An Ohio court has been advised to rule that the Geauga Park District violated the state’s open records law when it denied a Russell Township resident’s request for a copy of a letter cited at an Aug. 8, 2017 park board meeting.
Jeffery W. Clark, serving as special master for the Ohio Court of Claims, recommended last week that the court issue an order that Shelley Chernin’s Aug. 14 request for the letter be honored and she be given the document. In addition, Mr. Clark ordered that the park district pay her costs associated with the eight-month fight to get the copy, including the $25 filing fee Ms. Chernin paid to bring the case before the court of claims.
The park board had argued that the letter, cited by park board member Andrej Lah, did not constitute a public record and attempted to have the case dismissed.
At the Aug. 8 meeting last year, Mr. Lah cited the letter that purportedly stated one person’s fear of reprisal for their views opposing a nonprofit organization known as Protect Geauga Parks, whose members have been frequent critics of some policies instituted by the board.
“She didn’t want her name to be used because she’s afraid of being harassed by a certain group,” Mr. Lah said at the Aug. 8 meeting. “Preserve, protect or whatever that’s called. She doesn’t want to be harassed by them and she’s in fear of that harassment. So, there’s also a perception that there is a particular group of people that if you have an opinion that may be a little bit different that you will be subjected to ridicule.”
But, Mr. Clark cited the Ohio Supreme Court’s determination that public scrutiny of public officials and their actions are necessary to allow the public to hold government accountable.
“The Supreme Court affirms that ‘public scrutiny is necessary to enable the ordinary citizens to evaluate the workings of his or her government and hold government accountable,’” Mr. Clark wrote.
He pointed out the dangers of a government that can withhold that type of scrutiny.
“If constituent letters summarized and relied on by a board member can be withheld from public access, then officials can bring stacks of paper to public meetings, declare that they are all letters supporting their position, but refuse to allow the public to examine them for confirmation,” Mr. Clark wrote. “This is the very antithesis of public scrutiny.”
Mr. Clark noted that Mr. Lah, as a park board member, acted as a “trustee for the people” in having possession of the letter and that the public has a “right to inspect and compare their content to Lah’s representations to the board and the public.”
Mr. Clark further noted that Mr. Lah’s assertion that he promised confidentiality to the author of the letter carried no weight. “A contractual promise of confidentiality with respect to an otherwise public record is void ab initio (to be treated as invalid from the beginning),” he wrote. “Thus, even if Lah had agreed to keep the constituent’s identity or email address confidential, such agreement would be of no force or effect in response to a public records request. Although not asserted by respondent (the park board), I note for completeness that no general privacy right applies to correspondence sent to a public office.”
Mr. Clark said the board could not redact any portions of the letter that Ms. Chernin has requested.
Ms. Chernin had made similar arguments, as cited by Mr. Clark, when she requested the letter from the park district. “In my opinion, discussing the letter at a public meeting and in essence stating that the letter affects park district policy made it a public record,” she said in December. “If they get an unsolicited letter from Joe Public, ignored it and threw it in the trash, then maybe it would not be a public record.”
Ms. Chernin’s initial Aug. 8 request was first addressed three days later by Park Director John Oros, who wrote that the park was working on the request, but a response would be delayed because staff was working on a park event. Two weeks later, he fulfilled a portion of request, but withheld the letter, stating it was not a public record, offering no other reason under privacy law or statutory provisions.
It was then that Ms. Chernin turned to a new 2016 state program through the Ohio Court of Claims, designed to assist the public in disputes over public records.
Ms. Chernin said last week she was pleased she was proven right.
“Obviously, I’m very pleased that the special master has said that the park district can’t publicly discuss the alleged contents of a letter and then hide the letter from the public,” she said. “So, it’s a victory for democracy, transparency and open government. I look forward to finally seeing the letters and comparing them with what Commissioner Lah said they stated.”
She said she has been promised the letter within seven days of the March 26 recommendation by Mr. Clark.