03/02/2018

Legal hotline calls include weed, guns, courts, notices and more

By Dennis Hetzel, Executive Director

Pot advertising. Public notices. Gun ads. Police records. All that and more has hit our legal hotline lately.

I think this is one of the most significant services we offer. I’m the initial point of contact. Send email to dhetzel@ohionews.org, and I involve ONMA General Counsel Mike Farrell when I don’t know the answer. One call can provide the direction you need and even save you thousands of dollars in situations involving potential litigation.

Here are answers we gave to some recent questions:

 

Q: Can we accept advertising for medical marijuana in Ohio?

A: We have had several recent calls about this. Since we published a recent Bulletin article about this that outlined federal-level concerns, we learned that the State of Ohio also has issued regulations under the Ohio Administrative Code, which you can find at this link.

The state regulations appear to provide an opportunity for print advertising, because broadcast advertising, video and several forms of Web marketing are either banned or highly restricted. The state also has the right to review marketing materials. But, there’s a big catch: As you will see from the Bulletin article linked above, accepting print advertising could put your postal permit in jeopardy since marijuana is still banned for all uses at the federal level. If your newspaper doesn’t have or need a postal permit, maybe that’s not an issue.

Given all this uncertainty, we continue to advise members not to proceed without a thorough, internal review and discussions with counsel. We have submitted questions to the Ohio Dept. of Commerce about the state regulations and will keep you informed as we learn more.

 

Q: We were covering a court hearing in which a judge instructed our reporter not to report on a doctor’s testimony about someone’s mental condition because of HIPAA guidelines. Can a judge do this?

A: No. This is wrong on multiple levels. Testimony in open court is fair game, and there is a strong presumption that courts shall be open. HIPAA involves records, not court testimony. While there is certainly nothing wrong with someone, even a judge, asking that you not report on testimony, that’s your decision. Proper procedure would be for the judge to hold a hearing on the need for secrecy involving that testimony with the media and others having an opportunity to argue against closure. 

There also is a strong presumption of openness that attaches to court records and files, governed by the rules the Ohio Supreme Court makes for trial courts. In certain courts, such as juvenile courts, procedures are more restrictive.

 

Q: With all the discussion about guns and gun sales, what is allowed in terms of gun advertising in Ohio?

A: The answer from our FAQ on Ohio advertising issues still applies. Neither federal nor state statutes have explicit rules governing gun advertising. Thus, advertising for gun sales would be subject to the same requirements as other legal products and services.  However, as a matter of policy and practice, some newspapers either limit or do not accept advertising for guns. 

As a general proposition, the liability would be on the advertiser to ensure all the proper licenses, permits, etc. are in order. Some newspapers that have moved to tighten restrictions on gun advertising beyond what the law requires have faced backlashes and even subscription boycotts from pro-gun groups.

Side note: It is illegal in Ohio to sell the following items to any entity other than a law enforcement agency for authorized police work: brass knuckles, cestus (battle glove), billy, blackjack, sandbag, switchblade knife, spring blade knife, gravity knife or similar weapon. (ORC 2923.20)

By the way, the FAQ is available to you at all times in the “members only” area of www.ohionews.org.  We plan on doing an update this year.

 

Q: We are trying to get some local government records, but they say the records are covered by attorney-client privilege. How does that apply?

A: This is a frequent question lately. You have to do a situational analysis. If an attorney is performing in the direct role of an attorney for interacting with the records, the privilege may apply. However, just because someone is an attorney, the record does not become exempt because that person touched it. Otherwise, government could make anything secret just by making sure it went through the hands of counsel.

Remember, too, that even if the privilege applies to a document, it many not apply to the entire document. They are required to redact the exempt portions and provide the rest.

 

Q: We think a competing publication isn’t qualified to publish public (legal) notices. How can we determine if they’re eligible?

A: The ONMA can help you do an analysis. While we can’t take sides when the competition is between members, we are glad to provide details on the requirements of the law and how courts have interpreted them. Your best written references are our “Public Notices FAQ” in the “members only” area of our website, or go directly to Section 7.12 of the Ohio Revised Code to see the five requirements. Should you decide to challenge another publication’s eligibility, the law has specific procedures.

 

Q: Our city is a “home-rule” charter form of government. The City Council now wants to just post ordinances on the city website and reduce newspaper advertising. Can they do that?

A: Unfortunately, home-rule municipalities can make their own rules involving notices, records and meetings. However, if they have not specifically addressed this in their charter or an amendment to the charter, state laws apply.

You also should analyze whether these specific ads are required by their charter or state law. If not, they have been voluntarily placing paid notices. In those cases, you have the same relationship with the governmental body that you have with any other advertiser. Just make sure you treat them fairly as it is very important to have excellent relationships with notice advertisers.

Finally, let’s close with two simple-but-important public records questions.

 

Q: We have a controversy involving alleged sexual misconduct by a school district employee. Is his personnel file a public record?

A: Yes, though there may be limited redactions for things such as Social Security numbers. The Ohio Attorney General’s sunshine law manual is explicit on this subject. See Pages 85 and 86. (And it’s always a good idea to have a printout of the manual in your newsroom.)

 

Q: The local police chief keeps handing us redacted initial incident reports. Can they do this? Their report forms also seem very limited. Is there a requirement on what has to be on the report?

A: No to both questions. Case law is substantial that initial police incident reports are public records and not subject to exemption as part of an active investigation. The same is true for 911 calls. That’s because the investigation doesn’t start until after the initial incident, and the report is a documentation of that. Unfortunately, we’re not aware of any statutory requirements on what information must be included. Perhaps there’s a way to convince the chief that best practices aren’t being followed.