September 16, 2014

Elyria
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DeWine says he won’t offer opinion on Lundy’s records request

Attorney General Mike DeWine will keep his legal opinion to himself on whether Gov. John Kasich can deny a Freedom of Information request from State Rep. Matt Lundy, D-Elyria.

DeWine’s office wrote Lundy on Friday that legal opinions can only be sought by the Legislature, not individual legislators.

“Historically, the attorney general has followed this statutory process,” wrote attorney Pamela Vest Boratyn, DeWine’s general counsel.

Lundy in April sought emails and other documents related to how the Republican governor formulated his education budget, which includes substantial cuts that have rankled Democrats and educators.

In addition to emails between Kasich and education adviser Robert Sommers and the Fordham Foundation, a centrist educational think tank, the request included: one spreadsheet breaking down how budget cuts will affect each school district; estimated costs of possible lawsuits over the potential firings of older teachers; projected losses for future charter and voucher payments under new rules, as well as lists of charter schools in academic emergency or that have closed; and a bibliography of research indicating how proposed reforms will improve student achievement.

The request also sought any correspondence between the Kasich administration and Americans for Prosperity, the right-wing group founded by the oil billionaire Koch brothers, and the American Legislative Exchange Council, a right-wing group seeking to derail President Barack Obama’s health-care law at the state level.

FOI law requires the release of records by public agencies but does not require agencies to create records for the person or entity making the FOI request. Lundy on Tuesday conceded that parts of his request may have necessitated the creation of records, but that it did not justify the administration’s denial of the entire request as “overly broad.”

In an April 18 letter to Lundy, attorney Kimberly Kutschbach, Kasich’s assistant chief counsel, said the administration did not have 16 of the 17 items Lundy requested. Regarding the emails, Kutschbach cited a 2008 Ohio Supreme Court decision on email requests writing that Lundy had not identified with “reasonable clarity” what he sought.

Lundy feels the response left him in a catch-22 dilemma: he cannot have the emails because he cannot identify their content, and he cannot identify their content because he doesn’t have the emails.

“A statistical person can twist numbers to work the numbers for what they want,” Lundy said. “An attorney can twist the law to make the law work the way they want it to.”

Given that Kasich only took office in January, Lundy said there couldn’t be many emails that he and state Rep. Debbie Phillips, D-Athens, sought.

“We were seeking information about how the education budget was being shaped,” Lundy said. “What are you supposed to do? Are you supposed to state the specific time of the day the email was exchanged and what exact wording was used?”

Lundy said the request was not only about education policy, but the public’s right to know and the rejection is part of a pattern of secrecy by Kasich. However, Kasich spokesman Rob Nichols called it a “dingbat request” and accused Lundy of political grandstanding.

“He notified the press before he notified us. This is far more about politics than anything else,” Nichols said, adding that Lundy never responded to Kutschbach’s offer that he contact her to revise the request. “He’s just tragically unaware of how Ohio public information requests work, period, and I don’t think he cares.”

With a Republican-majority Legislature, Lundy said he could never get a resolution for a formal opinion passed, but hopes DeWine, a Republican, will issue an advisory opinion.

“I would think as the state’s highest ranking law enforcement (officer) he would want to make sure that the state’s public record laws are being followed,” Lundy said. “If there’s ever a time for guidance it is now.”

Contact Evan Goodenow at 329-7129 or egoodenow@chroniclet.com