Although Ohio State violated Ohio public records law in response to a Lantern request according to a special master’s recommendation, experts in media law said that issues in this case extend beyond the university and reflect even bigger issues regarding transparency and the public’s right to know.
Following a September public records request for police reports containing the names of Ohio State football players filed by The Lantern, a special master for the Ohio Court of Claims decided Friday that the university improperly redacted records and took too long to provide them.
Special Master Jeffrey Clark also found that the issues of redacting records and not providing them within a reasonable amount of time were likely to repeat.
The problem of transparency in public records pervades higher education, Frank LoMonte, director of the Brechner Center for Freedom of Information and former executive director of the Student Press Law Center, said.
“[Universities] don’t want people knowing that crimes occur,” he said. “They think it’s bad for their image. It’s bad for recruitment. It’s bad for donations. So they do everything possible to downplay the amount of crime. And if they can keep the crime out of the news by withholding key information, that benefits their marketing interests.”
Despite this, Jack Greiner, a Cincinnati attorney who often handles public records cases, said that universities have a responsibility to provide such records.
“They are critical public institutions and I think that the records of how they operate and how they’re operated are critically important for the public to see,” Greiner said.
Ohio State spokesperson Chirs Davey said in a text that Ohio State is still reviewing the report.
Former Lantern Editor-in-Chief Edward Sutelan first requested police reports, officer narratives and witness narratives involving football players for a seven-year period in September 2018. Ohio State originally denied the request for being overly broad, but then accepted the request after Sutelan revised the request for a shorter period.
In February — more than four months later — Ohio State responded with some of the records and a redacted report. Sutelan filed a complaint in the Court of Claims later that month stating that Ohio State improperly redacted the name of a suspect in a sexual assault reported on campus. Ohio State provided the name of the suspect May 14, eight months after the original request and three months after the complaint had been filed.
The suspect was revealed to be former Ohio State football player Brian Snead. Snead did not face criminal charges, but was found in violation of the student code of conduct and dismissed from the university Nov. 27.
LoMonte said that this is much too long, even if there were a large number of records requested. It is common practice, he said, for police departments to produce records on demand.
“We’re not living in the horse and buggy era,” he said. “Everything has been computerized. You can go to almost any county courthouse in America and do a search for people’s names and come up with every file associated with them instantaneously.”
In a situation where some records in a large set of requested records are older or more difficult to receive, LoMonte said the institution should provide the contemporary records immediately and notify the requester that some records will take longer.
To LoMonte, the length of time in this case represents a “disturbing” problem.
“That is either telling you that the university doesn’t take public records requests seriously and doesn’t consider them a priority or that their record keeping is such a disaster that they can’t find their own documents,” he said.
LoMonte said that timeliness in records requests is important because when a journalist needs a record, they need it “right away, not half a year from now” when the story is no longer relevant.
Even if a report is still newsworthy, it is then too late for the public to do anything about the crime, he said.
“The courts have always said that access delayed is access denied,” he said.
Ohio State said that it did not violate public records laws because the confidential law enforcement investigatory records exemption protects the identity of uncharged suspects, according to the report.
In the report, Clark said this exemption does not apply to initial incident reports.
“The public records exception that OSU relied on to withhold the name of the uncharged suspect for eight months did not apply to this incident report,” he wrote.
Greiner said that this is because the confidential law enforcement investigatory records exemption only applies to criminal investigations.
“The initial incident report gets the investigation started but it’s not really the investigation,” he said.
Ohio State argued that the record in question was not an incident report. Clark found that it was.
“A public office may not deny the existence of a manifestly public record merely by un-naming or renaming it,” he wrote in the report.
Greiner said that the special master’s recommendation “elevated substance over form.”
“OSU engaged in a form-over-substance approach here,” he said. “Their argument was essentially that it’s not an initial incident report unless we call it that, and had that been allowed to be the law, I think that that would have really turned the Public Records Act on its ear and not been a very good precedent.”
Greiner said he worked on a similar case in which the Chillicothe Police Department had a computerized reporting system and said that it was an investigatory record, while Greiner, acting as an attorney for Gannett GP Media, argued that it was, in fact, an initial incident report.
“We ultimately prevailed,” he said.
What happens next
Both parties have seven business days from when Clark’s report was filed to object. Whether an objection is filed or not, the court will then have seven business days to accept, reject or modify the special master’s recommendation, Greiner said.
If the court decides to accept the special master’s recommendations, LoMonte and Greiner both said they hope for new standards moving forward.
Greiner said he hopes that this will create a precedent for considering the substance of reports and that initial interactions between police and complaining parties will be considered initial incident reports.
“Call it whatever you want, but that’s going to be a public record,” he said.
For LoMonte, he said that he hopes that response time to public records requests will be adjusted.
“I really do hope that this will cause them to re-examine how long it takes them to comply –– that’s just, that’s not an acceptable turnaround time,” he said.
LoMonte said that the response is often that universities are overwhelmed with public records requests.
“If you don’t have enough people dedicated to responding to public records requests, that’s your fault,” he said. “If you’ve got enough people to write press releases, then you’ve got enough people to respond to public records requests; you’re just not prioritizing their time right.”