Proposed Amendments to Ohio Rules of Superintendence of the Courts/ Access to Court Records

A number of articles appeared in local papers last weekend about the Ohio Supreme Court’s Commission on the Rules of Superintendence endorsing a measure on June 27th. that would allow parties in a court case to redact “personal identifiers” such as social security & bank account numbers, and the names of children. (See Columbus Dispatch article here; Cleveland Plain Dealer, Toledo Blade )

The proposed amendments still have to be approved by the Court itself, which probably won’t address them until next month. It was also indicated that the Commission had recommended time for additional public comment on them. Media organizations, employment-screening firms and private investigators had criticized an earlier version of the rule amendments published for public comment last November; some of those provisions had been scaled back.
The Cleveland Dispatch article revealed that Mahoning County Juvenile Court Judge Theresa Dellick, the only member of the Commission to vote against the rules, still feels the proposals are too restrictive.

David Marburger, a Cleveland attorney who represented the Toledo Blade and other media organizations in comments on the earlier draft, questions the Court’s authority to issue general rules he says “go beyond administrative

In support of the proposed rules, Chief Justice Moyer last year wrote, “For more than 200 years Ohio courts have balanced the fundamental principle of openness articulated so gracefully by Judge Rufus B. Smith of the Superior Court of Cincinnati (when it had existed), with the equally important privacy rights of individuals and other societal concerns. The proposed rules are an attempt to continue to strike this critical balance in the new information age.”

The Chief Justice said, “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,” He went on to say. 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 remains the bedrock of Ohio public records law to this day….. But, while the courts in Ohio have always acted in accordance with the Public Records Act, the act does not govern the courts, which is why the important constitutional principle of separation of powers requires that the Supreme Court regulate court records through its Rules of Superintendence…”

Justice Paul Pfiefer addressed public records in 2000 and again in 2005 in two of the weekly columns he’s been writing at least since 1999.

The Court’s decision in State ex rel. Montgomery County Public Defender v. Siroki in March 2006, we have found, summarizes the issue in good detail, saying in pertinent parts that “ORC § 149.43(A) envisions an opportunity on the part of the public office to examine records prior to inspection in order to make appropriate redactions of exempt materials (State ex rel. Warren Newspapers v. Hutson, )… One of the recognized exemptions is the constitutional right of privacy, which precludes disclosure of Social Security numbers (State ex rel. Beacon Journal Publ. Co.v. Akron).

In the Montgomery case the Court also says it specifically held in State ex rel. Highlander v. Rudduck, that “public-records custodians should redact Social Security numbers from otherwise public records before disclosing them under ORC § 149.43”

The Commission chair, Justice Judith Ann Lanzinger, said there are probably going to be problems with the implementation of the rules, but that they’re “trying to create a balance as best we can.” She also is encouraging the proposal for additional public comments before the Court makes its final decisions.