Dayton Daily News June 8, 2004
Ohio courts should lead on public records
Open government depends on the courts' willingness to champion the public's right to know. That requires judges who are impatient with agencies that deny citizens prompt access to public records.
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That should be every judge. The basics of Ohio law are simple and clear: Information kept by government offices is presumed to be open to the public. The law recognizes exceptions, but they are specific and few, and must be read narrowly.
In other words, public officials had better have darn good reasons for withholding records from the public — and be prepared to explain them. That includes the courts themselves, and the records they maintain.
Alarms should go off when a court seals records that have been kept wide open. But that's what recently happened in the Montgomery County Court of Common Pleas. The court denied the public access to the most basic part of a court file: the "complaint," which is filed to initiate a lawsuit and sets forth the factual basis of the claim.
It did so in a dispute between former partners of a local law firm (one whose lawyers represents the Dayton Daily News). The court implied that the complaint contained scandalous material intended to embarrass other parties. If that's so, the court should sanction the offending parties, not bury a public document.
The case provides an auspicious occasion for Ohio courts to more broadly consider how they can better fulfill their roll as guardians of open government. It comes at a troubling time, when government records across the board are being kept from the public's reach. The courts have a duty to develop a response that's more systematic than case-by-case enforcement of the law.
Judicial education is the place to start. The Ohio Judicial College offers periodic courses on the sunshine and open records laws. The state Supreme Court should consider requiring all members of the judiciary to attend such a course. This would reinforce the special need for a well-informed judiciary in these cases.
Meanwhile, the high court's rules advisory committee, which recommends reforms to practices and procedures in all Ohio courts, should examine the possibility of developing special rules to govern public record cases. They could guide judges on the strong presumption favoring openness, reminding them to place the burden where it belongs: on officials who want to deny access to public records.
Challenging such officials and navigating the courts can be a costly proposition, well beyond the means of ordinary citizens. Court administrators should consider ways to provide better and more affordable access to justice in these cases.
They might organize "public records" dockets that make it possible for lay people who have been denied information to represent themselves. The docket might be called monthly, and it could employ simplified forms and procedures in the manner of a "small claims" court.
These steps, and more, represent an appropriate, positive, and much-needed form of judicial leadership that makes government more open and responsive to citizens. Sending such a message may actually reduce reliance on the courts. Officials may prefer to do their duty rather than face a grumpy judge.