By Dennis Hetzel, Executive Director
We get lots of calls from members with legal questions. Some I can answer quickly. Some take homework. Some take involvement by our extremely capable legal counsel, Lou Colombo, or his associate, Dave Marburger, who might be Ohio’s top expert on open records.
Probably half our questions recently are about the new public notice law, which isn’t surprising.
Following are some recent questions that came our way and our responses.
Q: A free weekly newspaper in my area is seeking public notice business. Can they do that?
A: Yes, but they may or may not qualify. State law now makes it possible for free-circulation papers to print notices if they meet a number of specific requirements, including three years of past publication, the ability to deliver to specific addresses, at least 25 percent editorial content, minimum page counts and proof of distribution in that community.
An interesting wrinkle is the three-year requirement. We believe that the intent of the law is that the publication has sufficiently met all the requirements for a period of three years before it can publish notices. However, the statute language is not crystal clear and could end up being litigated somewhere.
We advised one member to make sure the governmental body knows about our interpretation of the three-year standard, and to tell those officials that they could face action if they place notices in a publication that does not meet qualifications.
Your tactics are local decisions of course. Your relationship with specific government advertisers and your assessment of what’s at stake should dictate your approach.
Q: My local township told us they only have to print summarized public notices with Web links now. Can they do that?
A: No. Not yet. However, the state public notice website may be active before March. When that happens, the “Internet option” in the new law will be viable. Note that the law sets a principle of at least one, full newspaper notice in all cases. Any time there is a requirement for more than one print notice in most (but not all) cases, the second notice can be shortened, and there is no additional print requirement as long as they also post to the state website.
Our Public Notice FAQ offers much more detail on how this works and what notices don’t apply to this law, such as sheriff’s sales. It’s always available on our website to ONA members.
We are working closely with state officials on how this site will link to our site – PublicNoticesOhio.com. We also are planning major enhancements to the ONA site. Stay tuned.
Q: People have posted online comments to one of our stories speculating on the names of possible suspects in an arson fire in our city. Are we liable?
A: Probably not, but there is a big caveat. Most media lawyers strongly urge that you do not edit or change reader comments on the Web. In other words, you either delete a comment in its entirety or let it run as posted, even if you see errors or inaccuracies. Once you begin editing or changing a reader comment, you are now creating content — not just presenting it. You could lose your protection as a conduit, much as you can’t sue the phone company for a slanderous conversation that happens over their network. This is a major difference in laws between the Web and print, where you are just as liable for a comment in a letter to the editor as you would be for a reporter’s story. Note that you remain liable for the content that your staff generates.
Generally, when dealing with reader comments on your websites, you have a policy decision to make about what type of conversations you are going to allow, but you should be legally protected as long as you follow the “all or nothing” approach with comments. It also is a good idea to make sure your “terms of service” for site engagement – the thing that few people actually read – are readily accessible and give you wide latitude to tell someone they have violated your terms.
Of course, people who post libelous things can be sued even if you are insulated.
Q: Members of a local public board have been communicating with one another by email. They are excluding one of their fellow board members, talking about policy and deliberating when they should be doing that in a public meeting. Isn’t that an illegal meeting?
A: Probably not, even though they certainly should be criticized on your editorial page for violating the spirit of the law. Ohio’s open meetings law specifically defines a meeting as a prearranged gathering of the majority of members of a public body to discuss public business. Email communication is not a scheduled gathering – unless they were stupid enough to arrange this in advance, and you can show that — and obviously does not occur in real time. Email probably would be seen by a court as an impromptu discussion, which courts have allowed.
The good news is that public records law generally allows reporters to access this email, so you have an avenue to fully report what these board members are doing outside public view.
An aside: Ohio law, with only rare exceptions, does not allow teleconferencing for public meetings, but technology is likely to change that at some point, making this subject more complicated. I have been gathering information from other states and working on ideas for what standards for teleconferencing should be in Ohio.
Q: A parent complained that we shouldn’t have identified a teenage driver who received a traffic citation. Did we have the right to do that?
A: Yes, you were correct. Indeed, the Attorney General’s manual on Ohio Sunshine Laws specifically says this: “Although it is a common misconception, there is no Ohio law that categorically excludes all juvenile records from public records disclosure. While juvenile records maintained by the juvenile court typically are not available for public inspection and copying, juvenile records maintained by law enforcement agencies, in general, are treated no differently than adult records, including records identifying a juvenile suspect, victim, or witness.”
This is a situation in which a newspaper may have a policy and practices decision to make about identifying juveniles, but there is no legal barrier.
I am reminded of one of my all-time-favorite newspaper mottos: “If you don’t want it in the paper, don’t do it.”