Two rulings against open records. Is Ohio Supreme Court shifting away from transparency?

In a matter of four months, the Ohio Supreme Court ruled against releasing information in two public records cases, and it is now weighing what to do two other high-profile records fights.

In a 4-3 decision issued in January, the court held that the cost of sending troopers to protect the governor at a Super Bowl game weren’t subject to disclosure. And in a 5-2 ruling in April, the court said that the Ohio Department of Health should redact from a database the names and addresses of Ohioans who had died, even though that death certificate information is released on a one-by-one basis.

Both of those lawsuits were filed by the owners of this newspaper.

Pending before the court now are two cases about whether police officers’ names can be withheld under a new law that is supposed to protect crime victims.

Cleveland area attorney Brian Bardwell, a former journalist who operates Speech Law LLC, said the two recent rulings are evidence of a long-running hostility toward open records from the Ohio Supreme Court.

“When it comes to government accountability, civil rights, public records, the solutions for the courts is always to just close the doors tighter and tighter and keep people out. They just want people to stop filing these cases and go away,” Bardwell said. “What they really need to do is start doling out harsher and harsher punishment to mayors and public police officers and other government officers who want to operate behind closed doors.”

But Columbus attorney Fred Gittes, who has been litigating open government cases for nearly five decades, said it’s difficult to predict how the supreme court will rule on records cases and the two decisions this year don’t make a pattern.

Ohio’s ‘sunshine’ laws

Ohio has “sunshine” laws designed to hold governments accountable and help the public know what their governments are doing.

The open records law lays out what records − budgets, meeting minutes, personnel files, police reports and more − must be disclosed upon request. The open meetings act requires public bodies to hold their meetings in the open.

Both laws have exceptions. For example, public bodies can meet behind closed doors to discuss pending litigation or the purchase of property. The open records law allows withholding records related to trial preparation, juveniles, public employees’ home addresses and other matters.

Should police officers’ names be disclosed?

The Ohio Supreme Court is considering other public records cases that could have sweeping implications for open government. Two cases involve how to interpret Marsy’s Law, a voter-approved constitutional amendment that is supposed to protect and support crime victims.

Police agencies across Ohio have used Marsy’s Law as grounds for not disclosing names of officers involved in fatal shootings and use of force. In cases where officers have been assaulted or injured in those incidents, they’re categorized as crime victims.

Nadine Young asked the Ohio Supreme Court to order the Blendon Twp. Police Department to disclose the names of the two officers involved in fatally shooting her daughter, Ta’Kiya Young, in a Kroger parking lot in August 2023. The police department argued that Young assaulted officers with her car, making them the victims.

The Young family and the Ohio Crime Victims Justice Center sued over the redactions, saying Ta’Kiya Young was the crime victim, not the officers. The Ohio Supreme Court ordered the police department to identify the officers to the court but has yet to rule on the overall case.

The Columbus Dispatch filed a similar lawsuit in October 2023 against Columbus police for failing to disclose names of officers involved in fatal shootings and use of force.

Police and the Franklin County Sheriff’s Office declined to release footage or names after four officers and a deputy were involved in a July 2023 shooting that left 45-year-old Antwan Lindsey dead.

After three young boys were shot and killed at their home in Clermont County in June 2023, the sheriff’s office cited Marsy’s Law and redacted documents containing the officers’ narratives of the incident.

Cincinnati police have been withholding the names of homicide victims and redacting their names from incident reports for months, citing Marsy’s Law.

And the Akron Beacon Journal is suing the city of Akron to force disclosure of the identities of officers involved in three separate fatal shootings. That case, filed in 2022, does not involve Marsy’s Law. It is pending before the Ohio Supreme Court.

Gittes said in his opinion, police shouldn’t be allowed to keep their identities secret under Marsy’s Law because officers’ accountability is crucial given their power to arrest and use deadly force.

Without transparency, there is no accountability, he said.

Bardwell isn’t hopeful that the Ohio Supreme Court will rule in favor of transparency in the Marsy’s Law cases and that will give police agencies the go-ahead to hide more records. “If you give the police an inch on secrecy, they’re going to take a mile and I’m betting that’s where we’ll end up here as well.”

Lawmakers probably won’t make changes

State lawmakers could change the state law that describes how Marsy’s Law operates, change the laws that protect health care information from disclosure or make other tweaks to increase transparency.

“I won’t be holding my breath on it,” Bardwell said.

Gittes agreed and said lawmakers are more likely to add more exemptions to the open records law.

“Over the last few decades, the Legislature has been increasingly hostile to open government, records in particular,” he said.

Laura Bischoff is a reporter for the USA TODAY Network Ohio Bureau, which serves the Columbus Dispatch, Cincinnati Enquirer, Akron Beacon Journal and 18 other affiliated news organizations across Ohio.