01/17/2019

Hotline gets questions on marijuana, court records and more

By Dennis Hetzel, Executive Director

Monica Nieporte and I have started working together as the ONMA prepares for our executive director transition at the end of March when I depart.  One of the duties I will miss the most is being first point of contact for legal hotline calls.  You know you’ve made a difference when you can provide rapid response for members facing problems that run the gamut from major libel suits to thorny questions involving open records or advertising regulations.

Here are some of the answers we’ve provided to member questions in recent months:

Latest marijuana developments: We’re trying to reach out to potential advertisers related to medical marijuana in Ohio. Are there any new developments we should be aware of?

Yes.  It appears the Justice Dept. is going to return the policy of not interfering with marijuana laws in states that have legalized usage. Attorney General Jeff Sessions rescinded this Obama-era guidance but William Barr, President Trump’s nominee to replace Sessions, told Congress he won’t target law-abiding marijuana businesses. This also reduces the already-slim chance that a local postmaster could successfully challenge the postal permit of a newspaper that printed an ad for medical marijuana.

We have updated this portion of our guide to Ohio advertising issues to also note that physicians who have been certified to recommend medical marijuana do not face marketing restrictions any different than the standards all physicians face. And we have included our recent guidance that it remains illegal in Ohio to sell so-called CBD oils that contain cannabis or hemp. When it is legal, only licensed marijuana dispensaries will be allowed to sell CBD oils in Ohio.

The guide is available for download at any time for the “members only” area of www.ohionews.org.

Court records: We’re being denied a request to see a record. During a court hearing involving a nepotism charge against our county auditor, the prosecutor held a document up that apparently was never entered into the court record and the prosecutor is claiming attorney-client privilege as well. Isn’t that still a public record?

A: We feel you’ll have a hard time getting this record. First, the attorney-client privilege may apply to this document. Secondly, the Ohio Supreme Court has said case records are not covered by the open records law but by Rule 45 of the Ohio Court Rules of Superintendence.  While court records are generally open, the court can restrict or delay access to such records, and it appears that this document never was made part of the official proceedings.

Health Dept. documents: Ohio health departments have to be accredited. The non-profit agency that does the accrediting says they can’t share any documents related to the process. Would the documents the health department submitted to the accrediting agency be public records?

A: Yes. You should make requests for documents to the health department. These documents almost certainly would be public, open records, though specific portions might need to be redacted or excluded. By the way, it is not enforceable for a governmental body to enter into a contract that would cause it to break the open records law. A contract can’t supersede statutory requirements.

No drinking or smoking: We have a request to run a “for rent” ad that states a prospective tenant cannot smoke, drink or do drugs. Is that legal?

A: It is legal to require a smoke-free apartment. Alcohol use can be prohibited in common areas of course. Some landlords are advised that they cannot prohibit legal drinking within a rental property.  If the landlord is insistent, we recommend that the ad state something like “no illegal use of alcohol or drugs permitted.” Our advertising issues guide has a detailed section on housing advertising.

Dealing with whistleblowers: We’re seeking records about a whistleblower case related to problems in our police department. The city won’t release records, including a refusal to release the whistleblower’s records request. We want to know what he was seeking. The police cite the confidential police records exemption saying it would reveal the identity of an uncharged suspect. Shouldn’t a request for public records itself be a public record?

A: It’s hard to imagine a situation in which a records request wouldn’t be public. If it isn’t public now, it should become public once the case is completed. Worst case, the agency should release the request and redact the portions that they think would be exempt.

Juvenile photos: The police want us to publish a photo from a home security camera of a possible suspect in an unsolved crime who likely is a juvenile. Is this a problem:

A: It shouldn’t be a problem if you are careful in your wording, particularly since the photo appears to capture a crime being committed or about to be committed. Clearly state that the photo is being published at the request of law enforcement. Don’t word it to create a presumption of guilt. Make sure you follow up with the police on the story.  Also, Ohio law does not provide automatic confidentiality for juveniles.

However, based on a recent appellate court decision, we can no longer say you would be at zero risk.  Members of a Columbus family sued WBNS/Channel 10 after the station posted a still photo at the request of the police. It turned out the “subjects of interest” had nothing to do with the crime, and they sued the station for defamation even though they weren’t named and the station promptly removed the photos from the website.

The ONMA has joined with the Ohio Association of Broadcasters and others to appeal this ruling to the Ohio Supreme Court. The office of then-Attorney General Mike DeWine has sided with the media groups, noting that it is essential for the media to be able to assist police.