Project Sunshine:
Open Meetings, Executive
Session and Public Records
Presentation by
Chris Schmenk, Esq.
Maria Armstrong, Esq.
Katie Johnson, Esq.
Bricker & Eckler LLP
www.bricker.com
Columbus l Cleveland l Cincinnati-Dayton I Marietta
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The Delicate Balance
 Economic Development in General:
– Local entities need to be agile, fast-moving and
empowered with the necessary tools to “seal the deal”
in bringing growth to Ohio
– Need to protect trade secret, proprietary business
information related to projects
 JobsOhio:
– Created to be an independent nonprofit entity which
would possess the same characteristics
– Public scrutiny created the need to find the balance
between effectiveness and transparency
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Evolution of Public Records Portion
of ORC Chapter 187
 Under H.B. 1 (created JobsOhio in 2011),
Section 187.04(C) read as follows:
– (C) Records created or received by JobsOhio are not public
records for the purposes of section 149.43 of the Revised Code,
regardless of who may have custody of the records, unless the
record is designated to be available to the public by the contract
under division (B)(2) of this section.
 Section 187.04(B) designated records that
would be “public”, including federal income tax
return, expenditure reports, officers/employees’
compensation, financial audit reports, fullyexecuted incentive proposals & Board minutes
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Evolution of Public Records Portion
of ORC Chapter 187
 The second JobsOhio bill (Senate Bill 314 from
2012) restructured ODSA and among other
provisions, attempted to reinforce the protections
in ORC Section 187.04(C) by amending ORC
Section 149.43(A) to specify that JobsOhio
records are not “public” unless so designated
 Created concerns with Attorney General Mike
DeWine, The Ohio Newspaper Association and
others
 Bill was amended to clarify that any public
records received by JobsOhio remain public
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JobsOhio Financial Transparency
 Became an issue in 2012-2013 with Auditor
Yost’s desire to audit
 Resolved with S.B. 67, which clarified that
monies relating to the long-term lease of the
state’s liquor business are not “public money”
subject to audit
 JobsOhio voluntarily posts its development deals
on its web site each month, with a listing of how
much money is being used for each deal
(http://jobs-ohio.com/monthly-metrics/)
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Application of Ohio’s Sunshine
Laws to Local Economic
Development Entities
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Open Meetings Act
R.C. 121.22
“All meetings of any public body are declared to be
public meetings open to the public at all times.”
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Sunshine Law Overview
 Open Meetings Act and Public Records Law
 Requirements of an open meeting
– Elements of an open meeting
– Appropriate use of executive session
 Public records
– Handling public records
requests
– Exceptions to the public
records laws
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What is a “Public Body”
 “Any board, commission, committee, council, or similar
decision-making body of a . . .council, agency, authority,
or similar decision-making body . . .
 Board of Commissioners, Township Trustees, and Port
Authorities are all public bodies.
 Community Improvement Corporations (CIC) designated
as the agency for economic development by a county,
municipality or other public entity pursuant to R.C.
1724.10.
 Any committee or subcommittee of a body of the above.
 Committees of the public body v. administrative
committees.
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What is a “Public Meeting”
 A “prearranged discussion of the public business
of the public body by a majority of its members.”
 Must occur in person
 No “round robin” or serial discussions
 E-mail exchanges between the members
 Members must be physically present for
purposes of quorum or to vote
 Deliberations v. mere fact-finding
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Three Requirements of Open
Meetings Act
1. Meetings must be open to the public
2. Public notice of the meeting is required
3. Minutes must be kept
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1. Openness
 Meetings must be open to the public
 Location, location, location
 Deliberation and votes on official business must
be open
 Does not require allowing the public to speak
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2. Proper Notice
 Notice must be in writing and given in advance
 Regular Meetings
– regularly scheduled
– time and dates established by rule
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2. Proper Notice
 Special Meetings
– 24 hour advance notice to media
– Purpose can include “and any other business that
comes before the Board”
– Cannot discuss any purpose that is not included in
the notice
– Notice procedure established by rule
 Emergency Meetings
– Immediate notice to media required
– Cannot hold emergency meeting because of
unavailability of board members
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3. Minutes
 Minutes of all public meetings must be kept
– Prepared promptly, filed and maintained
– Must reflect general subject matter discussed
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Scenario 1
 The Port Authority has always sent notice of
public meetings by mail to those who have
requested notice. You have just joined the
Board of the Port Authority, what should you do?
A. Continue with notice as the Board has done in the
past.
B. Start noticing the community by newspaper
advertisements.
C. Establish a rule that the meetings will be noticed on
the Port Authority’s website, listing the time and
place of the meeting.
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Scenario 2
 In a time of emergency, what is acceptable for a
public body?
A. Conduct a meeting immediately after notifying the
media that a public meeting will take place.
B. Conduct a meeting of the body by teleconference.
C. Conduct a meeting at a place other than the
regularly noticed location.
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Executive Session
 Getting in and out of executive session
– Majority vote
– Reason reflected in the minutes
– Vote must occur in public
 Economic Development Exceptions
 New exception for economic development matters under R.C.
121.22(G)(8); effective September 29, 2013
 Port Authorities, R.C. 4582.091(B)
 CIC's, R.C. 1724.11(B)
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Executive Session
 Port Authorities, R.C. 4582.091(B)
 Port Authority may go into executive session to consider
confidential economic development information submitted by an
employer or potential employer. “No other matters should be
considered during the closed session.”
 CIC’s, R.C. 1724.11(B)
 CIC's may go into executive session to consider confidential
economic development information submitted by an entity in
connection with the relocation, location, expansion,
improvement, or preservation of the entity’s business, or in
pursuit of one or more of the purposes under R.C. 1724.01(B) for
which the CIC is organized.
 The CIC should not consider any other information during the
closed session.
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Executive Session
 Have to be in an open meeting to enter into an
executive session
 A roll call vote is required
 Resolution must cite the portion of R.C.
121.22(G) that allows the body to enter into
executive session
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Executive Sessions
 Proper basis for executive session (R.C. 121.22(G)):
–
–
–
–
–
–
Personnel actions and collective bargaining;
Property purchases;
Court actions;
Security arrangements and emergency response protocols;
Consultation with legal counsel;
Protect confidential business information included in
economic development assistance applications; and
– Other confidential information.
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Executive Session for Economic
Development Matters
 General Economic Development Matters (ORC
121.22(G)(8):
– A public body may go into executive session to
consider confidential information related to:
1) the marketing plans, specific business strategy,
production techniques, trade secrets, or personal
financial statements of an applicant for economic
development assistance, or
2) to negotiations with other political subdivisions
respecting requests for economic development
assistance, provided that both of the following
conditions apply:
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Executive Session for Economic
Development Matters
 Two Things Must be Present:
1) The information must be directly related to a request
for economic development assistance: a) that is to be
provided or administered under any provision of
Chapter 715., 725., 1724., or 1728. or sections 701.07,
3735.67 to 3735.70, 5709.40 to 5709.43, 5709.61 to
5709.69, 5709.73 to 5709.75, or 5709.77 to 5709.81 of
the Revised Code, or b) that involves public
infrastructure improvements or the extension of utility
services that are directly related to an economic
development project, and
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Executive Session for Economic
Development Matters
 2) A unanimous quorum of the public body must
determine, by a roll call vote, that the executive
session is necessary to protect the interests of
the applicant or the possible investment or
expenditure of public funds to be made in
connection with the economic development
project.
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Executive Session
 Can’t take action in executive session
 Only discuss the issues covered by your motion
for executive session
 Never go into executive session for “personnel”
purposes. You must list the specific portions of
the exception that apply.
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Executive Session
 Take care with conferences with attorney
– Pending or imminent litigation
– Fact-finding sessions with attorney — no
deliberations — not a meeting at all
 Body can invite anyone into executive session
 Records shared in executive session will be
public records unless a specific exception
applies
 Public body has the burden to prove that
executive session was for one of the excepted
topics.
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Penalties for Violation
 Any actions taken in violation of open meetings
laws could be rendered null and void. Example:
– Resolution that created a school district was
invalidated due to violations of the Open Meetings
Act.
– Piekutowski v. South Central Ohio Educational
Service Center Governing Bd., 2005 Ohio App. LEXIS
2691, 2005-Ohio-2868 (4th Dist. June 3, 2005)
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Public Records Act
 R.C. 149.43 Three Requirements:
– Public records must be “promptly prepared and made
available for inspection to any person at all
reasonable times during regular business hours.”
– “Make copies available at cost, within a reasonable
period of time.”
– “Maintain public records in a manner that they can be
made available for inspection in accordance with this
division.”
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What is a “Record”
 Information on a fixed medium
 Created, received or sent under the jurisdiction
of the public office
 Documents the organizations, functions, policies
decisions procedures, etc, of the office
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Does Everything Need to Be Turned
Over???
 No! But start with the presumption that
everything is a public record, but:
– Is it really a record?
– Is there a specific exemption?
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What is Not a Record?
 Does not document the functions of the office:
– Home addresses
– Personal information (your checkbook, etc.)
– Personal notes kept for your own use and not shared
with others
– Transient information
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What is Specifically Exempt?
 R.C. 149.43 as well as other code provision
– Exemptions under state law must be narrowly construed
– Common exemptions: attorney-client privilege; medical
records; tax information; trial preparation
 “Records the release of which is prohibited by state
or federal law.” R.C. § 149.43(A)(1)(v).
 Social security numbers. State ex rel. Beacon Journal
Publishing Co. v. City of Akron, 70 Ohio St.3d 605 (1994).
 Attorney-client privileged information.
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What is Specifically Exempt?
 Economic Development Exceptions:
– JobsOhio (R.C. 149.43(A)(1)(bb), R.C. 187.04(C))
• Records created by or received by JobsOhio
– CIC’s (R.C. 1724.11)
• Information remains confidential until the entity commits in
writing to proceed with project. All financial and proprietary
information, and other trade secrets remain confidential as it is
exempt.
– Port Authorities (R.C. 4582.091)
• Information remains confidential until the Port Authority takes
action to proceed with project. All financial and proprietary
information, and other trade secrets remain confidential as it is
exempt.
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What is Specifically Exempt?
 Trade Secrets: 1333.61(D):
– “any business information or plans” or “financial
information” that satisfies two statutory criteria:
• It derives independent economic value, actual or potential, from
not being generally known or ascertainable.
• It is the subject of efforts that are reasonable under the
circumstances to maintain its secrecy.
– Public entities can have trade secrets. State ex rel. Besser
v Ohio State Univ., 89 Ohio St.3d 535
– Public entities must take steps to protect the trade
secrets of others
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Scenario 3
 Who may attend a public body’s executive
session?
A. Anyone invited by the body.
B. Only elected officials.
C. Only elected officials and public employees
“essential to the discussion.”
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Scenario 4
 What is the proper motion to move into
executive session?
A. “I move to go into executive session to discuss the
promotion of an employee.”
B. “I move to go into executive session to discuss
personnel matters.”
C. “I move into executive session to discuss one of the
points identified by Ohio Revised Code as
appropriate for executive session.”
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Public Records Requests
 General Information
1. Any person can request a public record.
2. A public records request should be specific and
describe what is being sought.
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Public Records Requests
 General Information
3. You may deny an ambiguous or overly broad
request, but you must allow the requestor to revise
his request by telling him:
a)
b)
the manner in which the records are maintained by the public
office; and
how the records are accessed in the ordinary course of the
public offices' or persons' duties.
4. The records custodian is under no duty to seek out
and retrieve records that are of specific interest to
the requestor where the method of organizing
records makes such a task impracticable.
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1. “Prompt” Inspection
 Without delay / with reasonable speed
– Redactions
– Consultations with counsel
 During normal business hours
 Cannot charge for inspection
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2. Maintaining Records
 Organized for ready inspection and copying
 Make readily available to the public a copy of the
current records retention schedule
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3. Providing Copies
 “Reasonable period of time”
– Depends on facts and circumstances of request
 “At Cost”
–
–
–
–
Actual cost only – generally 5 to 10 cents per page
No personnel time
Mailing costs can be recovered
Has no duty to provide free copies to any individual
who cannot or will not pay for them, regardless of
indigent status.
– May require an individual to pay for the copies in
advance of the copying.
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What is a proper request?




Does not need to be written
Handling vague or voluminous requests
Requestor’s motive is irrelevant
Undue burden is not an excuse
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Responding to Requests
 Upon request, copies of public records shall be
provided within a reasonable amount of time.
R.C. § 149.43(B)(1).
– A “reasonable amount of time” is determined based
upon the circumstances of the request.
– Has no duty to provide free copies to any individual
who cannot or will not pay for them, regardless of
indigent status.
– May require an individual to pay for the copies in
advance of the copying.
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Responding to Requests
 Upon request, copies of the records shall be
transmitted by mail or other method of delivery.
 An individual may specify, with certain limitations,
that the copies of the public records be in a
specific medium.
 There is no requirement to create a new record
to fit the public records request. If the information
is in a format (e.g. computer) that would allow a
tailored response to the request, then it exists in
that form and must be disclosed in that form.
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Responding to Requests
 Redaction and withholding documents
– If a public body redacts a record, the person
responsible for the record must notify the person
requesting documents of any redaction made, or
make the redaction plainly visible.
– Any redaction of information pursuant to a public
records request is deemed to be a denial of the
request "except if federal or state law authorizes or
requires a public office to make the redaction.”
– Upon ultimate denial of a request, the public body is
required to provide an explanation, including citations
to legal authority, for its denial of a request.
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Responding to Requests
 Undue burden or expense is not a valid reason
for refusing to comply with a public records
request. State ex. rel Beacon Journal Publishing
Co. v. Andrews, 48 Ohio St.2d 283 (1976).
 Where a public records request unreasonably
interferes with the discharge of a records
custodian’s duties or endangers the safety of the
record, however, the public agency may not be
required to comply with the request.
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Responding to Requests
 Prohibition on limiting or conditioning availability
of records based on use or identity.
– Unless required or authorized by specific state or
federal law, a public office cannot limit or condition
the availability of public records by requiring
disclosure of the requesting person’s identity or the
intended use of the requested public record. Any
attempt to do so is considered a denial of the request.
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Responding to Requests
 Limits on asking for records requests in writing.
– Previously could ask but could not require that
request be placed in writing.
– Under HB 9, a public body can ask that a request be
placed in writing only if two conditions are met:
a) It may do so only after disclosing that a written request is
not mandatory, and that the requesting person may decline
to reveal his or her identity or the intended use of the
information; and
b) The public body may ask that the request be placed in
writing when a written request or disclosure of the identity
or intended use would benefit the requesting person by
enhancing the ability of the public office to identify, locate
or deliver public records.
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Penalties for Record Destruction
 How much can a public agency be fined for
destroying a public record?
– $1,000 penalty per record
• "Record," may be a single document within a larger file of
documents as well as a compilation of documents.
• "Violation," as used in R.C. 149.351(B), means any
attempted or actual removal, mutilation, destruction, transfer
or damage to a public record that is not permitted by law.
– $860,000 punitive damage award for the destruction
of records. (Kish v. Akron, 5:00CV 2047)
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Penalties for Record Destruction
 Each violation subjects the public body to:
– Injunctive relief
– Award of attorney's fees
– A civil forfeiture of $1,000 for each violation
 Avoiding the Kish problem — only destroy
records in accordance with your properly
approved retention schedule or application for
one-time destruction of obsolete records.
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Scenario 5
 Which of the following items is not a public
record?
A. Port Authority meeting minutes.
B. Chairman Vasquez’s meeting schedule.
C. Chairman Underwood’s personal notes from a
meeting with the County Economic Director.
D. An e-mail between Chairman Tusk and his aide, Ms.
Barnes.
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Scenario 6
 What two steps must a private entity take to
protect information as a trade secret?
A. Prove the information qualifies under the Ohio
Revised Code as “any information that derives value
by not being generally known.”
B. Show the information has been copyrighted or
trademarked.
C. Take affirmative steps to protect the information.
D. Demonstrates that no one outside of the corporation
has any knowledge as to the content of the
information.
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Questions?
Contact
Chris Schmenk
cschmenk@bricker.com
614.227.2323
or
Maria Armstrong
marmstrong@bricker.com
614.227.8821
or
Katie Johnson
kejohnson@bricker.com
614.227.2349
Bricker & Eckler LLP
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