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When a member of the public believes a state agency has violated a public-records law, who gets to be the referee?
That question is at the core of a colorful political affair that recently unfolded in Ohio, one that pitted Republicans from different branches of state government against one another—and underscored the importance of programs that can resolve public-records disputes without protracted litigation.
The episode began in March, when state auditor Dave Yost, a Republican and a former reporter for the long-defunct Columbus Citizen-Journal, announced that his office would begin fielding complaints regarding public-records violations by state agencies. The new “Sunshine Audits” program would, for the first time, allow Ohioans to pursue records complaints against those agencies without filing a lawsuit—a cumbersome and often costly enterprise.
Immediately, the GOP-controlled legislature took up efforts to kill the program, with leaders adding language to a proposed state budget that would have restricted Yost’s authority. “There’s a place for everything,” House Speaker Cliff Rosenberger, R-Clarksville, told the Columbus Dispatch. “I don’t know that [monitoring compliance with public-records laws is] the place for the auditor.”
For his part, Yost fired back, calling the legislative maneuvering a “full-frontal assault on the independence of [his] office” and challenging lawmakers “to explain why it is a bad idea to have a quick, easy, cheap resolution to routine public records requests.” He added he would “gladly” debate the issue “in front of God and everybody.”
That debate ended, for the time being, on Monday, when key lawmakers stood down and a House panel voted to strike the offending language from the budget plan. (The Ohio Newspaper Association had weighed in to oppose the budget language.)
The issue may not be entirely resolved, though. Finance Committee Chair Ryan Smith, R-Gallia, said in a statement that “all parties agree that public records play a critical role in maintaining an open and transparent government…, [but] many in the General Assembly do not believe the auditor has this authority as defined by the Ohio Revised Code.”
The legislators are likely wrong about that. The Revised Code empowers the auditor generally to investigate how government offices comply with the law, and to determine, among other things, “whether the laws, rules, ordinances, and orders pertaining to [an] office have been observed.” That includes financial matters but certainly is not limited to them.
Meanwhile, Yost is going ahead with his “Sunshine Audits.” Under the program, citizens and organizations can initiate a review by filing a complaint about a records violation with the auditor’s office, which will then send notices to both parties, giving them the chance to present their arguments. The auditor will determine if the law was violated and issue a report.
(A separate program run by the state attorney general offers a mediation service as an alternative to litigation. But it only accepts complaints involving local governments, because the AG’s office acts as legal counsel to state agencies.)
Yost has said his office lacks the authority to enforce the audits, but, as Randy Ludlow reported for the Columbus Dispatch, his office’s audits generally have the legal presumption of validity. That means a complainant can ask a judge to use the audit to enforce the law. And the first audits under the program already have resolved several disputes, in one case prompting a county development office to turn over documents about an airport construction project.
This approach is similar to ombudsman programs in other states, where the ombudsman’s office responds to inquiries from the public regarding public records; issues opinions interpreting public records laws upon request; and makes recommendations to the legislature regarding government transparency. The programs differ most sharply in their power to enforce their opinions: Some have that power, some don’t.
(Media law professor Chip Stewart, of Texas Christian University, explored the formal and informal open records dispute-resolution systems in place around the country in this 2012 article.)
Whether the Ohio program works in practice is yet to be seen, but Yost’s approach is smart because filing a lawsuit is so burdensome—for all involved. First, most state FOI laws, including Ohio’s, provide paltry incentives for a plaintiff to sue, even for blatant violations. As a recent study in the Missouri Law Review put it:
[D]ubious deniers of public records … are often allowed to simply hand over the documents after a lawsuit is filed, suffering little to no penalty unless a judicial decision goes against them. Nonetheless, the challenging party still has to pay the start-up costs for the lawsuit, and such costs can be prohibitive. Perversely, such a situation disincentives challenging open record request denials while at the same time incentivizing officials to issue denials.
Second, litigation is expensive not only for the plaintiff but also the government, and in Ohio, as elsewhere, many agencies are strapped for cash. If Yost’s program helps to avoid litigation, or makes it more efficient when it’s necessary, that’s a good thing.
Either way, it appears there will be a second act in the Yost affair, because Smith, the Finance Committee chair, said Monday that “the issue of a non-court-related remedy for public records disputes will likely be addressed in future legislation in order to give legislators time to study the issue in greater detail and to assess its implications.”
In other words, the Sunshine Audits are here for now, but lawmakers reserve the right to change the rules in the future. As they undertake that study, I hope the lawmakers truly recognize the benefits of open government and the role that ADR programs can play to ensure that openness. And, in the meantime, I look forward to following Yost’s program.
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