A number of districts have received public records requests asking for specific information relating to the curriculum that is being provided in the district. Please keep the following points in mind when complying with these requests:

  • Trade secrets are exempt from the Public Records Act. Trade secrets are defined in R.C. 1333.61(D) and includes information that gets its value from the fact that it is not generally known or readily ascertainable by other people who can obtain economic value from the information's disclosure or use. In order to be considered a trade secret, the district must make reasonable efforts to maintain the information's secrecy. In determining whether your district's curriculum falls within the trade secret exemption, consider the following factors: 1) the extent to which the information is known outside the district; 2) the extent to which it is known to those inside the district (i.e. by employees); 3) the precautions taken by the district to guard the secrecy of the information; 4) the savings effected and the value to the district in having the information as against competitors; 5) the amount of effort or money expended in obtaining and developing the information; and 6) the amount of time and expense it would take for others to acquire and duplicate the information. State ex. rel. Perrea v. Cincinnati Pub. Schools, 123 Ohio St. 3d 410, 2009-Ohio-4762.
  • Copyright laws may limit a district's ability to provide copies of textbooks, DVDs, and other protected materials. Educators are permitted to reproduce materials for classroom use in limited circumstances. In general, the reproduction of materials for other uses and copies of "consumable" items like workbooks, exercises, standardized tests, and answer sheets are protected by copyright laws and may not be copied without obtaining permission from the copyright holder. While you may offer available textbooks and DVDs to the requester at cost, districts should be cautious of making copies of the materials without first acquiring either a license to reproduce the materials or permission from the copyright holder.
  • A compilation of information must already exist before access to it will be ordered. Boards have no duty under the Public Records Act to create a new document by searching for and compiling information from its existing records. Although boards may elect to complete surveys, questionnaires, and other similar documents, they are not required to do so under the Public Records Act. The district should explain how such information is kept, and what records the requester would need to compile the information on their own.
  • A public office is under no duty to create a record to respond to the request. For example, if the district's processes are not recorded, but rather originated as the result of an unrecorded verbal communication, the district is not required to create a record documenting that process.
  • A public office may charge costs for copies and for delivery of the information. Districts may charge only the actual costs of supplies used to make the copies and for postage, packing supplies, and other actual costs associated with the method of delivery or transmission chosen by the requester. The cost of employee time cannot be included in the cost of copies or delivery. The district may require payment of costs in advance.
  • A public office is not required to provide an estimated response timeline. When a public records request is made, the public office must "promptly prepare" the records and provide copies "within a reasonable period of time." There is no standard amount of time by which copies of the records must be given. Districts should be cautious about promising timelines for requests. Failure to meet a self-imposed deadline can lead to statutory damages. Districts should instead offer to call or email the requester when the records are ready to be picked up.
Posted by OSBA Legal Ledger on 4/28/2010