Ohio Man Fined for Open Records Request
Cleveland, OH Brain Bardwell was ordered by an Ohio court on Monday to pay $1,050 to Cuyahoga County to cover the cost of the attorney who prosecuted his open records request lawsuit. Bardwell, who runs a non profit group called Citizens for Sunshine, made an open records request for documents relating to a potential medical mart, to be constructed in Cuyahoga County.
The Records Request
Bardwell submitted the open records request in March as a concerned citizen. The Cleveland Newspaper, the Plain Dealer, had submitted a similar records request, seeking information on the counties planned medical mart and the anticipated contracts with MMPI, the firm that will run the mart upon its construction. The newspaper and the county arrived at an agreement outside of court, with the county agreeing to release all of the draft contracts to the newspaper a week before the County board voted on the matter. However, prior to this agreement, Bardwell had requested not only the draft contracts but also any correspondence between the newspaper and the county. The county agreed to release the communication with The Plain Dealer but rejected the request for the contract, claiming that the contracts fell under attorney client privilege. Bardwell filed suit. 
Ruling of the court
The Ohio Eighth District Court of Appeals ruled against Bardwell, criticizing him for his numerous records requests. First Assistant Cuyahoga County Prosecutor Mike O'Malley told reports, "Bardwell has taken a good law and used it for a bad purpose. He never wanted public information, only a financial gain at the expense of taxpayers." The court told Bardwell that, if he continued to file pointless open records lawsuits, he could be barred from making open records requests. Bardwell has filed some 19 lawsuits against various Ohio municipalities and government bodies, most of which have ended in fines and payments made by the public bodies.
Bardwell plans on appealing the decision.
The affect on Ohio Open Records Law
This case presents a drastic blow to the open records community in Ohio and across the country. Attorney David Marburger of Baker & Hostetler, the firm who represented the Plain Dealer in their case, told reporters that the ruling represents a "a gigantic inhibitor of ordinary citizens trying to use the public-records act". This ruling will, in effect, discourage individuals from making records requests for fear of the assignment of fines based on requests which are deemed illegitimate. This comes from a state whose open records law allows for anonymous records requests and which does not permit agencies to consider either purpose or the use of records when considering whether to deny records requests.
Limited release of records
Various state courts have ruled on the limited release of public records requests. California law holds that exempted records can be released if the agency feels it is in the public interest. However, if the agency chooses to release the records, it must do so for the entire public.(see Black Panther Party v. Kehoe) On the other hand Massachusetts law permits the release of exempted records, or portions of exempted records to individuals and the press without removing their exemption from records requests from the general public (see Bougas v. Chief of Police of Lexington). If Bardwell appeals the decision, the Ohio Supreme Court may have to rule on this very issue.
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- ↑ 1.0 1.1 1.2 1.3 The Plain Dealer, "Court finds records-request suit 'in bad faith,' orders payment"