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OHIO SUNSHINE LAWS CERTIFICATION TRAINING U SING O HIO S P UBLIC R ECORDS A CT TO P ROMOTE O PEN AND A CCOUNTABLE G OVERNMENT A seminar for public officials, citizens, and the media presented by Ohio Attorney General Mike DeWine

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Page 1: OHIO SUNSHINE LAWS CERTIFICATION TRAINING sunshine laws... · OHIO SUNSHINE LAWS CERTIFICATION TRAINING USING OHIO’S PUBLIC RECORDS ACT TO PROMOTE OPEN AND ACCOUNTABLE GOVERNMENT

OHIO SUNSHINE LAWS

CERTIFICATION TRAINING

USING OHIO’S PUBLIC RECORDS ACT TO PROMOTE

OPEN AND ACCOUNTABLE GOVERNMENT

A seminar for public officials, citizens, and the media

presented by Ohio Attorney General Mike DeWine

Page 2: OHIO SUNSHINE LAWS CERTIFICATION TRAINING sunshine laws... · OHIO SUNSHINE LAWS CERTIFICATION TRAINING USING OHIO’S PUBLIC RECORDS ACT TO PROMOTE OPEN AND ACCOUNTABLE GOVERNMENT

WHY DO WE CARE?

2

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3

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PUBLIC RECORDS ACT OVERVIEW

4

Definitions

Obligations

Exceptions

Liabilities

Page 5: OHIO SUNSHINE LAWS CERTIFICATION TRAINING sunshine laws... · OHIO SUNSHINE LAWS CERTIFICATION TRAINING USING OHIO’S PUBLIC RECORDS ACT TO PROMOTE OPEN AND ACCOUNTABLE GOVERNMENT

WHAT IS A PUBLIC RECORD?

Ohio Revised Code Section 149.43

“‘Public Record’ means records kept by

any public office . . .”

1 2

3

5

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WHO IS SUBJECT TO THE PRA?

6

Public Offices

Persons Responsible

Functional Equivalents

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PRIVATE ENTITIES PERFORMING

GOVERNMENT WORK

7

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FUNCTIONAL EQUIVALENCE

1. Performing a governmental function

2. Level of government funding

3. Government involvement or

regulation

4. Created to avoid requirements of

the PRA

8

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DEFINITION OF RECORD

9

Fixed Medium

Created, Received, Under Jurisdiction

Documents Activities

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Fixed medium:

Not fixed medium:

10

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CREATED, RECEIVED BY, OR

COMING UNDER THE JURISDICTION

OF A PUBLIC OFFICE

11

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DOCUMENTS ACTIVITIES OF THE OFFICE

12

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DOCUMENTS ACTIVITIES OF THE OFFICE

http://www.ohiochannel.org/MediaLibrary/Media.aspx?fileI

d=119414

13

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PUBLIC RECORDS —

RECORDS “KEPT BY” ANY PUBLIC OFFICE

14

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RECORD VS. NON-RECORD

• PRA does not apply to non-records

• Non-record items can be redacted

or removed

• Non-record ≠ confidential

15

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NOTES

Not records if:

1. Personal papers

2. Kept for convenience; and

3. Others did not use/access

16

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DRAFTS

• Record?

• Transient?

17

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QUIZ

“I’d like copies of all the pictures that the

Attorney General has on his desk.”

18

Record? Non-record?

Page 19: OHIO SUNSHINE LAWS CERTIFICATION TRAINING sunshine laws... · OHIO SUNSHINE LAWS CERTIFICATION TRAINING USING OHIO’S PUBLIC RECORDS ACT TO PROMOTE OPEN AND ACCOUNTABLE GOVERNMENT

Fixed medium

19

Created, received, under jurisdiction

of office

Documents activities of the office

Non-record

Page 20: OHIO SUNSHINE LAWS CERTIFICATION TRAINING sunshine laws... · OHIO SUNSHINE LAWS CERTIFICATION TRAINING USING OHIO’S PUBLIC RECORDS ACT TO PROMOTE OPEN AND ACCOUNTABLE GOVERNMENT

QUIZ

“Send me a copy of AAG Joe Smith’s personal

cell phone call detail statement - he receives

a state employee discount on his bill!”

20

Record? Non-record?

Page 21: OHIO SUNSHINE LAWS CERTIFICATION TRAINING sunshine laws... · OHIO SUNSHINE LAWS CERTIFICATION TRAINING USING OHIO’S PUBLIC RECORDS ACT TO PROMOTE OPEN AND ACCOUNTABLE GOVERNMENT

Fixed medium

21

Created, received, under jurisdiction

of office

Documents activities of the office

Non-record

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WHO CAN MAKE A PUBLIC

RECORDS REQUEST?

Any “person”

22

Page 23: OHIO SUNSHINE LAWS CERTIFICATION TRAINING sunshine laws... · OHIO SUNSHINE LAWS CERTIFICATION TRAINING USING OHIO’S PUBLIC RECORDS ACT TO PROMOTE OPEN AND ACCOUNTABLE GOVERNMENT

NO WRITING, OR SPECIAL FORMAT, OR

PARTICULAR LANGUAGE REQUIRED

23

Verbal or

Written

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IDENTITY AND MOTIVE IRRELEVANT

Cannot ask for motive

unless specifically

authorized by law

24

Cannot demand the

identity of the

requester

Page 25: OHIO SUNSHINE LAWS CERTIFICATION TRAINING sunshine laws... · OHIO SUNSHINE LAWS CERTIFICATION TRAINING USING OHIO’S PUBLIC RECORDS ACT TO PROMOTE OPEN AND ACCOUNTABLE GOVERNMENT

REQUESTER’S RIGHTS TO:

INSPECT OR COPY

25

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COPIES

Requester can choose:

1. Paper

2. Medium record is kept on

3. Any other reasonably available medium

26

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INSPECTION: REASONABLE TIMES

DURING BUSINESS HOURS

27

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TIME TO RESPOND

Includes time to:

1. Retrieve

2. Review

3. Obtain legal advice

4. Redact

28

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PUBLIC RECORDS POLICIES

29

Model Public Records Policy available at

www.OhioAttorneyGeneral.gov/Publications

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IS THE REQUEST AMBIGUOUS, OR

OVERLY BROAD?

Requester has a

responsibility to

identify records

with “reasonable

clarity”

31

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LIMITS ON REQUESTS

32

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NEGOTIATE

Required when denying

request as ambiguous or

overly broad

33

Explain how records are

maintained and accessed

Page 34: OHIO SUNSHINE LAWS CERTIFICATION TRAINING sunshine laws... · OHIO SUNSHINE LAWS CERTIFICATION TRAINING USING OHIO’S PUBLIC RECORDS ACT TO PROMOTE OPEN AND ACCOUNTABLE GOVERNMENT

OPTION TO ASK FOR PURPOSE,

IDENTITY, OR WRITTEN REQUEST

34

1.Must enhance ability to identify, locate, or deliver records

2. Advise that providing information is not required

AND

Conditions:

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CHARGING?

35

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DELIVERY? Any available means

37

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GO ABOVE AND BEYOND

38

Time

Expense

Conflict

Save…

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LEGISLATURE CAN CHANGE RULES

39

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MAKING NON-RECORDS RECORDS

Employee

birth dates

40

Page 41: OHIO SUNSHINE LAWS CERTIFICATION TRAINING sunshine laws... · OHIO SUNSHINE LAWS CERTIFICATION TRAINING USING OHIO’S PUBLIC RECORDS ACT TO PROMOTE OPEN AND ACCOUNTABLE GOVERNMENT

MORE ACCESS FOR CERTAIN

REQUESTERS

Journalists

41

Next of kin and Insurers

(coroners’ records)

Page 42: OHIO SUNSHINE LAWS CERTIFICATION TRAINING sunshine laws... · OHIO SUNSHINE LAWS CERTIFICATION TRAINING USING OHIO’S PUBLIC RECORDS ACT TO PROMOTE OPEN AND ACCOUNTABLE GOVERNMENT

INMATES

42

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SOME OFFICES CAN CHARGE MORE

43

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EXCEPTIONS ARE ONLY CREATED BY

APPLICABLE STATE OR FEDERAL LAW

44

NOT by contract

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MANDATORY EXCEPTIONS

No choice but

to withhold

45

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EXAMPLES OF

MANDATORY EXCEPTIONS

46

Family Educational

Rights and Privacy

Act (FERPA)

Law Enforcement

Automated Data

System (LEADS)

Page 47: OHIO SUNSHINE LAWS CERTIFICATION TRAINING sunshine laws... · OHIO SUNSHINE LAWS CERTIFICATION TRAINING USING OHIO’S PUBLIC RECORDS ACT TO PROMOTE OPEN AND ACCOUNTABLE GOVERNMENT

DISCRETIONARY

47

May withhold, but

not required to

Page 48: OHIO SUNSHINE LAWS CERTIFICATION TRAINING sunshine laws... · OHIO SUNSHINE LAWS CERTIFICATION TRAINING USING OHIO’S PUBLIC RECORDS ACT TO PROMOTE OPEN AND ACCOUNTABLE GOVERNMENT

NO EXCEPTION?

Government job

application materials

48

General Privacy

Juvenile records

Page 49: OHIO SUNSHINE LAWS CERTIFICATION TRAINING sunshine laws... · OHIO SUNSHINE LAWS CERTIFICATION TRAINING USING OHIO’S PUBLIC RECORDS ACT TO PROMOTE OPEN AND ACCOUNTABLE GOVERNMENT

MULTIPLE/MIXED EXCEPTIONS

49

Non-record

DiscretionaryMandatory

Page 50: OHIO SUNSHINE LAWS CERTIFICATION TRAINING sunshine laws... · OHIO SUNSHINE LAWS CERTIFICATION TRAINING USING OHIO’S PUBLIC RECORDS ACT TO PROMOTE OPEN AND ACCOUNTABLE GOVERNMENT

WAIVER?

50

Intentional

disclosure

=Permanent

waiver

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WITHHOLDING/REDACTING

• Notify where

you’ve withheld

51

• Provide explanation and

the legal authority!

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PROTECTED INFORMATION MAY

BE WITHHELD

52

CO

NFID

EN

TIA

L

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WITHHOLD IN GOOD FAITH

53

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EXAMPLE

54

Redact?

Release?

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55

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REDACTING VS. WITHHOLDING

http://www.ohiochannel.org/MediaLibrary/Media.aspx?fileI

d=146519

56

Redact Withhold

Page 57: OHIO SUNSHINE LAWS CERTIFICATION TRAINING sunshine laws... · OHIO SUNSHINE LAWS CERTIFICATION TRAINING USING OHIO’S PUBLIC RECORDS ACT TO PROMOTE OPEN AND ACCOUNTABLE GOVERNMENT

State ex rel. Beacon

Journal Publ’g Co. v. City of Akron,

70 Ohio St.3d 605

Redact?

QUIZ

Page 58: OHIO SUNSHINE LAWS CERTIFICATION TRAINING sunshine laws... · OHIO SUNSHINE LAWS CERTIFICATION TRAINING USING OHIO’S PUBLIC RECORDS ACT TO PROMOTE OPEN AND ACCOUNTABLE GOVERNMENT

QUIZ

Redact?

Also consider

protections for certain covered professionals,

R.C. 149.43(A)(7)

Page 59: OHIO SUNSHINE LAWS CERTIFICATION TRAINING sunshine laws... · OHIO SUNSHINE LAWS CERTIFICATION TRAINING USING OHIO’S PUBLIC RECORDS ACT TO PROMOTE OPEN AND ACCOUNTABLE GOVERNMENT

PREPARATION

59

• Training

• Lists

• Records Retention Schedules

• Resources

Page 60: OHIO SUNSHINE LAWS CERTIFICATION TRAINING sunshine laws... · OHIO SUNSHINE LAWS CERTIFICATION TRAINING USING OHIO’S PUBLIC RECORDS ACT TO PROMOTE OPEN AND ACCOUNTABLE GOVERNMENT

CONSULT YOUR LEGAL COUNSEL

60

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61

OHIO SUNSHINE LAWS MANUAL

www.OhioAttorneyGeneral.gov/YellowBook

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62

OHIO ELECTRONIC

RECORDS COMMITTEE

www.OhioERC.org

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DO MORE THAN IS REQUIRED

63

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NEGOTIATE TO A WIN-WIN SOLUTION

64

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DOCUMENTING REQUESTS

Benefits:

• Defending litigation

• Duplicative requests

65

Page 66: OHIO SUNSHINE LAWS CERTIFICATION TRAINING sunshine laws... · OHIO SUNSHINE LAWS CERTIFICATION TRAINING USING OHIO’S PUBLIC RECORDS ACT TO PROMOTE OPEN AND ACCOUNTABLE GOVERNMENT

WHAT TO DOCUMENT:

1. The request itself

2. Acknowledgement of request

3. Communication with requester

4. All steps taken

5. Records provided

• AOS Bulletin 2011-006

66

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OTHER PRACTICAL TIPS

• Contact legal

counsel early

• Negotiate if

appropriate

67

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POTENTIAL LIABILITIES

• Mandamus or Court of Claims proceeding

• Order to produce records

• Statutory damages

• Attorney fees

68

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REQUIREMENTS FOR

STATUTORY DAMAGES

69

1. Certified mail or hand delivery

2. Lost use of records

AND

Page 70: OHIO SUNSHINE LAWS CERTIFICATION TRAINING sunshine laws... · OHIO SUNSHINE LAWS CERTIFICATION TRAINING USING OHIO’S PUBLIC RECORDS ACT TO PROMOTE OPEN AND ACCOUNTABLE GOVERNMENT

ATTORNEY FEES

• Available if…

• Public office acted in bad faith in

providing records after mandamus

lawsuit filed

• Not Available if…

• Any well-informed person would have

reasonably believed at the time that

the conduct of your office was not

violating the letter or spirit of the PRA

70

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RECORDS CREATION

“Shall make” only necessary records

71

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ORGANIZE AND MAINTAIN

72

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RECORDS RETENTION APPROVAL

73

Local Records Commission

Ohio History Connection(State Archives)

Auditor of State

Page 74: OHIO SUNSHINE LAWS CERTIFICATION TRAINING sunshine laws... · OHIO SUNSHINE LAWS CERTIFICATION TRAINING USING OHIO’S PUBLIC RECORDS ACT TO PROMOTE OPEN AND ACCOUNTABLE GOVERNMENT

CONTENTS OF RETENTION SCHEDULES

74

Series TitleSeries

DescriptionRetention

Period

Retention Format

Disposal Method

Page 75: OHIO SUNSHINE LAWS CERTIFICATION TRAINING sunshine laws... · OHIO SUNSHINE LAWS CERTIFICATION TRAINING USING OHIO’S PUBLIC RECORDS ACT TO PROMOTE OPEN AND ACCOUNTABLE GOVERNMENT

FACTORS DETERMINING

RETENTION PERIOD

75

Administrative Purpose

Fiscal Tracking

Legal ValueHistorical

Value

Page 76: OHIO SUNSHINE LAWS CERTIFICATION TRAINING sunshine laws... · OHIO SUNSHINE LAWS CERTIFICATION TRAINING USING OHIO’S PUBLIC RECORDS ACT TO PROMOTE OPEN AND ACCOUNTABLE GOVERNMENT

RESOURCES

Department of

Administrative Services

General Schedules

76

Ohio History Connection

State Archives

Page 77: OHIO SUNSHINE LAWS CERTIFICATION TRAINING sunshine laws... · OHIO SUNSHINE LAWS CERTIFICATION TRAINING USING OHIO’S PUBLIC RECORDS ACT TO PROMOTE OPEN AND ACCOUNTABLE GOVERNMENT

HAVE RETENTION SCHEDULES

READILY AVAILABLE

77

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DISPOSE OF RECORDS PROPERLY

As provided for by:

• Law

• Records retention schedules

78

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LIABILITIES FOR IMPROPER DISPOSAL

79

Potential

Consequences:

• Civil lawsuit

• Court of Claims

proceeding

• Forfeiture of $1,000

per violation

• Attorney fees

Page 80: OHIO SUNSHINE LAWS CERTIFICATION TRAINING sunshine laws... · OHIO SUNSHINE LAWS CERTIFICATION TRAINING USING OHIO’S PUBLIC RECORDS ACT TO PROMOTE OPEN AND ACCOUNTABLE GOVERNMENT

“PERSON AGGRIEVED”

http://www.ohiochannel.org/MediaLibrary/Media.aspx?fileI

d=130353

80

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R.C. 149.351

Not “aggrieved” if

request was contrived

to create liability

81

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OPEN MEETINGS ACT OVERVIEW

82

Definitions

Obligations

Executive Session

Liabilities

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WHO IS SUBJECT AND WHEN?

Applies to “public bodies” when:

83

3conducting or discussing

public business

1 there is a prearranged gathering of

2a majority of the members of a

public body

Page 84: OHIO SUNSHINE LAWS CERTIFICATION TRAINING sunshine laws... · OHIO SUNSHINE LAWS CERTIFICATION TRAINING USING OHIO’S PUBLIC RECORDS ACT TO PROMOTE OPEN AND ACCOUNTABLE GOVERNMENT

“PUBLIC BODIES”

Includes committees and sub-committees

84

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“MEETING”

85

Prearranged

Discussion ofPublic Business

Majority of Members

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RETREATS, WORK SESSIONS, ETC.?

86

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MEETING MUST BE USED FOR DISCUSSION

AND DELIBERATION OF “OFFICIAL BUSINESS”

87

Information gathering

Presentations

Isolated conversations between employees

NOT NECESSARILY FOR …

Page 88: OHIO SUNSHINE LAWS CERTIFICATION TRAINING sunshine laws... · OHIO SUNSHINE LAWS CERTIFICATION TRAINING USING OHIO’S PUBLIC RECORDS ACT TO PROMOTE OPEN AND ACCOUNTABLE GOVERNMENT

MEETING OBLIGATIONS

1. Notice

88

2. Openness 3. Minutes

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NOTICE RULE REQUIREMENTS

89

1. Be consistent

2. Actually reach the public

AND

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OBLIGATION 1: NOTICE

Public bodies establish their

own notice rules

90

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NOTICE REQUIREMENTS DEPEND ON

TYPE OF MEETING

91

Regular

Prescheduled Intervals

Special

Anything other than Regular

Two Types of Meetings:

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NOTICE: REGULAR MEETINGS

92

Regular

Time Place

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NOTICE: SPECIAL MEETINGS

93

Special

Time Place Purpose

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SPECIAL MEETINGS: MEDIA

At least 24 hours

notice to all media

outlets that have

requested it

94

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EMERGENCY MEETINGS

• Type of special

meeting

• Must include

media with notice

95

Immediate Notice Required

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NOTICE TO PUBLIC OF PLANNED

DISCUSSION OF PARTICULAR TOPIC

1. Public body must have a method to sign

up for such notice

2. May require payment of reasonable fee

96

NOTICE

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OBLIGATION 2: OPENNESS

97

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OPENNESS

Vote and take official actions in public

98

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OPENNESS

No voting by

secret ballot

99

No round-robin

meetings

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OPENNESS

Forum requirements:

1. Public

2. In area public body

serves

3. Large enough

10

0

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RECORDING AND SPEAKING?

Cannot ban non-disruptive recording

10

1

Do not have to allow public participation

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QUIZ

Township trustees hold a regular meeting,

where all the members attend, and

provide the proper notice to the public. But

the doors to the meeting room are

accidentally locked while the meeting is

ongoing.

10

2

Open? Not open?

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Proper notice was given

10

3

Minutes were taken

Openness denied to latecomers

Potential OMA

violation

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OBLIGATION 3: MINUTES

Requirements:

1. Promptly prepared

2. Filed

3. Maintained

4. Open to public

10

4

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REQUIRED CONTENT

• Not verbatim transcript,

but …

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5

• Must allow public

(including those who

did not attend) to

understand decisions

of the public body

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EXECUTIVE SESSION

10

6

PRIVATE

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PROPER PROCEDURE

10

7

Motion

Second

Roll Call Vote

Identify particularpurpose and matter

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10

8

Do not BEGIN or END a meeting

in executive session

Insert executive session here!

Meeting

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NINE ACCEPTABLE

EXECUTIVE SESSION TOPICS

1. Certain personnel matters (must be specific)

2. Purchase or sale of property

3. Pending or imminent court action

4. Collective bargaining matters

5. Matters required to be kept confidential

6. Security matters

7. Hospital trade secrets

8. Confidential business information of an applicant

for economic development assistance

9. Veterans Service Commission applications

10

9

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QUIZ

Township trustees want to go into executive

session to discuss a general OMA issue.

Chair moves to adjourn with the board’s

attorney to “discuss some legal matters with

the attorney for the trustees.” Roll call vote.

11

0

Appropriate? Not appropriate?

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Started in open session

11

1

Roll call vote to enter executive session

Pending or imminent legal action

Potential OMA

violation

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WHO CAN BE PRESENT?

1. Members

• But cannot

exclude minority!

11

2

2. Anyone else the members invite

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CONFIDENTIALITY?

• No confidentiality

provisions created in

OMA

11

3

• Other laws, like Ethics

Law, may require

confidentiality (but

only of the members!)

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WHAT NOT TO DO

IN EXECUTIVE SESSION

11

4

Vote

Make Any Decisions

Discuss Other Matters

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VIRTUAL PARTICIPATION?

11

5

Not unless specifically authorized

by law…

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WHO ENFORCES THE OMA?

• “Any person” by

filing a lawsuit

• No public entity

enforces the OMA

11

6

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POTENTIAL LIABILITIES

1. Fine

2. Attorney fees

3. Invalidation of

action(s) taken

4. Removal from office

11

7

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QUESTIONS?

11

8

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ANSWERS

Ohio Attorney General Mike DeWine

Public Records Unit614-466-2872

11

9

www.OhioAttorneyGeneral.gov/YellowBook

www.OhioAttorneyGeneral.gov/Sunshine

Ohio Sunshine Laws Manual

Ohio Attorney General’s Sunshine Laws Webpage