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Access with Attitude

An Advocate's Guide to Freedom of Information in Ohio

David Marburger

Publication Year: 2011

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, journalist, or attorney going after public records, Access with Attitude is an essential resource.

Published by: Ohio University Press

Title Page, Copyright

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pp. i-iv

Contents

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pp. v-xii

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Foreword

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pp. xiii-xiv

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...

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Preface

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pp. xv-xvii

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...

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Acknowledgments

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pp. xix-

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...

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Introduction

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pp. 1-6

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...

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1: Unlawful Obstacles

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pp. 7-11

Public offices and their administrators sometimes take it upon themselves to impose unlawful conditions on your right to inspect or get copies of public records. For example, an agency may refuse to provide public records unless you • give your home address; • give your Social Security number; • show your driver’s license; • give your birth date; • say why you want the record or what you intend to do with it; or...

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2: Fees and Other Conditions That Officials Can Impose

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pp. 12-17

If the records that you request contain exempt information, an agency can take a reasonable amount of time to examine the records and delete (or “redact”) the exempt information before showing the records to you.¹ What’s reasonable depends on what you’ve requested and the ease with which the agency can produce it. There’s no fixed time period.

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3: Strategies for Requesting Public Records

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pp. 18-43

Make It Hard for Administrators to Blame You for Their Own Inaction Don’t give government administrators an excuse to dodge your request. Make it hard for them to blame you for their delay or to deny your request.” This chapter shows you how. 3.2 Put It in Writing What Writing Does for You Putting your request in writing, dating it,...

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4: Electronic Public Records

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pp. 44-56

You Have a Right to Inspect Electronic Public Records Even when a public office has public records only in electronic form, you have the right to inspect them. You don’t have to buy copies. Section 9.01 of the Ohio Revised Code allows a public office to store its records on any medium. So an agency doesn’t have to keep paper records: it can store everything on microfilm or on a computer...

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5: How to Fight Delay and Denial without Suing

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pp. 57-76

Timing Can Be Everything The value of information lies in the use that you can make of it, and whether you can make use of it often depends on how quickly you can get it. As the Ohio Supreme Court has acknowledged, “When records are available for public inspection and copying is often as important as what records are available.”¹ A lawsuit to force an agency to give you access to records takes a...

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6: Law Enforcement Investigatory Records

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pp. 77-93

A Broad Exemption Records that qualify as “confidential law enforcement investigatory records” are not public records.¹ Broken into digestible parts, the exemption applies to • any record • that pertains to • a law enforcement matter • of a criminal, . . . civil, or administrative nature, • but only to the extent that • the release of the record • would create • a high probability of • disclosure of

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7: The Stealth Exemption

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pp. 94-104

The Crux of the Stealth Exemption What we call the “stealth exemption” is the statutory definition of “record,” which agencies can use to exclude information from public view—even if kept for the purpose of managing government. If the recorded information doesn’t fit the definition of “record,” it isn’t a “public record.” If it isn’t a “public record,” you don’t have a right to see it.

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8: Privacy

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pp. 105-128

Food to Some Is Poison to Others Everyone agrees that we all deserve some degree of privacy in what people know about us. But we don’t agree about which information about us should be private. Police think that disciplinary complaints against them should be private. School boards think that the identities of candidates for school superintendent should be private. Crime victims...

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9: Court Records

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pp. 129-152

If Applied to Courts, the Public Records Act Could Close Much of What Is Routinely Open Today Court Records Are Open, but Not Because of the Public Records Act Virtually every record filed in court in civil and criminal lawsuits is freely available to you over the counter at the clerk’s office almost immediately upon filing. But that’s not...

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10: Privatizing Government

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pp. 153-187

Privacy and privatizing are unrelated. “Privacy” refers to sensitive information about individuals. “Privatizing” refers to the public sector’s use of a privately owned organization to perform a service for which the government ultimately is responsible. Instead of using their own employees, agencies sometimes contract with private organizations to provide services. The private firms...

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11: Records Retention

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pp. 188-204

State Agencies Must Have Schedules Mandating How Long They Have to Keep Their Records Ohio’s Department of Administrative Services, known as the DAS, administers a records program for all agencies in the executive branch of state government.¹ State Agencies Must Seek DAS Approval to Destroy Records Each state agency has to submit to the...

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12: Suing for Access to Public Records and Winning

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pp. 205-239

What to Expect in Time and Money If You Sue No matter how obvious you think it is that you are right, a lawsuit to enforce your rights under the Public Records Act costs lots of money and takes lots of time. It will not be a slam dunk. What to Expect to Pay for a Lawyer to Prosecute Your Case You might pay tens of thousands of dollars to go from start to finish in Cleveland, Columbus, and Cincinnati,...

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13: Counsel for Counsel

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pp. 240-243

Civil Discovery and the Public Records Act When lawyers represent clients who sue a public office for something other than records, the Public Records Act can help you dig up records and information to help your case. You can go outside the usual channels of discovery, even after the discovery period is over. Attorney Edward Gilbert sued Summit County on behalf of a former...

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Conclusion

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pp. 244-245

By now you may have reached much the same conclusion that transcendental philosopher Henry David Thoreau expressed in the mid-nineteenth century: “I have not read far in the statutes of this Commonwealth. It is not profitable reading. They do not always say what is true; and they do not always mean what they say.”¹ But whether you’re a reporter, a gadfly, a gumshoe, or just curious,...

Appendix 1

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pp. 246-264

Appendix 2

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pp. 265-266

Appendix 3

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pp. 267-

Appendix 4

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pp. 268-

Appendix 5

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pp. 269-270

Appendix 6

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pp. 271-276

Appendix 7

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pp. 277-280

Appendix 8

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pp. 281-

Appendix 9

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pp. 282-287

Notes

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pp. 289-321

Index

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pp. 323-327

Table of Cases

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pp. 329-340

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About the Authors

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pp. 341-342

Karl Idsvoog, now on the journalism faculty at Kent State University and an instructor of foreign journalists in developing countries for the U.S. Department of State, studied journalism at the University of Wisconsin. He earned bachelor’s and master’s degrees there during the early 1970s and eventually studied at Harvard University as a Nieman fellow. Before joining Kent State, Idsvoog spent more...


E-ISBN-13: 9780821443590
Print-ISBN-13: 9780821419397

Publication Year: 2011

Research Areas

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Subject Headings

  • Public records -- Law and legislation -- Ohio.
  • Freedom of information -- Ohio.
  • Public records -- Access control -- Ohio.
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