In Ohio the State Law which governerns PUBLIC RECORD REQUESTS is Section 149.43 of the Ohio Revised Codes.
On May 20, 2009 I emailed the following request to the City of Cleveland.
Public Records Request
May 20, 2009 By email
Mr. Robert J. Triozzi, Esq., Director
And
Kim L. Roberson, Public Records Administrator
City of Cleveland Law Department
601 Lakeside Ave., Room 106
Cleveland , Ohio 44114
This public records request concerns the
Tremont West Development Corporation (TWDC), which is one of Cleveland ’s CDC’s and which is a taxpayer funded governmental sub-division of the City of Cleveland .
I request the list(s) of voting members (with their addresses) of the TWDC during the years 2006 to the present.
I have personally requested this membership list from the TWDC Board at a recent public hearing of the Board and the Board refused to provide the list claiming that the TWDC is a “private” non-profit and that the membership list record is not a public record. The TWDC does, however, selectively provide their membership list with member’s contact information to certain persons and entities without their member’s authorization, effectively waiving any claim of “privacy”.
As a practical matter, one reason the TWDC voting members list is an important public document is because if you wish to run for the Board, the list is necessary in order to be able to contact the voting members and solicit their vote in the manner a candidate chooses. The list is also important because only if it is public can its accuracy be vetted.
Just as anyone can go to the Cleveland Board of Elections on Euclid and get a CD of the registered voters (with their addresses) in each of Cleveland’s voting precincts, so should citizens be able to go to their CDC’s (or go to the City of Cleveland as I am now doing) and get a list of the CDC’s voting members.
I believe the Ohio Public Records Law ORC 149.43
et seq and pertinent Ohio public records case law supports this request. Should the Law Department claim that the membership list of the TWDC is exempt as a public record, then I would appreciate your responding as stated in
The City of Cleveland Public Records Policy quoted below:
“All exemptions are to be construed in favor of disclosure as required by law and any denial of public records in response to a valid request must be accompanied by an explanation, including legal authority, as outlined in the ORC. If the request is in writing, the explanation must also be in writing.”
Please respond by email.
Sincerely,
Jeff Buster
Cc
Chris Garland, Executive Director TWDC
Councilman Joe Cimperman
On June 2, 2009 I received the following email from Ms. Roberson:
Public Records Request Response
Tuesday, June 2, 2009 11:27 AM
From:
"Roberson, Kimberly" <KRoberson [at] city [dot] cleveland [dot] oh [dot] us>
Cc:
"ward13 [at] clevelandcitycouncil [dot] org" <ward13 [at] clevelandcitycouncil [dot] org>, "Roberson, Kimberly" <KRoberson [at] city [dot] cleveland [dot] oh [dot] us>, "Orta, Maria" <MOrta [at] city [dot] cleveland [dot] oh [dot] us>
Mr. Jeff Buster
This email is in response to your public records request for a copy of records regarding Tremont West Development Corporation (TWDC) providing the list of voting members with their addresses during the years 2006 to present.
In response, the City of Cleveland does not maintain nor have this record in our possession. Please contact the Tremont West Development Corporation (TWDC) directly for their list of voting members.
Sincerely,
Kim L. Roberson
Public Records Administrator
City of Cleveland
Department of Law
601 Lakeside Avenue, Room 106
Cleveland, Ohio 44114-1077
Tel: (216) 664-2772
Fax: (216) 420-8560
KRoberson [at] city [dot] cleveland [dot] oh [dot] us
________________________________________
On June 15, 2009 I wrote back to Ms. Roberson as follows:
Kim L. Roberson June 15, 2009
Public Records Administrator
City of Cleveland
Department of Law
As I explained in my earlier public records request, I have already requested the membership list documents from TWDC. However the TWDC Board maintains that the records are “private” and they refuse to provide the records. Rather than institute legal action against the TWDC in an attempt to obtain the public records, I believe that because CDC’s are a governmental subdivision of the City of Cleveland, that I may request the records directly from the City and the City has the obligation to assemble the records for review and copying.
However, in response to my earlier public records request re: TWDC, you stated
“the City of Cleveland does not maintain nor have this record in our possession”
I now request (as a public records request) that the City of Cleveland provide all emails, phone logs, documents, and any other communications/records which were generated by any one representing or employed by TWDC, the City of Cleveland (including any City Counselor(s) or other City of Cleveland employees, and the Law Department) or which mention Jeff Buster, or mention/concern TWDC or other CDC membership lists or records between the time of my earlier request and now.
In particular I am requesting any documents or correspondence which might shed light on how the City of Cleveland determines if a record is “maintained” by the City or is in the “possession” of the City.
I am also requesting any documents which discuss any understanding between the City and TWDC as to how my earlier public records request for TWDC membership lists/records be responded to or “handled”.
I am requesting any historic document which defines who/what entity has to “maintain” a document for it to be considered “in the possession” of the City? Is there any document which defines/ or helped you determine, whether or not a document is “in the possession of the City vs not in the possession of the City?
What determines if a document is “in the possession” of the City of Cleveland?
For example, does the document have to be housed in a certain building or kept by a certain department or division or agency, to cause the document to be then determined to be in the City of Cleveland’s possession?
Or, is a document considered to be in the City of Cleveland’s possession if the City can request the physical document from a City of Cleveland governmental sub-division such as a CDC?
Or on each record request – such as mine – is “possession” determined ad hoc?
If the City claims privileged as to any document, email, etc, covered by this request, please provide the name of the sender, name of recipient, date, type of communication (email, letter) and the general substance of the communication.
Thank you,
Jeff Buster
____________________________________________________________________________
As of July 6, 2009 I have not had any further response from the City (I just sent an email reminder to Ms. Roberson) , so I am investigating what the next step is as specified by the Ohio Public Records statute.
______________________________________________
It appears from Section (C) 1 paragraph 2 of the statute that a written copy of your public records must be hand delivered or sent via certified mail in order to establish a delivery date certain for the purposes of eventually obtaining a mandamus (a court order) with the potential of recovering statutory damages ($100 per day with a limit of $1,000).
I will wait a few more days and then drop off a printed/signed copy of the June 15th request at Cleveland City Hall.
If anyone has had experience bringing a public records request to court in Ohio, please extend your advice and suggestions.