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Bill: Old records exempt from public disclosure law may see light of day

KEITH ARNOLD
Special to the Legal News

Published: August 18, 2017

A bill before members of a committee in the Ohio House of Representatives may be an amateur genealogist's dream.

House Bill 139 targets a set of permanently retained public documents, such as those related to adoptions, county home registers, juvenile court cases and witness dockets, and seeks to make them public 100 years after the date of creation.

The bill, however, would not apply to records protected by the attorney-client privilege and trial preparation records.

Constituents of Rep. Rick Perales, R-Beavercreek, raised the issue with the lawmaker.

"This is important information one would need to discover their family's heritage or the history of their region," Perales told his peers on the State and Local Government Committee. "... The sealed time period of 100 years takes into consideration any complications or emotional impact that opening these records might have for certain individuals since it allows the time span of at least one generation to pass.

"This is similar to the federal policy to lift restrictions on United States census records after 72 years."

The Public Records Act contains an extensive list of categories of records kept by public offices that are not public records, which means the records are not subject to disclosure, including medical records, intellectual property records and records the release of which is prohibited by state or federal law.

HB 139 specifies that a record, exempted by the act and permanently retained, according to law, becomes a public record on the day that is 100 years after the day on which the record was created.

Again, an exception is included for records protected by attorney-client privilege and those associated with trial preparation.

"In other words, once an exempt record reaches the 100-year mark, the record is no longer exempt and must be disclosed to anyone who requests to inspect or obtain a copy of it," analyst Bethany Boyd wrote for the Ohio Legislative Service Commission's review of the bill.

Any statute that incorporates a time period for record disclosure in conflict with the 100-year time period would retain supremacy over HB 139's provision.

"Closure of these records is based on a general understanding of a person's right to privacy," said Galen Wilson of the National Archives and Records Administration's Office. "Long-standing principles of common law state that this right expires at death.

"Records must be temporarily closed to satisfy this right to privacy, but in some Ohio counties, these records remain closed forever, creating a disconnect affecting both custodians and potential users."

Speaking from his own experience as an archivist and records manager, Wilson said county archives are left to bear the cost of records maintenance for useless documents that, otherwise, could be thrown away.

"Users are frustrated because public records created by taxpayer investment exist, but cannot be seen," he added.

He characterized continued adherence to existing policy as "misguided paternalism."

Perales noted that the Ohio legislature in 2015 passed a measure opening confidential records of the Department of Mental Health and Addiction Services 50 years after the patient's death. Additionally, several other states already have passed open access legislation for similar types of historical records.

"... With the rich and vibrant history of this state, it is our duty to make sure our future generations the ability to tell that story," the lawmaker said.

Wood County Records Manager Brenda Ransom, who serves as chair of the Ohio County Archivists and Records Managers Association, said a uniform policy would result as a consequence of the bill.

"Unfortunately, there is great variance from county to county regarding whether such records should be made public for any reason," Wood told committee members. "That the records are historical are not questioned, but whether or not that historical value should be made available is unclear to many.

"HB 139 would address this and provide the people of Ohio an opportunity to come to a greater understanding of the shared experiences of generations past and present."

The bill is supported by County Archivists and Records Managers Association and has been vetted preliminarily with state agencies and organizations, including the office of the Ohio Attorney General, without opposition.

Rep. Candice Keller, R-Middletown, is joint sponsor of the bill, which had not been scheduled for a third hearing at time of publication.

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