On Tuesday, July 17, 2012, the Supreme Court of Ohio launched an expanded news program – Court News Ohio – that features stories about the Ohio judicial system. This archived page on the Supreme Court’s website only displays news stories that occurred before that date. News stories that occurred on July 17 and thereafter can be found at www.courtnewsohio.gov.

Feb. 12, 2008
Chief Justice Offers Historical Perspective on Public Records, Open Government

More than 100 years ago, drawing on a large body of law, a Cincinnati judge first crystallized a fundamental principle that is still a cornerstone of Ohio government. Today, Ohio judges are working to take this important concept into the 21st Century.

“Public records are the people’s records. The officials in whose custody they happen to be are mere trustees for the people ….”

So wrote Judge Rufus B. Smith of the Superior Court of Cincinnati (a body that no longer exists) in 1901. The Supreme Court of Ohio quoted Judge Smith verbatim when it first adopted this universal principle of openness as statewide law in 1960. The idea was codified in statute with the passage of the Public Records Act in 1963. It was reaffirmed in 1976 in the foundational public records case of Dayton Newspapers v. City of Dayton, decided by the Supreme Court of Ohio, and it remains the bedrock of Ohio public records law to this day.

The Supreme Court of Ohio is currently engaged in an administrative process to craft judicial rules that will maintain this principle and keep court records open.

The Supreme Court Commission on the Rules of Superintendence, chaired by Justice Judith Ann Lanzinger, has proposed draft rules that court records are presumed open unless otherwise exempt as particularly specified. The language for the rules was proposed by a subcommittee that included members of the public and media, the rules were put out for public comment, and the commission is now considering amendments based on the considerable public input we have received.

Two very important realities have prompted the commission to propose these new rules.

First, ubiquitous access afforded by the Internet has changed the very nature of records and how they are accessed. The identity of juvenile sexual assault victims and the accounts of their victimization, the painful and highly personal details of the lives of couples seeking divorce, and the accounting of assets in a deceased person’s estate and the value of the inheritance they pass to their children are all issues routinely brought to courts in Ohio every day. When should these records be public? The answer is, “almost always.” But the question looms large when “public” no longer means available for review in a Courthouse, but now means accessible through Google, displayed on MySpace, or played on YouTube. It is this question that the proposed rules seek to answer.

The second reality that necessitates these rules is a matter of constitutional law. While the courts in Ohio have always acted in accordance with the Public Records Act, the act does not govern the courts. The important constitutional principle of separation of powers requires that the Supreme Court of Ohio regulate court records through its Rules of Superintendence for the Courts of Ohio.

The discussion surrounding the proposed rules is complicated because it is taking place within the larger context of the debate about what the new information age bodes for public records. Unfortunately, some have served to debase and convolute this important discussion. Newspaper editorials proclaim public records are “under assault.” Headlines scream of a “shroud of secrecy.” One newspaper columnist even went so far as to write: “At the rate we’re going in Ohio, someday there won’t be such a thing as public records.” Nonsense.

In fact, Ohioans enjoy one of the most open forms of government in the world. Here is just a sample of the records that the Supreme Court has upheld are open and available to the public:

There are no serious proposals to foreclose access to these records.

The Supreme Court has taken many months in an open, deliberative process to consider the nuances and implications of these proposed rules, and will likely take several months more. And, as is the case anytime the Court proposes new rules or changes, the final adopted version often times is different from the original proposal based upon thoughtful and insightful public comment.

For more than 200 years, Ohio courts have balanced the fundamental principle of openness articulated so gracefully by Judge Smith, with the equally important privacy rights of individuals and other societal interests. The proposed rules are an attempt to continue to strike this critical balance in the new information age.

But just do not take me at my word. Examine the public access proposals at http://www.supremecourt.ohio.gov/ruleamendments/ and gauge for yourself how close we have come to striking that critical balance.

If one can say there are heroes for public records in Ohio, it is no accident that among them was a judge. And it is judges who are among those leading the discussion on keeping government open and accessible to the people.

Thomas J. Moyer is the Chief Justice of the Supreme Court of Ohio

Contact: Chris Davey at 614.387.9250.