Senate

Josh Mandel Refusing to Comply with Ohio Open Records Law

WASHINGTON – American Bridge 21st Century is calling on Ohio Treasurer and Senate candidate Josh Mandel to comply with Ohio open records law after our requests have gone ignored for months. American Bridge has submitted two simple requests nine and ten weeks ago for which we have received no information or even an acknowledgment. We contend that Mandel is now in violation of the law for failing to respond in a reasonable amount of time.

Mandel’s office has been in the news lately for his failure to comply with these types of requests despite claiming in the press to support transparency and compliance with the federal Freedom of Information Act.

“This is yet another example of Josh Mandel making verifiably false statements to the press while failing to comply with the simplest of duties,” said Matt Thornton, spokesman for American Bridge 21st Century. “Mandel’s entire justification for running for Senate is his supposed expert management of the Treasurer’s office — a job he is obviously neglecting.”

On June 19, 2012 a records request was submitted asking for resumes and cover letters for various employees of the Treasurer’s office. This request is particularly easy to fulfill since Mandel’s office has previously provided the same information to the Ohio Democratic Party. In our request letter, we specifically stated that Mandel’s office could provide us with same information. This would have been as simple as making a photocopy and throwing it in the mail.

On June 26, 2012, we submitted a second request for basic employment information for Mandel’s employees. This again is a simple request that should require very little effort to fulfill.

Our attorney submitted the following letter to Mandel’s office:

August 22, 2012
Seth Metcalf
General Counsel and Director of Legal & Financial Affairs
State Treasurer of Ohio
30 E. Broad Street
9th Floor
Columbus, Ohio 43215

Re:      American Bridge 21st Century Public Records Request

Dear Mr. Metcalf:

Our firm represents American Bridge 21st Century, a nonprofit organization.  We reiterate American Bridge 21st Century’s requests for copies of the records listed in the attached letters, in the manner previously described, pursuant to Ohio Revised Code § 149.43.  We certify that the requested records, and the information contained in them, will not be used for commercial purposes.

On June 19, 2012, American Bridge sent a letter requesting job applications for specific individuals from the State Treasurer of Ohio.  You never responded to this request.  On June 26, 2012, American Bridge sent another letter requesting specific personnel records from the State Treasurer of Ohio.  You also never responded to this request.  It has been nearly ten weeks since you received the first letter and nine weeks since you received the second letter.

As you know, the State Treasurer of Ohio must provide copies of public records as requested within a reasonable time.  Ohio Rev. Code § 149.43(B)(1).  Government bodies refusing to release records have the burden of proof that they are not subject to disclosure.  State ex rel. Nat’l Broadcasting Co. v. City of Cleveland, 526 N.E.2d 786, 790 (Ohio 1988).  And the law resolves doubts in favor of disclosure.  State ex rel. Cincinnati Post v. Schweikert, 527 N.E.2d 1230, 1232 (Ohio 1988).

What is a reasonable time period under the law can vary based on the circumstances.  In certain circumstances, even six days is too long of a delay to respond to a request.  See State ex rel. Consumer News Servs., Inc. v. Worthington City Board of Edu., 97 N.E.2d 82 (Ohio 2002) (holding that six days was an unreasonable delay in providing requested public records).  In these circumstances, it is necessary to procure these records as soon as possible given the proximity to the upcoming election.

Moreover, the State Treasurer is required to cooperate with a requester; your office has failed to comply with this legal mandate.  Ohio Rev. Code § 149.43(B); see also State ex rel. Morgan v. Strickland, 906 N.E.3d 600, 603 (Ohio 2009) (“R.C. 149.43 contemplates that the requester and the public-records custodian cooperate in fulfilling a request.”).  In the ten weeks that have elapsed, American Bridge has not received any response from you and your office has released no records in response to our request.  This complete failure to act does not meet the spirit or the letter of your obligations under Ohio’s Public Records Law.

We expect to hear from you no later than 14 days after your receipt of this letter; we also expect our client to begin to receive records responsive to its request by that time, and for your office to respond to this request in full within a reasonable time thereafter.  If your office fails to meet its obligations under § 149.43, we will consider all of our legal options.

We look forward to working with your office to obtain copies of the public records requested.

Very truly yours,

Ezra W. Reese
Emily R. Eisenberg
Counsel to American Bridge 21st Century