July 21, 2014
Most states have “sunshine laws” that apply to state and local government, laws that require government meetings to be held in the open and government records to be accessible to the public. Frequently, those laws have real teeth, giving private litigants an award of statutory and attorneys fees if they prevail. (This is absolutely necessary in order for the common man to fight for open records and public meetings in court, an expensive proposition, against a well-funded and intransigent government.) Such is the case in Ohio, that has well-written open meetings and public records laws.
Unfortunately, the Courts have managed to neuter both in Ohio. In the public records context, the Ohio Supreme Court has interpreted the open records statute, in this decision, to say that if the records are produced before the end of the litigation, no attorneys fees are to be awarded under the Ohio statute. Now, the Ohio statute does not say that, but … it does now. In the open meetings context, this decision (for Hamilton County) and this decision (for Butler, Clermont and Warren Counties) say that “discussions” do not have to be in public, but “deliberations” do. The judicial districts in Ohio disagree on this standard, and the Ohio Supreme Court has declined to clarify the issue. Thus, that distinction between discussions and deliberations is also not in the statute, but … it is now.
This article addressing frustrations with judicial interpretations of the state of Michigan open meetings laws shows that Courts in other states have managed to muddy the waters as well.
In short, most states have fairly clear open meetings and public records laws. It is up to the Courts to determine if we get to keep them.