation has resulted from disagreements over what constitutes a public record. Section 149.43(E) further provides that all elected officials (school board members), or their appropriate designees, shall attend training approved by the Attorney General. Each board of education must also adopt a public records policy in compliance with Section 149.43 and shall distribute the public records policy to the employee of the board of education—who is the records custodian, records manager, or otherwise has custody of the records—and shall require that employee to acknowledge receipt of the copy of the public records policy. With respect to the availability of the public records policy, section 149.43(E) provides, in relevant part, as follows: The public office shall create a poster that describes its public records policy and shall post the poster in a conspicuous place in the public office and in all locations where the public office has branch offices. The public office may post its public records policy on the internet website of the public office if the public office maintains an internet website. A public office that has established a manual or handbook of its general policies and procedures for all employees of the public office shall include the public records policy of the public office in the manual or handbook. There is a long list of records that does not constitute public records, and those records are identified in three pages of the statute, along with definitions and a catch-all that prohibits a release of records prohibited by state or federal law which would include, but not be limited to, Family Educational Rights and Privacy Act of 1974 (FERPA) and Ohio’s Privacy Act (Chapter 1347 of the Ohio Revised Code). Consequently, it is understandable why board members or their designees must receive training and designate one person as the records custodian. The statute further provides that to facilitate broader access to public records, the public office or records custodian shall organize and maintain public records in a manner that can be made available for inspection or copying, and upon request, 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. If, however, the requestor of a public record has made an ambiguous or overly broad request, or has difficulty in making a request for copies or inspection of public records, or if the board of education or the records custodian cannot reasonably identify what public records
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