No. 6 March 3, 2006

PLEASE CIRCULATE THIS BULLETIN TO YOUR COUNCIL, DEPARTMENT HEADS & STAFF

Substitute Bill on Open Records to be Heard.

Next week (See hearing schedule), a hearing will be held in the Ohio House on a new version of HB 9, the open records bill. The hearing is for proponents, opponents and interested parties, so anyone interested in testifying on this version of the bill should testify at this hearing. Representative Oelslager’s office is saying that the Speaker’s office would like to see a bill come out of committee by March 15.

The new provisions of the substitute bill which differ from the Introduced version include:

• The mandatory training for all elected officials has been changed to “elected officials or their appropriate designees.” The education course must be three hours per the term of the elected official. This change may mean that the mandatory education in the bill may actually be given to those who fulfill the vast majority of public record requests. It also means someone working for an elected official with a two-year term will get to go to twice as many courses as someone working for an elected official with a four-year term.

• A continued requirement that redactions, while permitted, are still considered a denial of a public records request.

• The Attorney General, who is required to provide the mandatory education courses, would not be allowed to charge any fees for the courses and the courses would have to eligible for CLE’s.

• The AG must provide for model public records policy for all public offices, which can be used by all public offices for its mandatory public records policy.

• Every public office must develop and post a poster, either physically or on the jurisdiction’s website, outlining its public records policies.

• Requests for public records and postage needed to transmit those records may be required to be paid in advance.

• Mandamus actions against a public agency for failure to comply with the open records law may be filed after 10 days of non-compliance unless there is agreement that compliance will take longer, the age of the requested documents make it tough, the request is for more than 100 pages, there is need to examine the records for exempted information, there is a need for redactions or the format in which the records are held is no longer easily accessible.

• Failure to comply with a public records request, subject to a mandamus action, could result in fines of $100 per day, up to $1000 maximum. In the original bill, those fines could be $250 a day, up to a $5000 maximum.

• Punitive damages, per se, are not in the sub bill. However, we doubt that anyone incurring fines or attorney’s fees will feel those fees is something other than punitive damages.

• The courts are given more latitude to determine whether attorney’s fees should be awarded to the complainer and may award attorney’s fees to the public office, if the records requester’s mandamus action constitutes “frivolous conduct.”

• Creates a whole new process for the disposal of all local public records, which requires the approval of both the Ohio Historical Society and the State Auditor.

• Creates the Office of Public Access Counselor in the Ohio Court of Claims. This office is sort of the “marriage counselor” for all alleged public records and open meetings violations. The PAC can give advice, write up agreements between those who think they didn’t get records or get into a public meeting and the public agency and fine anyone violating those agreements. Anyone with a complaint who doesn’t like what they’re hearing from the PAC can pull out of the process of a formal or informal complaint and just go off to court. Just like with divorce courts, sometimes the counseling will work and sometimes it won’t.

The Task Force considering the state’s response to the Kelo case met this past week to hear from those who think the state doesn’t have to do anything related to this situation. John Gotherman, Counsel to the League, testified, on behalf of the League, that no response was necessary. Steve Smith, of Schottenstein, Zox and Dunn and Law Director for the City of Dublin, testified in the same vein. John Gotherman’s testimony on this matter, and handouts for the committee, will be available on the League website early next week

We will keep you informed on further hearings of this Task Force. It is expected that many of the future hearings of the Task Force will take place in regional settings.

HB 347 CONCEAL-CARRY REVISIONS (Aslanides) To revise the laws regarding licenses to carry a concealed handgun and the authority to carry a concealed handgun under such a license; to limit journalist access to information regarding persons who have such a license and who assert reasonable cause to fear a criminal attack; to provide exemptions from certain carrying of firearms-related offenses for persons in compliance with the Ohio Peace Officer Training Commission's firearms requalification program; to specifically provide a self-defense affirmative defense to discharge of a firearm while in or on a vessel or motor vehicle-related offenses; to clarify when a firearm is loaded for purposes of offenses relating to possession of a loaded firearm while in or on a vessel or motor vehicle and carrying concealed weapons; to provide that the sealing or expungement of a conviction or delinquent child record is an affirmative defense to falsification based on the failure to report the record on an application for a concealed handgun license; and to identify, as a general law and matter of statewide concern, the right of any person, except as provided in the Revised Code, to own, possess, purchase, otherwise acquire, transport, carry, sell, or otherwise transfer a firearm, firearm component, or ammunition. (6th Hearing-Substitute & possible vote)

House Commerce and Labor, (Chr. Schaffer, 466-8100), Taft Rm. (122), 11:30 a.m. or after session

HB 497 RETAINAGE (Hagan) To modify provisions governing the practice of withholding a percentage of payment from contractors, subcontractors, and material suppliers in the form of retainage. (2nd Hearing-Proponent)

House Civil & Commercial Law, (Chr. Oelslager, 752-2438), Hayes Rm. (114), 9:30 a.m.

HB 9 PUBLIC RECORDS LAW (Oelslager) To revise the Public Records Law. (12th Hearing-All testimony (Vote scheduled March 15))

House Financial Institutions, Real Estate & Securities, (Chr. Widener, 466-1470), Rm. 017, 8:30 a.m.

HB 272 PUBLIC EMPLOYEES RETIREMENT SYSTEM (Schneider) Regarding the Public Employees Retirement System. (4th Hearing-All testimony)

House Local & Municipal Government & Urban Revitalization, (Chr. Wolpert, 466-9690), Rm. 018, 11 a.m.

HB 429 REZONING NOTICES (DeWine) To require a county, township, or statutory municipal corporation zoning authority to give notice to the commander of a military base, camp, installation, or airfield that is at least 30 acres in size when considering proposed rezoning or redistricting of property that is within 3,000 feet of that base, camp, installation, or airfield. (1st Hearing-Sponsor)