PUBLIC RECORDS Courts chipping away at original law

Attorneys have been successful in arguing for exceptions to public records law.
By KELLY LECKER
THE BLADE
TOLEDO -- Rulings by the Ohio Supreme Court, particularly in the last decade, have limited access to documents once available under the state's public-records law, media law experts said.
In some cases, the decisions were made to protect the privacy of people involved. But the rulings led to sweeping exceptions in the law, according to David Marburger, a Cleveland attorney who has represented the press in public-records cases.
Media law experts say the courts increasingly have narrowly defined the meaning of public records, so documents collected by a public agency that used to be available are now being kept from the public.
An example
One ruling involved a Columbus Boy Scout leader who requested a list kept by the city's Parks and Recreation Department of children who use the city pools, so he could recruit new members. The list contained the each child's home address and telephone number.
The Supreme Court ruled unanimously that the information should not be released. Justice Andy Douglas noted that the information could be posted on the Internet and lead to the victimization of the children.
But the ruling could have an effect on much more than the children's privacy.
It states that personal information about private citizens used by a public office in "lawful regulatory policy" is not a public record.
"The breadth of that is striking. Names and addresses are pretty basic public information," Marburger said. "Why would arrest records be public? Why would names of owners of certain businesses, of doctors or dentists? Why would their license be public?"
Sometimes judges rule against disclosure because of safety concerns.
"Since we are still in the wake of 9/11, I haven't seen any inclination yet that it will lighten up," said Tim Smith, a Kent State University professor and media law expert.
"But it's difficult to maintain that same edgy feeling that we could be assaulted at any time. It's tough to argue we're in danger."
Police lawsuit
In one lawsuit, three Columbus police officers sued the police department after their home addresses and other personal information were released to an attorney who requested it under the public-records law.
The case went back and forth in federal and appeals courts until the officers dropped their complaint. A ruling by the 6th U.S. Circuit Court of Appeals that said the officers' privacy was a constitutional right set a potential precedence.
"The court essentially set back public-records access rather significantly," Smith said.
Many of the rulings that have created exceptions to the public records law have come since 1996. Marburger attributed that to attorneys' successfully arguing that certain documents are not public records.
Other media law attorneys say a public push for more privacy has made it more likely judges will rule against releasing information.
Social Security numbers of public officials were deemed not to be public after a lawsuit was filed by the Akron Beacon Journal in 1994.
Some disagreement
Attorneys who specialize in media law disagree over the impact of an Ohio Supreme Court ruling that does not make court and police records available until a criminal defendant has been convicted and his case closed.
The ruling came about after defendants and their attorneys were circumventing discovery laws and getting information on their cases through the Ohio public-records law.
The decision closed off court and police documents to the public while cases are pending, which could include appeals, according to Fritz Byers, a Toledo attorney who specializes in media law.
"When the statute was passed and for 20 years after, there was nothing in it. It says everything's public," Byers said. "Judges started saying, 'I'm not going to let this come out.'"