Ohio's latest open-records tiff concerns
executive privilege: editorial
By The Plain Dealer Editorial Board The Plain Dealer
Ohio's public records maxim was first enunciated in 1901 by a Cincinnati judge: "Public records are the people's records. The officials in whose custody they happen to be are mere trustees for the people, any one of whom may inspect such records at any time."
But Judge Rufus B. Smith also said that may not "endanger the safety of the record, or unreasonably interfere with the . . . duties of the officer having custody of [it]."
Smith's opinion has spawned 111 years of arguments.
The latest is a skirmish between the Ohio Democratic Party and Republican Gov. John Kasich. Democrats say Kasich is releasing less information -- mainly about his schedule -- than Ohio's open-records law requires.
In part, Democrats want to learn, to recall the Watergate-era bromide, what Kasich knew and when he knew it, about a probe of then-Superintendent of Public Instruction Stan W. Heffner's conflicts of interest. (The Republican-run Franklin County prosecuting attorney's office and the Columbus city attorney's office, run by a Democrat, both decided not to charge Heffner.)
Kasich aides gave the Democrats some data, but less than the Democrats say the law requires. The Plain Dealer's Aaron Marshall reported that of 127 events on Kasich's schedule from June 1 to July 8 of this year, 80 were blacked out.
The Kasich administration says the Open Records Act doesn't encompass some of the information Democrats seek -- and that a 2002 Ohio anti-terrorism law exempts disclosure of "security records" pertaining to public officials' safety.
What really irks Democrats is that one of seven legal defenses Kasich's lawyers offer is executive privilege. 'Ohio didn't recognize executive privilege until 2006, when the state Supreme Court, in a wrongheaded 5-2 decision, played legislature and jammed the concept into Ohio's law books.
Executive privilege may ring a bell. Republican President Richard M. Nixon claimed it during Watergate. So, last spring, did Democratic President Barack Obama -- trying to block release of documents pertaining to Operation Fast and Furious, the disastrous federal gun-walking sting.
Ohio, given its open-records heritage, does need a robust debate on executive privilege. It's too bad the Democrats didn't start one when they ran Ohio's House and Democrat Ted Strickland was governor. For now, the test of Kasich's good will is his compliance with both the letter and the spirit of the open-records law. On that front, Ohioans must keep watching -- closely.