The Ohio Supreme Court recently issued a decision against a public agency in a public records lawsuit. In State ex rel. Cincinnati Enquirer v. Jones-Kelley (2008), 2008-Ohio-1770, the Ohio Supreme Court created a "rule of thumb" for establishing the burden of proof: when applying an exception to disclosure, each record must stand on its own. The Jones-Kelley decision is a good lesson for public offices that attempt to overuse exceptions to Ohio's Public Records Act.

The case involved a public records request from the Cincinnati Enquirer for the Ohio Department of Job and Family Services ("ODJFS") to provide access to an electronic copy of a database of the names and addresses of certified foster caregivers in the state. The Director of the ODJFS asserted in the agency's defense that the names and addresses of all foster caregivers certified by the state are exempted from disclosure by (1) federal and state law because foster caregivers are recipients of payments from a government program that prohibits disclosure, (2) state law concerning data entered into the uniform, statewide, automated child-welfare-information system ("SACWIS"), and (3) a "good sense" rule consistent with public-records precedent. The ODJFS applied these as blanket exceptions to all of the records requested by the Cincinnati Enquirer, not just specific records.

In public records lawsuits, the custodian of the records has the burden to prove that the requested records are exempt from disclosure because they fall squarely within an exemption listed in Ohio's Public Records Act. In Jones-Kelley, the Supreme Court held that "the director still bears the burden of establishing that these federal and state exceptions to disclosure are applicable to the requested record." More specifically, as to the first exemption claimed by the Director, she failed to introduce "evidence that all of the certified foster caregivers in the requested record had received or were receiving foster-care maintenance payments or had applied for them at the time of the Enquirer's request." The Court rejected the second exemption claimed by the Director as well, stating: "Again, we believe that the proper course is to allow the director to establish which information fits into this exception to disclosure." Finally, the Court rejected the Director's third exception, because a "good sense" rule does not except a public record from disclosure under Ohio's Public Records Act.

Because the Director did not provide the required proof, the Court ordered her to conduct a review of each record to determine if an exemption applied. The Court mandated that any record to which an exemption is inapplicable must be divulged to the Cincinnati Enquirer pursuant to its public records request.

Message to public offices: review each record thoroughly before relying on a specific exception. Categorically denying a public records request is not usually appropriate. Public offices should seek legal review of requested records that are not clearly defined as exempt from disclosure. DH&F maintains a list of standard exceptions to public records disclosure. If you are interested in obtaining an exception list, or if you have any other public records questions, please do not hesitate to contact Todd Ellsworth at (614) 221-1216, or by e-mail at tellsworth@dhflaw.com.