Tom Curtis and the AG's Office re: Public records

From Robert Moormann, March 23, 2009
Subject: RE: 032009 Curtis, Re Moormann, Public Records Question

Mr. Curtis,

I do understand your frustration with the inability of certain government offices to assist with you records request. Unfortunately, the Attorney General was not given the power to investigate or file complaints on behalf of citizens who felt that Ohio's open government laws had been violated. However, legislation was introduced in the 127th General Assembly that would create the Office of Public Access Counselor. This legislation would allow citizens such as yourself to file complaints with this office, and would allow the office to investigate such complaints. A summary of this legislation is attached, and if desired, contact your local representative to voice your support of such a measure.

Again, I am sorry that the Attorney General's Office cannot help you further with your request. I encourage you to keep an open dialogue with OSTRS (which you are doing per your most recent email dated 3/22) to hopefully recover the records needed. Good luck.

Robert Charles Moormann
Assistant Attorney General, Constitutional Offices
Ohio Attorney General Richard Cordray
(614) 728-2271
Facsimile: (866) 347-9217
Email: robert.moormann@ohioattorneygeneral.gov
30 E. Broad St., 16th Floor
Columbus, Ohio 43215
www.ag.state.oh.us

From Tom Curtis, March 20, 2009
Subject: 032009 Curtis, Re Moormann, Public Records Question

Hello Mr. Moormann,

Thank you for your very timely responses. I find it discomfiting to find that your office does not support the sunshine laws for individuals. Why should a citizen need to obtain an attorney to request information that should be freely made available to the stakeholders of that organization. This type of nonsense is part of the reason the case loads of the courts are always so clogged up. After all, the OSTRS employees work for us, we do not work for them, yet they seem to think otherwise. Do you agree?

All I continually hear from government offices I have written over the past 6 years concerning the OSTRS is that they are sorry they cannot help. What is governments' function, if it is not to serve the people? The people, as your are surely aware, are very feed-up with these kinds of responses. All we get is the run around. This is going to end and we may see a revolution in this country because of such.

Lawyers seem to always be able to sight laws that justify why they cannot do something about a situation. Why don't you start improving the laws on the books so that they better serve the people? This country is over 200 years old and yet I never read about lawyers improving and refining the laws to benefit all concerned. More and more laws continue to be established that simply clog the system worse.

My interest in the records I have requested is to find out when and why the OSTRS has so many employees, when in fact, the OPERS has twice as many stakeholders and less employees. Why does the STRS need so many employees to take care of half the stakeholders.

Mr. Nehf made a presentation to the board in February showing that the number of full-time employees has been reduced. He made absolutely no mention of part-time employees. That maybe the case, but the records showing the number of part-time employees may show that those full-time employees were simply replaced by part-time employees.

Further, I do not believe for one minute that the OSTRS does not maintain a record of part-time employees, so the reason given to me by Mr. Nehf for not supplying the information I requested does not seem rational. Does it to you? It would appear that he simply does not desire for me to see those numbers. He has offered no alternative number of years of that information.

If the Attorney Generals' office does not represent me, who does?

Respectfully, Thomas Curtis

From Robert Moormann, March 20, 2009
Subject: RE: Public Records Question

Mr. Curtis,

In accordance with the email sent yesterday, this email responds to your concerns about the withholding of records by OSTRS.

My understanding of the situation is that OSTRS has given you records of month-to-month counts for full-time employees. However, they have not provided a month-to-month count for part-time employees. OSTRS's justification for not producing those records is that the information requested is not maintained in a manner that is responsive to your request and that it would take specific programming to fulfill your request. The following guidance is specific to the situation I have just described, so if I have misstated any of the facts above, please let me know.

Beginning, there is a great discussion of a "proper request" in Ohio Sunshine Laws 2009 (the publication that I sent you yesterday) on pages 11-12. In essence, a requester of public records must identify the records he is seeking with reasonable clarity and must request a record that actually exists at the time of the request, not merely the information the requester seeks to obtain. Additionally, a public office is not required to created records in order to respond to a request for information. With these general principals being said, now we can turn to the analysis of the current situation. However, I must remind you again that the Attorney General's Office cannot give advice, cannot take complaints, and cannot force a pubic office to create or produce records.

In your current situation, the public office has stated that the information/records that you request for part time employees does not exist. If this is true, the law is fairly clear that public offices do not have to create records in order to satisfy a request. If this is the case, you do have other options to try to get the information about part-time employees that you seek. Negotiate with the public office (again) and try to refine your request to records that actually do exist about part-time employees. You can speak directly with the public office to try and identify records that may contain information about part-time employees, such as time-sheets or application materials.

If you attempt to refine your request and you still feel that the public office is improperly withholding records, you can choose to file an action in mandamus in an attempt to compel the office to release records responsive to your request. A detailed explanation of the filing of a mandamus suit is found on pages 49-52

Of Ohio Sunshine Laws 2009. Again, I have no idea, and cannot opine as such, as to whether OSTRS is acting improper in their response to your request.

I hope the preceding guidance will help you in your efforts to obtain the information/records that you seek. If you have any additional concerns, please do not hesitate to contact me at the information listed below.

Robert Charles Moormann