December 18, 2014

Elyria
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Open record laws debated in courts

CLEVELAND – Debate continues over the Ohio Supreme Court`s plan to adopt new rules governing access to court records, with at least one critic worried that the proposed rules fly in the face of constitutional law.

Until Dec. 19, the high court is accepting public comments and criticism to help refine the rules regarding access to court records until they are be formally adopted, a process that may begin as early as next spring, said Chief Justice Thomas Moyer.

The proposed rules will be the first in the state`s history, Moyer said. The Supreme Court has constitutional authority over court records, but historically, the state has turned to the state`s public-records laws, passed by the legislature.

The rules, based on the presumption that the records should be available unless someone moves to have them sealed, will help bolster the public`s right to access court documents, Moyer said. Those who wish to close a record must then prove why the public should not be able to access it, he said.

Each of the state`s judges will use the rules on a case-by-case basis.

“When a court says there is a presumption ‘that court records are open to inspection,` that means the person who wants to close the record has the burden of proving or showing why the record should be closed,” Moyer said.

Cleveland lawyer David Marburger, a public records expert, said the new rules are “very good” in the respect that they give judges the ability to make case-by-case determinations. However, some of the proposed language is troubling because it reverses the presumption of openness, Marburger said.

For instance, a judge may rule that a record is not public if there is another way for a person to get the information, Marburger said.

“The proposed rule would instead have the practical effect of telling the public: ‘If you can find out the information some other way, then you have no right to see this record,` ” he said.

One provision calls for the partial omission of personal information that could be lifted by identity thieves.

However, some critics who have written to the court during the public comment phase believe that the provision will allow people to conceal their information with no true concern for identity theft.

“There has been a recent rise of applicants submitting inaccurate information in an effort to cover their past,” said Vince Catalogna, a Columbus private investigator who screens police and fire job applicants.

“Based on my 30-plus years of investigative experience, it appears the issue of identity theft is more the manipulation of one`s own information than that by an outsider.”