As promised, the Ohio State Auditor's Office has issued a bulletin describing "best practices" for responding to public records requests. A central concept of the bulletin is the utilization of a public records request log. Although the utilization of such a log is not mandated, the State Auditor has declared his intention to incorporate a "best practices" review in future audits. The bulletin states: "During the 2012 annual financial or bi-annual financial audit, the Auditor's staff, in a sample of public offices, will analyze a public office's process and procedures to determine if the office has controls to ensure compliance with the Act."
Use of a Log
As the Auditor notes in his bulletin, there is no legal requirement that a public office keep a public records log. In an era where all public offices are facing economic challenges, the thought of adding any process not required by law is likely to be viewed as just another drain on public resources. Also, by creating such a log, a public office is simply creating a public record about a public record. As a result, the office must now be concerned about the retention of two public records instead of one.
The Auditor, however, defends his recommendation for a log as something that "will help public offices navigate the requirements of the Act, minimize risk, and, ultimately, provide for more efficiency." The Auditor also points out that many public offices already keep the information, so that a log is simply a way of "keeping all of that information in one central location." As a result, the Auditor advises that all requests which are not immediately fulfilled be logged at the time they are made.
The Auditor recommends that the following information be logged:
- date of request;
- name of person or entity making the request (if provided);
- type of records requested;
- date of release;
- legal authority for any redactions/withholdings;
- name of person fulfilling the request.
The Auditor also suggests that public offices keep copies of all public records that have been redacted.
If your public office determines to keep a public records log, you should check your records retention schedule and, if necessary, amend it to provide a retention period for the log.
One of the Auditor's other suggestions must be approached with extreme caution. Specifically, the Auditor recommends that each public office "[a]cknowledg[e] receipt of a request that requires legal review and possible redactions, [and] include guidance on when you anticipate responding" (emphasis added). While the issuance of a receipt may be helpful, "predicting" a response date is hazardous.
Amendments to the Public Records Law in 2009 allow the award of attorneys fees if a public office "promised" to supply the public records within a specified period of time "but failed to fulfill that promise." See Revised Code Section 149.43(C)(2)(b)(ii). Given this, public offices would be well-advised to exercise great care, and perhaps consult legal counsel, prior to making any kind of prediction about when public records will be available.
The full text of the State Auditor's bulletin is available on the Ohio Auditor's Office website.