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04/17/2015

ONA answers your legal hotline questions – Part 2

By Dennis Hetzel, Executive Director

Dennis Hetzel Executive DirectorOne of the Ohio Newspaper Association’s most important services is answering member questions to our legal hotline, and we get lots of them, particularly related to sunshine laws and advertising issues.

In the last Bulletin, we provided Part 1 of this column, describing how we answered a number of recent member questions. This is Part 2. Some of our members made some serious mistakes that everyone can learn from. In other cases, reporters are wrestling with important issues about government secrecy. Unfortunately, the answers aren’t always crystal clear or the ones we want to hear.

Not all this advice comes from me. In many cases, there is no way I could help members without the great support of Lou Colombo, ONA’s general counsel, and his colleagues at the Baker Hostetler law firm in Cleveland.

When it comes to potential violations of open records and open meetings law, we always look for solutions that don’t involve the time and expense of litigation, but sometimes there is no choice. When your call involves matters such as fair housing and libel complaints against the newspaper, it’s always a good idea to talk to an attorney before acting.

An important caveat: Many of these situations and our responses are far more complicated than I can convey in a paragraph, and our opinions are just that: opinions. Feel free to contact me if you’d like more detail on any of these items.

Without further ado, here are recent answers to your questions.

CHARGING FOR ACCIDENT REPORTS: Can the Highway Patrol charge our newspaper $4 for copies of accident reports? ONA Response: Yes, they can under a specific provision of Ohio law. However, you have a right to view them at the patrol station without any charge.

NO LIBEL INSURANCE: We received a letter from a local attorney who threatened to sue us over our coverage of his involvement in a dispute over the closure of a local agency. We have no libel insurance. What should we do? ONA RESPONSE: First of all, libel insurance is a necessity in this day and age. You should correct this as soon as you can. In the interim, the combination of your lack of insurance and the details of your situation suggest that you work with this attorney to run a clarification or follow-up story if possible to calm things down. (Postscript: The paper was able to work this out with the attorney. The ONA has member discounts on insurance available through Walterry Insurance. Contact me for details.)

VOTING TO HELP YOUR SON: Is it a conflict of interest under Ohio ethics law for an elected official to vote for a zoning change that directly benefits her son, who owns the two parcels? ONA RESPONSE: The ethics law seems to make it clear that this elected official should not have voted on this. Officials shouldn’t discuss, deliberate, vote or otherwise participate in decisions involving direct family members.

LETTER CALLS OFFICIAL A ‘LIAR’: Is it a protected opinion or potentially libelous for a letter writer to call a local judge a “liar?” ONA Response: That’s a “red flag” word. At a minimum, make sure the writer states unquestionable facts that lead to his conclusion, and have the writer carefully state it is just his opinion if using the “L” word. Since the judge very well may sue anyway, ask yourself if it is worth it or perhaps encourage a different approach. Remember that a newspaper can be held accountable for statements made in letters as well as its own stories and editorials. (Media law experts say you cannot be found liable for reader comments on Web stories as long as you are not editing or otherwise changing the comments.)

LEGAL OPINION A PUBLIC RECORD: Can our city withhold a legal opinion drafted by the city law director regarding the eligibility of a police officer to take a promotional exam? ONA RESPONSE: We believe this is a public record and can find no exception that would allow the city to withhold it. If there is material in the opinion that should be confidential, they still should release the document, redacting the confidential material.

ADVOCACY ADVERTISING: Does an advocacy ad taken out by a neighborhood group opposed to a zoning change in a residential area run afoul of fair housing laws? ONA Response: No, it’s OK to publish the ad. Fair housing law applies to “for rent” and “for sale” advertising.

TAX RETURN RECORDS: Are federal income tax records such as W2 forms public records for Ohio government officials? ONA RESPONSE: No, they are not. Federal law keeps these confidential, and these would be exempt under the catch-all exemption in Ohio’s open records law that blocks access to records that are made secret by other state or federal requirements. However, there may be other documents that are public records such as payroll reports that show some of the information being sought.

IDENTIFYING A JUVENILE OFFENDER: Police took a 17-year-old girl into custody during a raid on a heroin distribution ring. Her name was stated in open court, but a judge ordered the newspaper to not publish the name and barred cameras in the court. Can the judge do this? ONA Response: Proceedings involving juveniles are not automatically closed in Ohio, but they aren’t presumptively open either, so there is more latitude for a judge to restrict the media. However, this judge didn’t seem to follow appropriate procedures in ordering restrictions. If the paper felt that publishing the name was important, it would be an interesting case to pursue given the nearly-adult age of the girl, the serious charges and public interest in the matter.

 

If you need additional information, you can find our downloadable guide to “Common Issues in Ohio Advertising” in the “members only” area of the ONA website. The Ohio Coalition for Open Government website contains resources on journalist access issues, including links to the Ohio attorney general’s invaluable guide to Ohio’s records and meeting laws and training videos.

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