V. Frequently Asked Questions

(1)      May County Commissioners Have Access to Client Case Files and Other Confidential Information at the CDJFS?

While the CDJFS and its director are under the control and direction of Board of County Commissioners (Board), neither the CDJFS nor its director is free to follow directives of the Board of County Commissioners if such directives are in conflict with ODJFS rules or applicable law. Furthermore, the Board of County Commissioners is not involved in the day-to-day operation of the CDJFS which is vested in the CDJFS director (1983 Op. Atty. Gen. No. 83-023). The director of the CDJFS and the CDJFS employees may share all public assistance applicant, recipient, and former recipient records so long as access to these records is for the purpose of administration of the public assistance programs. Since the Board, pursuant to Ohio Revised Code Section 329.01, is responsible for appointing the CDJFS director but delegates authority for running the CDJFS to the director, it is the opinion of this office that the Board of County Commissioners may only access public assistance applicant, recipient or former recipient information if release is authorized pursuant to RC §5101.26, RC §5101.27, RC §5101.28 or RC §5101.30.

(2)      May The Subjects of Child Abuse And Neglect Investigatory Records, Maintained by PCSAs Under RC §2151.421 have Access to these Records Under RC §1347.08?

An Ohio Supreme Court Decision (State, ex rel. Renfro v Cuyahoga County Dept. of Human Services, 54 Ohio St. 3d 25 (1990)) determined that records of an investigation of abuse and neglect held by a PCSA which was completed pursuant to RC §2151.421 was not accessible under RC §149.43, RC §1347.08, or RC §5153.17 if the person or persons seeking access to the information do not need the information in order to support a right to a fair trial or release of the record was not authorized by OAC rules 5101:2-33-21 or 5101:2-33-22.

The court stated that RC §2151.421(I) (now H) made records of investigations and reports confidential and precluded unauthorized dissemination of the records. The court concluded that this section "clearly" removed child abuse and neglect investigatory reports compiled under RC §2151.421 from the mandatory disclosure provision of RC §149.43 (exception concerning state laws which preclude release of information) and the PCSA is obligated to follow OAC rule 5101:2-33-21 in determining when release of this information is authorized.

The court looked at RC Chapter 1347 and determined that this chapter does not apply to investigations and reports compiled by PCSAs pursuant to RC §2151.421. This conclusion was reached due to their finding that these personal information system records were exempt under RC §1347.04(A)(1)(e) which exempts personal information systems that "...are comprised of investigatory material compiled for law enforcement purposes by agencies..." but are not agencies whose principal function relates to the enforcement of criminal laws, criminal courts, prosecutors, correction, probation, parole or pardon authority. This portion of the decision specifically put the court in accord with a 1989 Ohio Atty. Gen. Op. No. 89-084.

The court then looked at RC §5153.17 and again concluded that this section requires the PCSA to keep records confidential and reiterates that, absent involvement of a person's right to a fair trial, RC §5153.17 allows PCSAs to refuse release of the information.

(3)      Are ODJFS Employee Personnel Files Held by ODJFS Subject to Inspection by the General Public Upon Request?

In State ex rel. Fant v. Enright (1993) the court looked at RC §149.43 and acknowledged that all public records must be released upon request and that personnel files do not fit within any of the exceptions contained in the statute. However, the court looked at the definition of record contained in RC §149.011(G) which states that a "record" is something that is "created or received by or coming under the jurisdiction of any public office...which serves to document the organization, functions, policies, decisions, procedures, operations or other activities of the office." The court then stated; "(T)o the extent that any item contained in a personnel file is not a "record" i.e., does not serve to document the organization, etc., of the public office, it is not a public record and need not be disclosed." The court then goes on to say; "To the extent that an item is not a public record and is "personal information" as defined in RC §1347.01(E), a public office "would be under an affirmative duty, pursuant to RC §1347.05(G) to prevent disclosure." The court then ordered that the requestor in this case be allowed to examine the personnel file in question except for any items of "personal information" which were to be redacted, "..but only if those items are not "public records." This decision has muddied the waters on the personnel files issue. It appears that records of personnel actions and specific forms would be considered records and public records under the court's analysis as they serve to document the organization, functions, policies, decisions, procedures, operations, or other activities of ODJFS. However, the decision requires that other information contained in the personnel file be analyzed separately to determine if the information meets the definition or is a protected piece of personal information which cannot be disseminated. Another Ohio Supreme Court case (State ex rel. Dispatch Printing Co. v. Wells (1985), 18 Ohio St. 3d 382) states that the court will be the final arbiter as to whether the personnel information must be released under Section 149.43 of the Revised Code. Another case from the Ohio Supreme Court speaks to the issue of Social Security numbers contained in personnel files. This case (State ex. rel. Beacon Journal v. City of Akron (1994)) finds that RC §149.43 does not mandate that governmental agencies disclose employee social security numbers. The court found that disclosure of the social security numbers would violate the federal constitutional right of privacy (federal law which precludes release). The court used a balancing test of individual's interest in avoiding disclosure against the government's interest in disclosing the information and found that the individual's interest prevailed in connection with social security numbers. This case may only apply to Social Security numbers contained in personnel files (so far) or may be narrowly construed in favor of releasing other types of information from personnel records. Note: ORC 1347.12 helped codify the confidentiality of not only social security numbers, but driver's license numbers and bank account information, on the basis that releasing any of this information, along with an individual's name, could cause a material risk of identity theft.

The court, in a subsequent case (Thomas v. Ohio State University see next paragraph) ruled that the government's interest in disclosure prevailed when the balancing test was argued in relation to certain personal information of Ohio State University researchers when requested by animal rights activists. The November 1994 decision Thomas v. Ohio State University, 71 Ohio St. 3d. 245 may have provided a little more guidance regarding what information in personnel files are not records under RC §149.011(G). This case concerned the efforts of an animal rights organization to secure information on animal researchers from Ohio State University. The plaintiffs requested addresses as well as other information from the University. The court found that much of what was requested was public record. However, the court ruled that release of the researcher's business addresses met the plaintiff's request. Although this court did not specifically exclude home addresses as public records in personnel files, the court in State ex rel. Dispatch Printing Co. v. Johnson, 106 Ohio St. 3d 160 (2005), held that state employee home addresses in personnel files are not records under RC §149.011(G). This case helps answer some of the questions regarding what portions of a state and local government employee's file should be maintained as confidential, and what portions can be disclosed.

(4)      Does the Death of a Person End the Confidentiality of Information Held by ODJFS, CDJFS, or PCSA?

The Ohio Attorney General, in a 1990 opinion (OAG 90-007) found that "(W)here state law prohibits the release of information in a record kept by ODJFS, a county department of Job and Family Services or a children services board, such prohibition remains effective despite the death of the subject of the record. HIPAA regulations also state that protected health information subject to HIPAA continues to be subject to HIPAA privacy regulations after a person is deceased. The HIPAA regulations set out under what circumstances this information may be shared.

(5)      Must Public Assistance Records Be Released to Law Enforcement Agencies When Requested?

The answer to this question is dependent upon which public assistance program's records are being requested and for what reason.

RC § 5101.26 defines law enforcement agency to include the State Highway Patrol, an agency that employs peace officers as defined in RC §109.71, the Adult Parole Authority, a County Department of Probation, a Prosecuting Attorney, the Attorney General, similar agencies, and Postal Inspectors including the peace officers and other law enforcement officers employed by the agency.

RC § 5101.27 allows law enforcement agencies to access public assistance applicant, recipient or former recipient information from any public assistance program if the law enforcement agency is accessing the information for the purpose of any investigation, prosecution, or criminal or civil proceeding directly related to the administration of a public assistance program.

RC § 5101.28 allows access to Ohio Works First cash assistance (OWF), and Prevention, Retention & Contingency (PRC) and non-medical disability assistance benefits (DA), information of an applicant, recipient or former recipient for the purpose of investigation, prosecutions, and criminal or civil proceedings that are within the scope of the law enforcement agencies' duties. However, neither ODJFS nor a CDJFS releasing information under this section of the Revised Code can be held liable in a civil action for any injuries, death or loss to a person or property that allegedly arises from the release of the information.

Law enforcement agencies may not access applicant, recipient or former recipient Medicaid, Children Health Insurance program, or refugee medical program information unless it is received for the purpose of any investigation directly related to that program.

ORC 5101.28 does NOT apply to Food Assistance information. However, under 7 USC 2020(e)(8) and 7 CFR 272.1(c) law enforcement agencies may access the address, social security number, and photograph (if available) of a Food Assistance recipient if the law enforcement agency furnishes the recipient's name and notifies the CDJFS that the recipient is fleeing to avoid prosecution or custody or confinement after conviction for a felony (high misdemeanor in New Jersey) or in violation of a condition of probation or parole imposed under state or federal law so long as it is within the official duty of the law enforcement agency to apprehend the recipient.

(6)      Does The Format of a Record Have Any Effect Upon Whether It Is a Public Record?

For the purposes of public record law (RC §149.43)  RC §149.011(G) defines a record as

..any document, devise, or item regardless of physical form or characteristic, created or received by or coming under the jurisdiction of any public office of the state or its political subdivisions which serves to document the organization, functions, policies, decisions, procedures, operations, or other activities of the office.

This is an extremely broad definition and there has been little litigation clarifying whether certain types of records held by state agencies or political subdivisions are records under RC §149.011. ODJFS' position is that all memoranda, letters, and other working papers that serve to document the functions of ODJFS are records for the purpose of public record law. Correspondence with the other individuals at ODJFS or outside of ODJFS when a person is acting in his/her capacity as an ODJFS employee should be considered records. It does not matter whether the memoranda or correspondence is handwritten, typed (electronically or on paper) or printed. As long as it documents the organization, functions, policies, decisions, procedures, operations or other activities of the office, it is a record for the purpose of public records law.

Previously, it was unclear whether draft materials and personal notes were considered public record. There was no case law on the subject and treatment of the materials were dependent upon each agency's interpretation of the definition of records (RC §149.011). However, a 1995 case (State ex. rel. Dist. 1199 v. Gulyassy (1995), 107 Ohio App. 3d. 729) from the Franklin County Court of Appeals has shed some light on the subject. This is not an Ohio Supreme Court case but is significant enough authority to be the current prevailing and controlling view. The plaintiffs were several unions that have collective bargaining agreements with the state. The unions requested all drafts of proposed changes to RC Chapter 4117 which had either been prepared by the Office of Collective Bargaining in the Department of Administrative Services (OCB), or had been prepared for OCB by other state agencies, by other entities or by other individuals. The records requested were not related to issues being collectively bargained but the records requested included drafts of documents which were never implemented or put into final form for distribution. The court found that the records were "records" under RC §149.011 and were governed for release by RC §149.43. The court rejected an argument that the drafts should be exempt due to a "deliberative privilege" since the legislature had not acknowledged "deliberative privilege" as an exemption in state law. It should be noted that it may be permissible to destroy drafts pursuant to a properly promulgated agency retention schedule, in which case the draft would not be available when requested through a public records request.

This case is also important in that it set up a distinction as to whether personal notes are records for the purpose of RC §149.43. The court stated that personal notes are not considered records for RC §149.43 purposes unless the notes are shared with other individuals in the agency or outside the agency for the purpose of affecting policy.

Messages sent via email may be "records" under the public records law depending on what information is being sent. If the information sent via email documents the organization, functions, policies, decisions, procedures, operations, or other activities of ODJFS, it is a "record" under RC §149.011(G), and might have to be released in response to a "records" request. The case of State ex.rel. v Sheriff's Department, 82 Ohio St. 3d 37 (May 20, 1998), ruled that racist e-mail messages sent by employees to another employee did not meet the definition of "record" (as they did not document the organization, functions, policies, decisions, procedures, or other activities of the public agency), and were therefore not required to be released in response to a public records request.

(7)      Must Public Records be Mailed to a Requestor Upon the Requestor's Request?

RC §149.43(B)(3) requires that public agencies provide public records to a requestor by mail, if so requested. The public agency may require payment of the cost of postage and other supplies used in the mailing prior to mailing the records. A public agency may adopt a policy for providing public records through the mail. The policy may limit the number of records mailed out to ten per month unless the requestor certifies to the public office in writing that the requestor does not intend to use or forward the requested records, or the information contained in the requested records for commercial purposes. Commercial purposes does not include reporting or gathering news, reporting or gathering information to assist citizen oversight or understanding of the operation or activities of government, or nonprofit educational research.

If the requestor is incarcerated pursuant to a criminal conviction or a juvenile adjudication, records concerning a criminal investigation or prosecution or concerning what would be a criminal investigation or prosecution if the subject was an adult, need not be released unless the request to inspect or to obtain a copy of the record is for the purpose of acquiring information that is subject to release as a public record under RC §149.43 and the judge who imposed the sentence or the judge's successor in office finds that the information sought in the public record is necessary to support what appears to be a justiciable claim of the person.