"There is nothing in the current state public records law that prohibits sensitive or confidential business information from being just that, confidential."
Matt Lundy on Monday, February 7th, 2011 in a news release
State Rep. Matt Lundy says state records laws already shield business records
New Gov. John Kasich has made it clear his top priority while in office is to bring jobs to Ohio and turn the economy around.
JobsOhio, a publicly funded, private nonprofit corporation, is Kasich’s big idea to attract businesses here and create jobs. The nonprofit corporation will act as a privatized version of the Department of Development’s economic development efforts. Yet the transition of this public agency, which Kasich has described as sluggish and ineffective, to the private sector has raised concerns about transparency and accountability.
Kasich, a Republican, wants JobsOhio to be exempt from Ohio’s public records and open meetings laws. The corporation would be audited annually to show the public its spending. But Democrats have loudly criticized the exemptions, saying they would keep the corporation’s operations under wraps and out of the public view, inviting scandal and a misuse of taxpayers’ dollars. Kasich and other Republicans say the exemptions are needed to help JobsOhio "move at the speed of business." Public disclosure could disrupt business negotiations, they argue.
State Rep. Matt Lundy, a Democrat from Elyria, is not convinced JobsOhio needs to be shielded from public records laws, and he has introduced legislation to subject the corporation to those rules.
"There is nothing in the current state public records law that prohibits sensitive or confidential business information from being just that, confidential," Lundy said in a Feb. 7 news release announcing his legislation, which he called the Taxpayer’s Right to Know Act.
Republicans control the Ohio House of Representatives, so Lundy’s bill is unlikely to get much attention. But since his effort highlights ongoing concerns about JobsOhio, PolitiFact Ohio decided to check out Lundy’s claim and examine how Ohio’s public records laws treat the state’s interactions with outside businesses.
Ohio’s public records law, section 149.43 of Ohio Revised Code, establishes the public availability of records kept by public offices, whether its a city hall or local school district or the governor. The law also includes numerous exceptions, which range from a police officer’s home address to adoption records.
These exceptions also apply to certain business records.
Sensitive business records often fall within the "trade secrets" exception to Ohio’s public records law, said David Marburger, an attorney for Baker Hostetler in Cleveland and counsel for the Ohio Coalition for Open Government. Marburger, who often represents The Plain Dealer on issues of public access to government, called the trade secrets exception "extremely broad."
Ohio Revised Code section 1333.61 defines a trade secret as any information, including business information, financial information, technical information, formulas, names addresses and telephone numbers, of actual or potential economic value.
Marburger said the trade secret exception is a nearly impenetrable shield when a government entity and a business share sensitive or confidential information.
Kent State University School of Journalism and Mass Communication professor Tim Smith agreed. He also cited the trade secrets exception when asked about Lundy’s statement. "From my knowledge about the open records law, Lundy’s statement is accurate," said Smith, a former managing editor for the Akron Beacon Journal.
Kasich’s administration and Republicans in the House of Representatives, which already has approved the JobsOhio plan, have offered a cross-section of scenarios in which public disclosure would impede JobsOhio’s mission. (The Republican-controlled Ohio Senate is still reviewing the plan.) For example, if communication between JobsOhio and a sought-after company was public record, another states could use that information to trump Ohio’s offer.
PolitiFact Ohio is not rating whether JobsOhio should be exempted from public records laws. Regardless of the advantages or disadvantages, Lundy’s statement that Ohio’s public records law includes exceptions that protect sensitive and confidential business information is correct.
On the Truth-O-Meter it earns a rating of True.
Published: Tuesday, February 15th, 2011 at 6:00 a.m.
News release announcing Rep. Matt Lundy’s Taxpayer’s Right to Know Act
Interview with State Rep. Matt Lundy, Feb. 11, 2011.
Interview with David Marburger, Feb. 11, 2011.
Interview with Tim Smith, Feb. 10, 2011.
Ohio Revised Code
Ohio Attorney General’s 2010 Sunshine Laws Manual
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