National News
Rare victory for access to public records
June 05, 2015 posted by Steve Brownstein
In too many instances, the state legislature has weakened Ohio’s public records law, depriving citizens of information they need to make decisions in a democracy or about actions conducted in their name. JobsOhio, an entire agency, has been exempted. So have details about how the state carries out the death penalty.
A recent ruling by the Ohio Supreme Court represents a welcome move in the other direction, toward openness in government. In a 4-3 decision, the court ordered the police chief of Otterbein University to turn over criminal records requested by a student-run website. The university argued the records are off limits because Otterbein is a private institution.
The court majority rightly explained that the university police department was formed under Ohio law and that its officers, who must meet the same requirements as all other police officers in the state, engage “in one of the most fundamental functions of government: the enforcement of criminal laws.”
A key element of the ruling echoed the important concept that private corporations do not enjoy blanket immunity from the open records law. The court cited past rulings establishing the principle that if a private corporation performs a public function, then it must conform to making records available. It is hard to conceive of any circumstances under which law enforcement is not a public function.
In his dissent, Justice Terrence O’Donnell stressed that the university police department was formed “under” state law. He added that the Public Records Act applies to entities “established by the laws of this state.” As a result, he concluded that the university, not the state, established the campus force, and the department should be exempt. All the justice misses is the larger context of public function.
To his credit, Mike DeWine, the state attorney general, joined the student-filed lawsuit, agreeing that the university department’s exercise of police powers brought it under the open records law. In reacting to the ruling, he correctly emphasized the need to “err on the side of openness and transparency” when statutes are not clear, the public’s right to know paramount, so voters can make their choices at the polls with the information in hand.
What is hard to reconcile with the attorney general’s strong support of transparency in the Otterbein case is his recent backing of a state law shrouding the death penalty in secrecy. When inmates challenged the new law, which shields the identities of all but top state officials and provides cover for compounding pharmacies, if they provide lethal drugs to the state, DeWine opted for secrecy.
If law enforcement is a fundamental function of the state, the exercise of the death penalty is the ultimate step. The public has a right to know the details of such punishment carried out in its name, just as a student website at Otterbein has a right to gain access to criminal records of the campus police department.
When the state confers so much power, to arrest citizens, detain them, even end their lives, citizens have the right to see all the information about how such officials perform.
