County board personnel should be wary of a provision in House Bill 9 (effective September 29, 2007) which can impose substantial costs for what might seem to be a minor offense. Specifically, House Bill 9 (Public Records Law amendments) declares that a court of law must impose attorney fees when it orders the production of records if it also finds that the public office promised to allow inspection or copying within a specified period of time “but failed to fulfill that promise within that specified period of time.” (ORC 149.43[C], as amended.)
This new provision is significant in that it allows a public office to create, in effect, a self-imposed “hard deadline” for the production of public records. House Bill 9 does not itself impose any fixed time period for the production of records—rather, it retains the prior generic statement that records must be made available “promptly.” County board personnel might therefore be surprised to find that a casual statement made to a requester, indicating when the records will be available, could cost the agency tens of thousands of dollars in attorney fees, should the records not in fact be produced at the promised time.
It seems likely that some individuals will want to play “gotcha” with this new provision of House Bill 9. To protect against this, agencies may want to instruct their office staff and others responsible for the production of public records to be careful to avoid any specific statements as to when a given record will be available. If for some reason a statement cannot be avoided, it may be advisable for the county board’s response to include a “best efforts” disclaimer clearly indicating that the predicted availability date is an estimate only and does not constitute a guarantee or “promise” within the meaning of the Public Records Law.
It should be noted that HB9 applies only to requests for public records and that many of the types of records kept by a county board of MR/DD are not public records subject to disclosure.