State lawmakers have finalized an expedited process to hear complaints from citizens alleging they were wrongfully denied access to public records. The bill, Senate Bill (SB) 321, received unanimous votes in the Ohio House and Senate and is awaiting signature by the Governor.

Under current law, an individual may seek to compel the production of a public record by mandamus action, which is a lawsuit to compel a public official to perform a legal duty. SB 321 authorizes another avenue that individuals may use to resolve their public records disputes.

Under SB 321, that alternative process looks something like this:

1) An individual files a complaint.

  1. The complaint is filed with either the clerk of the court of claims or the clerk of the court of common pleas of the county where the school district is located.
  2. A form will be provided for the purposes of filing the complaint.
  3. The individual will attach to the complaint copies of the original records request and any written responses or other communications relating to the request from the school district.
  4. The individual will be required to pay a $25 filing fee.

2) The complaint will be served on the school district.

3) The court of claims will assign the complaint a case number and will assign a “special master” who examines the complaint and makes a decision whether to refer the case to mediation.

  1. “Special masters” are individuals who have been engaged in the practice of law for at least four years and who are in good standing with the Ohio Supreme Court.
  2. The special master may determine that “in the interest of justice,” the case should not be referred to mediation. In those instances, the special master would issue his/her report and recommendation based on the information contained in the complaint and its attachments.

4) If the case is referred to mediation, mediation proceedings will be conducted.

  1. Mediation may be conducted by teleconference, telephone or other electronic means.
  2. If an agreement is reached during mediation, the court shall dismiss the complaint.

5) If an agreement is not reached at mediation, the school district must file a response or motion to dismiss the complaint within 10 business days.

6) After receiving the response/motion, the special master will submit to the court of claims a report and recommendation.

  1. The report and recommendation is due no later than seven business days after receiving the response/motion, unless the special master elects to extend the deadline by an additional seven days.
  2. The report and recommendation must be based on the “ordinary application” of statutory law and case law, as it existed at the time of the filing of the complaint.

7) Either party may object within seven business days after receiving the report and recommendation.

  1. A party must file an objection with the court of claims if they are interested in preserving their right to appeal the final order to the court of appeals.

8) If neither party objects, the court shall promptly issue a final order adopting the report and recommendation, unless it determines that there is an error of law or other defect.

9) If either party objects, the other party may file a response.

  1. The response must be filed with the clerk within seven business days after receiving the objection.
  2. The court, within seven business days after the response is filed, shall issue a final order to adopt, modify, or reject the report and recommendation.

If the court’s final order determines that the district wrongfully denied the individual access to public records, the district must permit the individual to inspect or receive copies of the public records and the individual is entitled to recover from the public office the amount of the filing fee ($25) and “any other costs associated with the action that are incurred by the aggrieved person.” These costs do not include attorney’s fees, unless and until the final order is appealed to the court of appeals.

We will continue to provide information about the legislation and its impact on school districts after the Governor signs the legislation. If you have questions in the meantime, please contact the Division of Legal Services or your board counsel.

Posted by Sara Clark on 6/3/2016