By Jeffrey A. Roberts
CFOIC Executive Director

In 2018, this blog reported on a then-two-year-old process in Ohio that gives requesters of public records a low-cost way to fight denials in court. A new research paper prepared for the National Freedom of Information Coalition looks at how well the process works.

In Colorado, filing a lawsuit in district court is the only way for journalists and the public to challenge denials — there is no administrative appeal mechanism in the Colorado Open Records Act. Journalists here have some access to legal help for open-government matters because of the Colorado Freedom of Information Coalition and the Reporters Committee for Freedom of the Press’ Local Legal Initiative.

But challenges from ordinary citizens aren’t all that common, perhaps because it can be intimidating to take on the government and the initial cost of a lawsuit — even though a prevailing plaintiff is entitled to attorney fees and court costs. So maybe that’s a reason to consider alternatives for dispute resolution such as the now-eight-year-old Ohio program.

In his paper, Mitch McKenney, associate professor of journalism at Kent State University, wrote that the Ohio process “doesn’t replace the existing option of filing a mandamus action in other Ohio courts, but rather creates an inexpensive alternative with tight, court-enforced deadlines to resolve common disputes.”

For just $25, someone denied a record can start an action in the Court of Claims by filling out a one-page form, “no lawyer needed.” The process begins with mediation “and if that doesn’t resolve it, it goes to a special master for a recommendation. For actions that persist until a judge issues a ruling, that decision can be appealed. Court costs — typically under $100 — can be assessed to the requester or public agency respondent. Importantly, discovery isn’t permitted and neither party can recover attorney fees or statutory damages.”

The process isn’t designed to handle “complex situations,” McKenney explained, but parties can attach supporting affidavits, and the special master can ask for additional information. The Court of Claims is required to dismiss any complaint that involves a new legal issue “of substantial public interest,” directing the requester instead to a higher court.

McKenney examined 413 cases filed under Ohio Revised Code 2743.75 since mid-2019. Requesters successfully obtained records in 243 of those cases: 49 during “triage” prior to mediation, 108 during formal mediation, 53 after a special master’s report and recommendation, 24 with a judicial decision and nine in some other manner.

For cases resolved in a public agency’s favor — meaning the requester didn’t get records — 60 percent came after a special master’s report and recommendation and nearly 20 percent were the result of a judicial decision.

About 5 percent of all decisions since 2016 have been appealed, including one in which the Ohio Supreme Court ordered the state health department not to provide a COVID death records database to the Columbus Dispatch.

Of all Court of Claims cases filed since 2016, one-fourth were against law enforcement agencies. Twenty percent were against municipalities, 18 percent the state of Ohio, 17 percent public universities and school districts, 7 percent counties and 15 percent other entities.

“Generally, the more local the government, court records suggest the less often officials provided records as they should have,” McKenney’s paper says.

McKenney also surveyed complainants about their experiences with the Court of Claims, including 61 people who had successful outcomes and 33 who did not. Most of those with successful outcomes were “happy” with the process, he reported. “More than one said it ‘levels the playing field’ between citizens and public officials.”

Said one complainant: “It worked for me and without the process I would have never received the documents. The city could care less about following the law if they know it would cost the individual hundreds to thousands of dollars in legal fees. The city law department was unresponsive to me until the Court of Claims became involved.” (In Ohio, a court has the discretion to award attorneys’ fees in cases where the plaintiff obtains a writ of mandamus.)

Said another: “Without this process, I probably would not have gone to the trouble or expense of suing for the record that I eventually obtained. The low filing fee and the simplified process made it possible for me to obtain the record that I sought.”

Not everyone was pleased with the Ohio system, which costs about $1 million a year to administer. Several of those who were denied records told McKenney they wanted to see agencies face penalties for not complying with the law.

The mediation “was a sham,” one person wrote, “as it proposed I leave the state off the hook for all the lies/obstruction the state did prior to the court filing, IF I would agree to drop everything IF the state gave me the sought-after record … I declined to agree to do that.” That person told McKenney “it’s misleading to suggest citizens don’t need a lawyer and it puts them at a disadvantage because the public agencies will definitely be using one.”

McKenney’s paper won the top prize in NFOIC’s 2024 research competition, which was co-sponsored by the Joseph L. Brechner Freedom of Information Project at the University of Florida College of Journalism and Communications.

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