columbus, construction contractors who do business in ohio. 2. respondent odot is a "public ......

IN THE SUPREME COURT OF OHIO

STATE OF OHIO EX REL.OHIO CONCRETE CONSTRUCTIONASSOCIATION2600 Corporate Exchange Drive, Suite 165Columbus, OH 43231,

Case No. ® 9-02°' 7

Relator,

V.

OHIO DEPARTMENT OFTRANSPORTATION,1980 West Broad StreetColumbus, OH 43223,

Respondent.

VERIFIED COMPLAINT FOR WRIT OF MANDAMUS

Marion H. Little, Jr. (0042679)Christopher J. Hogan (0079829)ZEIGER, TIGGES & LITTLE LLP3500 Huntington Center41 South High StreetColumbus, Ohio 43215(614) 365-9900(614) [email protected]

DD€ED, 05 20('^31

Attorneys for Relator

C0K OF COURTSUPREME COURT OF OHIO


STATE OF OHIO EX REL.OHIO CONCRETE CONSTRUCTIONASSOCIATION2600 Corporate Exchange Drive, Suite 165Columbus, OH 43231,

Case No.

Relator,

V.

OHIO DEPARTMENT OFTRANSPORTATION,1980 West Broad StreetColumbus, OH 43223,

Respondent.

VERIFIED COMPLAINT FOR WRIT OF MANDAMUS

Relator Oliio Concrete Construction Association ("OCCA"), for its verified complaint

against Respondent Ohio Department of Transportation ("Respondent" or "ODOT"), avers as

follows:

1. Relator OCCA is an Ohio-based trade association, comprised of concrete

construction contractors who do business in Ohio.

2. Respondent ODOT is a "public office" as that term is defined under

Section 149.011(A) of the Ohio Revised code, and has custody of the records that are the subject

of this action.

3. This is an action for writ of mandamus under the Ohio Public Records

Act, Ohio Revised Code Section 149.43, to compel Respondent to produce public records.

4. Jurisdiction is proper in this Court pursuant to Article IV, § 2 of the Ohio

Constitution and Rule X of the Rules of Practice of the Ohio Supreme Court.

5. Under Section 149.43(A)(1), "`public record' means records kept by any

public office, including, but not limited to, state ... units."

6. Ohio Revised Code Section 149.011(G) defines "records" to include "any

document, device, or item, regardless of physical form or characteristic, including electronic

records,... 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."

7. Section 149.43(B)(2) provides that "[t]o facilitate broader access to public

records, a public office ... shall organize and maintain public records in a manner that they can

be made available for inspection."

8. Under Section 149.43(B)(1), "all public records responsible to the request

shall be promptly prepared and made available for inspection to any person at all reasonable

times during regular business hours."

9. The records at issue are kept by Respondent and evidence its organization,

functions, policies, positions, procedures, and/or operations.

COUNT I

10. Relator repeats and realleges the foregoing allegations as if fully set forth

herein.

11. On or about October 17, 2008, OCCA served, via hand delivery, a public

records request upon Respondent, a true and accurate copy of which is attached hereto as Exhibit

A, seeking the opportunity to inspect the following public records (the "October 17 Public

Records Request"):

2

(1) The files containing complete cost estimates/projections for ProjectNo. 080507, PID No. 78570, CLI-SR 73-8.34 (the "WilmingtonBypass project");

(2) The files containing research, data, studies, conununications, orother information with respect to the use of different pavementmarkings and pavement marking materials specified in Table 397-1 of ODOT's Traffic Engineering Manual on asphalt versusconcrete pavement;

(3) The files containing documents, correspondence and/or otherdocumentation with respect to ODOT's decision to requiredifferent pavement parking systems for asphalt and concretealternative bids for the Wilmington Bypass project;

(4) The files containing documents reflecting any calculations ofamounts paid and/or saved by ODOT in the current fiscal yearunder Item 401.20 of ODOT's Construction and Materials'specifications; i.e:, the "Asphalt Binder Price Adjustment";

(5) The complete correspondence file(s) for the Wilmington Bypassproject for both ODOT's headquarters and ODOT's District 8office;

(6) E-mails to or from ODOT Director James Beasley, ODOT DeputyDirector Bill Lindenbaum and/or District 8 Deputy Director HansJindal, specifically referencing or relating to the WilmingtonBypass project, from conception to present;

(7)

(8)

(9)

Since April 1, 2008, e-mails (or other documents memorializingcorrespondence) between any ODOT employee and: (a) the JohnR. Jurgensen Companies; (b) the E.S. Wagner Co.; and (c) FlexiblePavements of Ohio.

The files containing life cycle cost analysis, and supportingdocumentation, for the Wilmington Bypass project fromconception to present; and

The files containing complete change orders, and supportingdocumentation, for the following ODOT Project Numbers: (a)040294; (b) 050108; (c) 060117; (d) 060087; and (e) 060150.

Collectively, the requested public records are referred to herein as the "ODOT Records."

3

12. Oi or about October 21, 2008, Respondent responded, in writing, and

indicated: "We are in the process of gathering documents responsive to this request for your

inspection. We will notify Terri Thompson once these documents are available for review."

Respondent made no objection to production of the ODOT Records. A true and accurate copy of

Respondent's correspondence of October 21, 2008, is attached hereto as Exhibit B.

13. However, no documents were produced by Respondent in either October

or November, and thus on or about December 10, 2008, OCCA sent a letter to Respondent, a true

and accurate copy of which is attached hereto as Exhibit C, inquiring as to the status of the

public records. The letter stated in particular part: "We are following-up regarding your

correspondence of October 21, 2008 (a copy of which is enclosed) as to the status of our public

records request. Your offices advised us in early November that the records would be

forthcoming. We would appreciate it if you would look into the status of the production and

advise of the same."

14. In response to the correspondence of December 10, 2008, ODOT made

available certain records at its District Eight offices. An inspection by representatives of OCCA

revealed that the only materials produced were engineering materials. As such, on or about

December 24, 2008, OCCA sent yet another letter, a true and accurate copy of which is attached

hereto as Exhibit D, seeking production of the ODOT Records.

15. As of the filing of this action, 111 days have passed since OCCA hand

delivered its public records request to Respondent.

16. To date, however, Respondent has not made available for inspection the

ODOT Records (except for engineering records). Nor has it, pursuant to Section 149.43(B)(3),

offered any reason for the defacto denial (or for that matter, delay) of the October 17 Public

4

Records Request. Accordingly, Respondent has failed to make public records available for

inspection.

17. Such delay and lack of responsiveness is both in violation of the Ohio

Public Records Act and Respondent's own Public Records Act Policy and Procedures, a true and

accurate copy of which is attached hereto as Exhibit E (the "ODOT Public Records Policy").

Specifically, ODOT's Public Records Policy provides, among other items:

"If a request is ambiguous or overly broad, ODOT will give you anopportunity to revise the request and explain how the records aremaintained and accessed at the Department."

• "If the requested record contains infomiation that is exempt (aslisted below), ODOT will make available the portion of the recordthat is not exempt and clearly redact the exempt portion of therecord."

• "If a request is denied in whole or in part (by redaction), theDepartment shall provide you with an explanation of the denial,which includes the legal authority for the denial. If the originalrequest was in writing, the explanation of the denial will also be inwriting."

• "Documents will be promptly prepared and made available forinspection. If you want copies of the documents, ODOT mayrespond by electronic mail or other means if you have noobjection. If you want hard copies, the standard charge is 5 centsper page. ODOT may charge 50 cents per page if the copies arelarger then 8%z X 11. Postage may be included in the charges.The copying fee may be waived for requests under 10 pages.ODOT may require prepayment of the cost involved in providingthe copy of the public record."

• "ODOT must respond to public records requests within areasonable amount of time. What is a reasonable amount of timedepends upon such factors as the extent of the request and physicallocation of the documents."

18. Indeed, as reflected on Exhibit F hereto, ODOT has created "form"

responses to explain why public records are being redacted or denied.

5

19. In response to the October 17 Public Records Request, ODOT did not, in

violation of its own policy, indicate that the request was "ambiguous or overly broad;" did not

redact any records; did not provide an explanation for any denial; did not promptly prepare and

make available the documents for inspection; and otherwise did not respond to the public records

request within a reasonable amount of time.

COUNT II


herein.

21. Under Section 149.43(B)(1), "all public records shall be promptly

prepared and made available for inspection to any person at all reasonable times during regular

business hours." Additionally, "a public office or a person responsible for public records shall

make copies available at cost, within a reasonable period of time."

22. Respondent has failed to timely produce the ODOT Records in violation

of Section 149.43(B)(2).

COUNT III


herein.

24. Section 149.43(C)(1) provides that if a requestor of public records

transmits a written request by hand delivery to inspect or receive copies of any public records in

a manner that fairly describes the public record or class of public records to the public office, the

requestor shall be entitled to recover statutory damages if the Court determines that the public

office failed to comply with the Public Records Act.

25. The current statutory damage is fixed at $100 for each business day during

which the public office failed to comply with its obligations in accordance with the Act.

26. OCCA is entitled to an award of statutory damage, plus reasonable

attorneys' fees and costs, for Respondents' failure to timely produce public records.

WHEREFORE, Relator prays for the following:

A. A writ of mandamus compelling Respondent to produce the ODOT

Records immediately and a finding that Respondent did not timely produce the public records;

B. An award of statutory damages;

C. Its costs and expenses, inclu attorneys' fees incurred herein; and

D. Such other and furthe ef as, his Court deems appropriate.

tted,

ion W Kittle, Jr. X042679)Christopher J. Hogan (0079829)ZEIGER, TIGGES & LITTLE LLP3500 Huntington Center41 South High StreetColumbus, Ohio 43215(614) 365-9900(614) 365-7900littlenlitohio.comhoganglitohio.com

Attorneys for Relator

853-001:190324

7

VERIFICATION

I, Tom Norris, declare on behalf of the Ohio Concrete Construction Association, that I

have read the Verified Complaint and know the contents thereof; and that the same are true and

correct to the best of my knowledge.

STATE OF OHIO. ss

COUNTY OF FRANKLIN :

Sworn to before me and subscribed in my presence this J^^ day of February, 2009.

853-001:190489 TERRi L. THOMPSONNotary Public, State of Ohio

My commission expires QB/24/2009


STATE. OF OHIO EX RFi„OHIO CONCRETE CONSTRUCTIONASSOCIATION, Case No.

Relator,

V.

OHIO DEPARTMENT OFTRANSPORTATION,

Respondent.

AFFIDAVIT OF CHRISTOPHER J. HOGAN

STATE OF OHIO

COUNTY OF FRANKLIN: SS:

Christopher J. Hogan, first being duly sworn according to law, deposes and states that he

has personal knowledge of matters set forth herein except as specifically noted otherwise, and

further states as follows:

1. I am an attorney with the law firm of Zeiger, Tigges & Little LLP.

2. I represent the Ohio Concrete Construction Association ("OCCA").

3. As set forth in the Complaint, and reflected in the exhibits attached thereto, on

October 17, 2008, I served, on behalf of OCCA, a public records request, via hand delivery, upon

the Ohio Department of Transportation ("Respondent").

4. On or about October 21, 2008, Respondent responded, in writing, and indicated:

"We are in the process of gathering documents responsive to this request for your inspection.

We will notify Terri Thompson once these documents are available for review." Respondent

made no objection to production of the ODOT Records. A true and accurate copy of

Respondent's correspondence of October 21, 2008, is attached to the Complaint as Exhibit B.

5. However, no documents were produced by Respondent in either October or

November, and thus on or about December 10, 2008, I sent on behalf of OCCA a letter to

Respondent, a true and accurate copy of which is attached to the Complaint as Exhibit C,

inquiring as to the status of the public records. The letter stated in particular part: "We are

following-up regarding your correspondence of October 21, 2008 as to the status of our public

records request. Your offices advised us in early November that the records would be

forthcoming. We would appreciate it if you would look into the status of the production and

advise of the same."

6. In response to the correspondence of December 10, 2008, ODOT made available

certain records at its District Eight offices. An inspection by representatives of OCCA revealed

that the only materials produced were engineering materials. As such, on or about December 24,

2008, I sent on behalf of OCCA yet another letter, a true and accurate copy of which is attached

to the Complaint as Exhibit D, seeking production of the ODOT Records.

7. To date, however, Respondent has not made available for inspection the ODOT

Records (except for engineering records). Nor has it, pursuant to Section 149.43(B)(3), offered

any reason for the defacto denial (or for that matter, delay) of the October 17 Public Records

Request. Accordingly, Respondent has failed to make public records available for inspection.

8. Such delay and lack of responsiveness is both in violation of the Ohio Public

Records Act and Respondent's own Public Records Act Policy and Procedures, a true and

accurate copy of which is attached to the Complaint as Exhibit E (the "ODOT Public Records

Policy"). Specifically, ODOT's Public Records Policy provides, among other items:

2

• "If a request is ambiguous or overly broad, ODOT will give you anopportunity to revise the request and explain how the records aremaintained and accessed at the Department."

• "If the requested record contains information that is exempt (aslisted below), ODOT will make available the portion of the recordthat is not exempt and clearly redact the exempt portion of therecord."

• "If a request is denied in whole or in part (by redaction), theDepartment shall provide you with an explanation of the denial,which includes the legal authority for the denial. If the originalrequest was in writing, the explanation of the denial will also be inwriting."

. "Documents will be promptly prepared and made available forinspection. If you want copies of the documents, ODOT mayrespond by electronic mail or other means if you have noobjection. If yni, want h?*d copies, the stand?rd charge is 5 centsper page. ODOT may charge 50 cents per page if the copies arelarger then 8'h X 11. Postage may be included in the charges.The copying fee may be waived for requests under 10 pages.ODOT may require prepayment of the cost involved in providingthe copy of the public record."

• "ODOT must respond to public records requests within areasonable amount of time. What is a reasonable amount of timedepends upon such factors as the extent of the request and physicallocation of the documents."

9. Indeed, as reflected on Exhibit F to the Complaint, ODOT has created "form"

responses to explain why public records are being redacted or denied.

10. In response to the October 17 Public Records Request, ODOT did not, in

violation of its own policy, indicate that the request was "ambiguous or overly broad;" did not

redact any records; did not provide an explanation for any denial; did not promptly prepare and

make available the documents for inspection; and otherwise did not respond to the public records

request within a reasonable amount of time.

3

Further Affiant sayeth naught.

^Chris opher l. Hogpfn /

Sworn to and subscribed in my presence this 5-4 day of - ; 2009.

Notary Public

853-001:190680TERRI L. THOMPSON

Nnta!y Public, State of OhipMy commission expires 08/24/2009

4

TELEPHONE 16141 385-9900

FACEIMILE (614) 366•7600

ZEIGER, TIGGES & LITTLE LLP

ATTORNEYS AT LAW

370O HUNTINGTON CENTER

41 SOUTH HIGH STREET

COLUMBVS, OHIO 43215

October 17, 2008

Via Hand Delivery

Ohio Department of TransportationRecords Custodian1980 West Broad StreetColumbus, Ohio 43223

WFITER'S OIRECT NUMBER

(614) 324-5078

Re: Public Records Request

Dear Sir/Madam:

Pursuant to Section 149.43 of the Ohio Revised Code, we request an opportunity toinspect and copy the following public records:

(1) The files containing complete cost estimates/projections for Project No. 080507,PID No. 78570, CLI-SR 73-8.34 (the "Wilmington Bypass project");

(2) The files containing research, data, studies, communications, or other informationwith respect to the use of different pavement markings and pavement markingmaterials specified in Table 397-1 of ODOT's Traffic Engineering Manual onasphalt versus concrete pavement;

(3) The files containing doeuments, correspondence and/or other documentation withrespect to ODOT's decision to require different pavement parking systems forasphalt and concrete alternative bids for the Wilmington Bypass project;

(4) The files containing documents reflecting any calculations of amounts paid and/orsaved by ODOT in the current fiscal year under Item 401.20 of ODOT'sConstruction and Materials' specifications; i.e., the "Asphalt Binder PriceAdjustment";

(5) The complete correspondence file(s) for the Wilmington Bypass project for bothODOT's headquarters and ODOT's District 8 office;

EXHIBIT

A

ZEIGER, TIGGES & LITTLE r.Lp

Ohio Department of TransportationOctober 17, 2008Page 2

(6) E-mails to or from ODOT Director James Beasley, ODOT Deputy Director BillLindenbaum and/or District 8 Deputy Director Hans Jindal, specificallyreferencing or relating to the Wilmington Bypass project, from conception topresent;

(7)

(8)

(9)

Since April 1, 2008, e-mails (or other documents memorializing correspondence)between any ODOT employee and: (a) the John R. Jurgensen Companies; (b) theE.S. Wagner Co.; and (c) Flexible Pavements of Ohio.

The files containing life cycle cost analysis, and supporting documentation, forthe Wilmington Bypass project from conception to present; and

The files containing complete change orders, and supporting documentation, forthe following ODOT Project Numbers; (a) 040294; (b) 050108; (c) 060117; (d)060087; and (e) 060150.

Pursuant to Section 149.43(B)(1), please promptly make these documents available forinspection. Please contact the undersigned or the undersigned's assistant, Terri Thompson, at614-324-5065 when these records are available for inspection. Thank you for your attention tothis matter.

853•601:188279

OHIO DEPARTMENT OF TRANSPORTATIONCENTRAL OFFICE, 1980 WEST BROAD $TREET, COLUMBUS, OH 43223

TEn STRICKLAND, GOVERNOR • JAMES G. BEASLEY, P.E„ P.S„ DIRECTOR

October 21, 2008

Christopher HoganZeiger, Tigges & Little LLP3500 Huntington Center41 South High StreetColumbus, Ohio 43215


Dear Mr, Hogan:

This letter is in response to your letter dated October 17, 2008. In this letter you requested toinspect the following documents:

(1) The files containing complete cost estinzates/projections for Project No. 080507, PIDNo. 78570, CLI-SR 73-8.34 (the "Wilmington Bypass project");

(2) The files containing research, data, studies, communications, or other informationwith respect to the use of different paveinent rnarlcings and pavement markingmate-ials specified in Table 397-1 of ODOT's Traffic Engineering Manual on asphaltversus concrete pavement;

(3) The files containing docurnents, correspondence, and/or other documentation withrespect to ODOT's decision to require different pavernent parlcing systems for asphaltand concrete altemative bids for the Wilmington Bypass project;

(4) The files containing documents reflecting any calculations of amounts paid and/orsaved by ODOT in the cuLrent fiscal year under Item 401.20 of ODOT's Constructionand Materials' specifications; i.e. the "Asphalt Binder Price Adjustment";

(5) The complete correspondence file(s) for the Wihnington Bypass project for bothODOT's headquaiters and ODOT's District 8 office;

(6) E-mails to or from ODOT Director James Beasley, ODOT Deputy Director BillLindeubaum and/or District 8 Deputy Director Hans Jindal, specifically referencingor relating to the Wilmington Bypass project, from conception to present;

(7) Since April 1, 2008, e-mails (or other documents memorializing correspondence)between any ODOT employee and: (a) the John R. Jurgensen Companies; (b) the E,S.Wagner Co.; and (c) Flexible Pavements of Ohio;

AN EqUAL OPPORTUNITY EMPLOYER

(8) The files containing life cycle cost analysis, aaid supporting documentation, for theWilmington Bypass project from conception to present; and

(9) The files containing com.plete change orders, and supporting documentation, for thefollowing ODOT Project Numbers: (a) 040294; (b) 050108; (c) 060117; (d) 060087;and (e) 060150.

We are in the process of gathering the documents responsive to this request for your inspection.

We will notify Terri Thompson once these documents are available for review.

Sincerely,

Heather L. SullivanAssistant Legal Counsel

cc: Scott VamerBill Beclcer

TELEPHONE: ( 614) 365-9900

FACSIMILE: ( 614) 365-7900

ZEIGER, TIGGES & LITTLE LLP

ATTORNEYS AT LAW

3500 HUNTINGTON CENTER

41 SOUTH HIGH STREET

COLUMBUS, OHIO 43215

December 10, 2008

Heather L. Sullivan, Esq.Assistant Legal CounselOhio Department of Transportatior.1980 West Broad StreetColumbus, Ohio 43223


Dear Heather:

WRITER'S DIRECT NUMBER:

(614) 324-5078

We are following-up regarding your correspondence of October 21, 2008 (a copy ofwhich is enclosed) as to the status of our public records request. Your offices advised us in earlyNovember that the records would be forthcoming. We would appreciate it if you would lookinto the status of the production and advise of the same.

Enclosure

853-001:189642

EXHIBIT

C

TELEPHONE:181413®39900

GAOSIMILE: ( 814) 305-7900

ZEIGEIi, TIGGES & LITTLE LLP

ATTORNEYS AT LAW

3500 HUNTINGTON GENTER

41 SOUTH HIGH BTREET

COLUMBUS. OHIO 43215

December 24, 2008

Via Email

Heather L. Sullivan, Esq.Assistant Legal CounselOhio Department of Transportation1980 West Broad StreetColumbus, Ohio 43223

Dear Eleather:


WRITER9 OIRECT NUMBER

(6I4)324-5078

In response to our letter of December 10, 2008, the Ohio Department of Transportationmade available records at the District Eight offices. Unfortunately, contrary to what had beenindicated to us, the records did not include all of the materials sought by our public recordsrequest. Instead, the only documents produced are what can be generally characterized asengineering materials. All other materials, our representative has advised, are apparently stillbeing reviewed by ODOT's legal counsel.

We again request that these documents be produced for inspection as soon as possible.

853-001:169905

EXHIBIT

D

Ohio Department of Transportation

Public Records Act Policy and ProceduresThe purpose of this policy is to ensure that all public records requests are handled in a

timely and uniform manner at the Ohio Department of Transportation ("O13OT2.

WHAT IS A PUBLIC RECORD?

EXHIBIT

E

A public record is any document, device, or item, regardless of physical form or characteristic, including an

electronic record, created or received by or coming under the jurisdiction of any public office of the state, which serves to

document the organization, functions, policies, decisions, procedures, operations, and other activities of ODOT.

P_ROCEDURES F9R I-IANDLING-Ap1JBLICREeORDS REQUESS^ --

1. ODOT will respond to public records requests whether therequest is written or verbal. Each district and central office willhave a copy of its current retention schedule available.

2. ODOT wilt acknowledge receipt of the request verbally orin writing. You may be asked to put your request in writing,however, if you decline, ODOT must honor your verbal request.

3. If an ODOT employee believes it would help ensure theaccuracy of the Department's response, you may be askedfor identification and the intended use of the information yourequest but you are not obligated to give this information.

4. If a request is ambiguous or overly broad, ODOT will give youan opportunity to revise the request and explaie how the recordsare maintained and accessed at the Department.

5. If the requested record contains information that is exempt(as listed below), ODOTwil! make available the portiori of therecord that is not exempt and-clearly redact the exempt portionof the record.

If a request is denied in whole or in part (by redaction), theDepartment shall provide you with an explanation of the denial, whichincludes the legal authority for the denial. If the original request was inwriting, the explanation of the denial wilt also be in writing.

Documents will be promptly prepared and made available forinspection. If you want copies of the documents, ODOT may respondby electronic mail or other means if you have no objection. If youwant hard copies, the standard charge is 5 cents per page. ODOTmay charge 50 cents per page if the copies are larger then 8'h X11. Postage may be included in the charges. The copying fee may bewaived for requests under 10 pages. ODOT may require prepaymentof the cost involved in providing the copy of the public record,

You are permitted to choose to have the public record copied on paperar upon any other mediumin which it can reasonably be duplicated.

ODOT must respond to public records requests within a reasonableamount of time. What is a reasonable amount of time depends uponsuch factors as the extent of the request and physical location of the

. .. .documents.

8

9

EXEMPTIONS FROM THE PUBLIC RECORDS ACT:

The following are examples of records exempt from disclosure under the public records act:

1. Cost estimates of projects until all bids have been received, R.C. 5525.15.

2. Information relative to bidder qualifications, R.C. 5525.04.

3. Sealed bids for construction projects,R.C. 5525.10.

4. Trade secrets, R.C. 1333.61(D).

6. Employee medical records, R.C. 149:43 (A).

7. Social Security numbers, R.C. 149.43 (A).

S. Certain selection devices used in making hiring and promotional decisions,R.C. 124.09(B).

9. Certain communications between ODOT employees and an attorneywithin the staff of ODOT's Office of Chief Legal Counsel, the Attorney

General, or special counsel appointed by the Attorney General,R.C. 149.43(A). -

10. Files on current administrative investigations, B.C. 149.43 (A)(2).

11. Home addresses and home telephone numbers of stateemployees per State ex rel. Dispatch Printing Co.v:Johnson(2005), 106OhioS(.3d160..

12. Any records created or maintained by ODOT for securitypurposes and infrastructure records that disclose theconfiguration of the Department's critical systems, including butnot limited to, communication, computer, electrical; mechanical,ventilation, water, plumbing systems or security codes. This doesnot mean a simple floor plan that discloses the physical locationof the components of the office,R.C:149.433.

Pages - YKK

ODOT Home > Divisions > Chlef Legal Counsel > PublicRecords J.ugv ....-

Under Ohio's Public Records Law, ODOT must now provide explanations for why documents are redacted or denied.The Office of Chief Legal Counsel has drafted standard form letters for the most common reasons for denying, orredacting, a public record request. Please note, whenever a public record is redacted or denied Chief LegalCounsel must receive a copy of the letter explaining the reasons for redaction or denial. Please sendthese letters, by interoffice mail, to Catherine Cola Perkins's attention.Public Recoi•ds Request Doeunients

Type Title Naine

^D Category : Procedures (1)

Modified

Publlc Records Request Standard Operating Procedure Public Records (9-1-07) 10/23/2008 11:38 AM

I: J Cptegory : Redaction and Denials (11)

Attorney Client Priviledge Denial Attorney Client 10/23/2008 11:43 AM

Bldder Quatifications Denial Bidder Qualifications 10/23/2008 11:44 AM

YJCurrent Administrative Investigations Denial Current Al's 10/23/2008 11:45 AM

I^^

Home Address and Telephone Exempt Denial Home Adresses and Phone Numbers 10/23/2008 11:46 AM

Any and All Information - Lacks Specificity and Partlcularlty Denial Lack Specificity and Particularity 10/2312008 11:47 AM

Medical Records Denlal Medical Records 10/23/2008 11:48 AM

Cost Estimates Exempt Until AII Bids are Received Denial Open Cost Estimates 10/23/2008 11:49 AM

Sealed Bids Exempt from Disclosure Denial Sealed Bids 10/23/2008 11:50 AM`J

Security and Infrastructure Exemption Denial Security Issue 10/23/2008 11:51 AM

*eJ Selection Devices in Hiring Denlal Selection Devices 10/23/2008 11:56 AM

m Social Security Numbers Denial Social Security Nunibers 10/23/2008 11:57 AM

___ _...._..._Definltion of Tcrzns

Attorney ClientCertain communications between ODOT employees and an attorney within the staff of ODOT's Office of Chief

; Legal Counsel, the Attorney General, or special counsel appointed by the Attorney General may be redacted ordenied.

Lacks Specificity and ParticularityIf a public record request asks for "any and all" documents, etc., ODOT may deny, redact, or request additionalinformation.

Open Cost EstimatesCost estimates of projects until all bids received may be redacted or denied. Please note, that we may releasethis information to a local government authority who is participating in the cost.

Security and Infrastructure Records are defined by the Ohio Revised Code as:ORC § 149.433. (A)(2) "Infrastructure record" means any record that discloses the configuration of a publicoffice's or chartered nonpublic school's critical systems including, but not limited to, communication, computer,electrical, mechanical, ventilation, water, and plumbing systems, security codes, or the infrastructure orstructural configuration of the building in which a public office or chartered nonpublic school is located."Infrastructure record" does not mean a simple floor plan that discloses only the spatial relationship ofcomponents of a public office or chartered nonpublic school or the building in which a public office or charterednonpublic school is located.

ORC § 149.433. (A)(3) "Security record" means any of the following:(a) Any record that contains information directly used for protecting or maintaining the security of a public

office against attack, interference, or sabotage;(b) Any record assembled, prepared, or maintained by a public office or public body to prevent, mitigate, or

respond to acts of terrorism, including any of the following:(i) Those portions of records containing specific and unique vulnerability assessments or specific and

unique response plans either of which is intended to prevent or mitigate acts of terrorism, and communicationcodes or deployment plans of law enforcement or emergency response personnel;

(ii) Specific intelligence information and specific investigative records shared by federal and international

http://www.dot.state.oh.us/Divisions/ChiefLegallPages/PRR.aspx 2/4/2009

r aeca - i ivx

law enforcement agencies with state and localiaw enforcement and public safety agencies;(iii) National security records classified under federal executive order and not subject to public disclosure

under federal law that are shared by federal agencies, and other records related to national security briefings toassist state and local government with domestic preparedness for acts of terrorism.

(c) A school safety plan adopted pursuant to section 3313.536 [3313.53.6] of the Revised Code.

Selection DevicesCertain selection devices used in making hiring and promotional decisions may be redacted or denied.

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The Ohio Department of Transportation1980 West Broad Street, Columbus Ohio, 43223Ted Strickland Governor I Jolene M. Molitoris,ODOT DireorPrivacy btatement i Advanced _Search i Feedback

http://www.dot.state.oh.us/Divisions/ChiefLegal/Pages/PRR.aspx 2/4/2009

Standard Procedures No. 150-001 (SP)Effective: September 29, 2007Responsible Division: Chief Legal CounselSupercedes: WR303Supercedes: 150-001(SP) dated 10/1/03

PROCEDURE FOR THE HANDLING OF PUBLIC RECORD REQUESTS

PROCEDURALSTATEMENT:

This policy is designed to assist those individuals responsible for handling public recordrequests. The purpose of this policy is ensure that those individuals are complying withthe law regarding public records.

AUTHORITY:

Ohio Revised Code § 149.43

SCOPE:

All districts, divisions and offices of the Ohio Department of Transportation (ODOT).

BACKGROUND AND PURPOSE:

The purpose of this policy is to ensure that all public record requests are handled in atimely and uniform manner at ODOT. This policy supercedes all previous policiesconcerning public record requests.

DEFINITIONS:

Public Record: Any document, device, or item, regardless of physical form orcharacteristic that is also created by a public office, received by a public office, or comingunder the jurisdiction of any public office and which serves to document the organization,functions, policies, decisions, procedures, operations, and other activities of the office.

Excegtion: Certain documents, or portions of documents in the possession of ODOT are

exempt from disclosure under state or federal law.

Requestor: Person who makes a public records request.

Standard Procedure No: 150-001(SP)Effective: September 29, 2007Page 2 of 4

TRAINING:

R.C. 149.43(E)(1) requires that all elected officials or their appropriate designees shallattend training approved by the attorney general.

FISCAL ANALYSIS:

Implementation of this policy will have no fiscal impact upon the Department.

IDENTIFICATION OF A PUBLIC RECORD:

A. A public record is any record stored on a fixed medium such as paper, computer,or film. In order to constitute a "public record" the record must serve to documentthe organization, functions, policies, decisions, procedures, operations, or otheractivities of ODOT. The following are examples of records exempt fromdisclosure under the public records act:

1. Cost estimates of projects until all bids received, R.C. 5525.15.

2. Information relative to bidder qualifications, R..C. 5525.04.

3. Sealed bids for construction projects, R.C. 5525.10.

4. Trade secrets, R.C. 1333.61(D).

5. Employee medical records, R.C. 149.43 (A).

6. Social Security numbers, R.C. 149.43 (A).

7. Certain selection devices used in making hiring and promotional decisions,R.C. 124.09(B).

8. Certain communications between ODOT employees and an attorney within thestaff of ODOT's Office of Chief Legal Counsel, the Attorney General, orspecial counsel appointed by the Attomey General, R.C. 149.43(A).

9. Files on current administrative investigations, R.C. 149.43 (A)(2).

Standard Procedure No.: 150-001Effective: September 29, 2007Page 3 of 4

10. Home addresses and home telephone numbers of state employees per State exrel. Dispatch Printing Co. v. Johnson (2005) 106 Ohio St.3d 160.

11. Any records created or maintained by the ODOT for security purposes andinfrastructure records that disclose the configuration of the Department'scritical systems, including but not limited to, communication, computer,electrical, mechanical, ventilation, water, plumbing systems or security codes.This does not mean a simple floor plan that discloses the physical location ofthe components of the office, R.C. 149.433.

PROCEDURES:

A. Public records requests may be written or oral. If the public record request is aroutine request and you have received similar requests in the past, you mayrespond to the request without contacting the Office of Chief Legal Counsel. If therequest is unusual or you suspect the records request may be related to litigationinvQlving ODOT, contact the Office of Chief Legal Counsel for direction.

1. ODOT must designate a records custodian or records manager for each districtand central office. The records custodian must acknowledge receipt of a copyof the public records policy.

2. ODOT must have a copy of its current retention schedule available to thepublic at a location readily available to the public. The Office of Chief LegalCounsel recommends keeping a copy of the retention schedule at the front deskof each district as well as central office.

B. Acknowledge receipt of the request verbally or in writing. You can ask therequestor to put the request in writing, however, if they decline, you must honorthe verbal request.

1. If you believe it would help ensure the accuracy of your response, you may askfor the requestor's identification and intended use but only after you inform therequestor that they are not obligated to give you this information.

2. If a request is ambiguous or overly broad, you must give the requestor anopportunity to revise the request and explain how the records are maintainedand accessed at ODOT. The Office of Chief Legal Counsel recommendsasking what type of information is being sought if you need clarification on arequest.

Standard Procedure No.: 150-001Effective: September 29, 2007Page 4 of 4

3. If the requested record contains information that is exempt (as listed above),the Department must make available to the requestor the portion of the recordthat is not exempt and clearly redact the exempt portion of the record.

4. A redaction of any portion of the record is considered a denial of the request.

5. If a request is denied in whole or in part (by redaction), the Department mustprovide the requestor with an explanation of the denial, which includes thelegal authority for the denial. If the original request was in writing, theexplanation of the denial must also be in writing.

C. Documents must be promptly prepared and made available for inspection. If therequestor wants copies of the documents, you may respond by electronic mail orother means if the requestor has no objection. If the requestor wants hard copies,the standard charge is 5 cents per page. You may charge 50 cents per page if thecopies are larger then 81/2 X 11. Postage may be included in the charges. Thecopying fee may be waived for requests under 10 pages.

1. You may require prepayment of the cost involved in providing the copy of thepublic record.

2. The requestor is permitted to choose to have the public record copied on paperor upon any other medium in which it can reasonably be duplicated.

D. Public records requests must be responded to within a reasonable amount of time.What is a reasonable amount of time depends upon such factors as the extent ofthe request and physical location of the documents.

E. Each district, department, or division within ODOT should keep a record of whenthe request was received and when the requested documents were provided to therequestor.

DATE

NAMEADDRESS LINE 1ADDRESS LINE 2ADDRESS LINE 3


Dear NAME,

This letter is in response to your public records request dated DATE. In your letter, yourequested copies of the following documents: "".

[Some ofJ The documents you requested are exempt from disclosure under the public recordsact. Under the Ohio Revised Code § 149.43(A), certain communications between the OhioDepartment of Transportation ("ODOT") employces and an attorney within ODOT's Office ofChief Legal Counsel, the Ohio Attorney General, or outside counsel appointed by the AttomeyGeneral are exempt from disclosure. Therefore, we are unable to provide you with [some of] thedocuments you have requested.

Sincerely,

DATE



Dear NAME,

This letter is in response to your public records request dated DATE. In your letter, yourequested copies of the following documents: " ".

These documents are exempt from disclosure under the public records act. Under Ohio RevisedCode § 5525.04, information relative to bidder qualifications is exempt from disclosure.Therefore, we are unable to provide you with [some ofJ the documents you have requested.

Sincerely,

DATE



Dear NAME,

This letter is in response to your public records request dated DATE. In your letter, you requestcopies of the following documents: " ".

The documents you requested are exempt from disclosure under the public records act. Underthe Ohio Revised Code § 149.43(A)(2), files on current administrative investigations are exemptfrom disclosure. Therefore, we are unable to provide you with the documents you haverequested.

Sincerely,

DATE



Dear NAME,


[Some ofJ The information you requested are exempt from disclosure under the public recordsact. Pursuant to State Ex. Rel. Dispatch Printing Co. v. Johnson 106 Ohio St.3d. 160 (2005),home addresses and home telephone numbers of state employees are not considered a publicrecord. Therefore, we are unable to provide you with [some ofJ the information you haverequested.

Sincerely,

DATE

NAMEADDRESS LINE IADDRESS LINE 2ADDRESS LINE 3


Dear NAME,


Your request, which seeks "any and all information [documents,] [records]," lacks specificityand particularity. As such, this portion of your request is improper, pursuant to State Ex. Rel.Dillery v. Icsman, et.al, 92 Ohio St. 3d. 312 (2001). Plcase reformulate your request to identifythe specific documents you wish to receive.

Sincerely,

DATE



Dear NAME,


These documents are exempt from disclosure under the public records act. Under the OhioRevised Code § 149.43(A), employee medical records are exempt from disclosure. Therefore,we are unable to provide you with the documents you have requested.

Sincerely,

DATE



Dear NAME,


These documents are exempt from disclosure under the public records act. * Under Ohio RevisedCode § 5525,15, cost estimates are exempt from disclosure until all bids have been received.Therefore, we are unable to provide you with [some ofJ the documents you have requested.

Sincerely,

*Please note, that we may release this information to a local government authority who isparticipating in the cost.

DATE



Dear NAME,


These documents are exempt from disclosure under the public records act. Under Ohio RevisedCode § 5525.10, sealed bids for construction projects are exempt from disclosure. Therefore, weare unable to provide you with [some ofJ the documents you have requested.

Sincerely,

DATE



Dear NAME,


The documents you requested are exempt from disclosure under the public records act. UnderOhio Revised Code § 149.433, the Ohio Department of Transportation security and infrastructurerecords* are exempt from disclosure. In addition, infrastructure records that disclose theconfiguration of critical systems are exempt from disclosure. Therefore, we are unable to provideyou with [some of] the documents you have requested.

Sincerely,

*§ 149.433. (A)(2) "In&astructure record" means any record that discloses the configuration of a public office's orchartered nonpublic school's critical systems including, but not limited to, communication, computer, electrical,mechanical, ventilation, water, and plumbing systems, security codes, or the infrastructure or structuralconfiguration of the building in which a public office or chartered nonpublic school is located. "Infrastructurerecord" does not mean a simple floor plan that discloses only the spatial relationship of components of a publicoffice or chartered nonpublic school or the building in which a public office or chartered nonpublic school islocated.

§ 149.433. (A)(3) "Security record" means any of the following:(a) Any record that contains information directly used for protecting or maintaining the security of a public

office against attack, interference, or sabotage;(b) Any record assembled, prepared, or maintained by a public office or public body to prevent, mitigate, or

respond to acts of terrorism, including any of the following:(i) Those portions of records containing specific and unique vulnerability assessments or specific and unique

response plans either of which is intended to prevent or mitigate acts of terrorism, and communication codes ordeployment plans of law enforcement or emergency response personnel;

(ii) Specific intelligence information and specific investigative records shared by federal and intemational lawenforcement agencies with state and local law enforcement and public safety agencies;

(iii) National security records classified under federal executive order and not subject to public disclosureunder federal law that are shared by federal agencies, and other records related to national security briefings to assiststate and local government with domestic preparedness for acts of terrorism.

(c) A school safety plan adopted pursuant to section 3313.536 [3313.53.6] of the Revised Code.

DATE



Dear NAME,


These documents are exempt from disclosure under the public records act. Under Ohio RevisedCode § 124.09(B), certain selection devices used in making hiring and promotional decisions areexempt from disclosure. Therefore, we are unable to provide you with [some of] the documentsyou have requested.

Sincerely,

DATE



Dear NAME,


Some of the information in these documents are exempted from disclosure under the publicrecords act. Under State ex rel. Beacon Journal Publ. Co. v. City ofAkron, 68 Oh. St.3d 40(1992) and the Ohio Revised Code § 149.43(A), social security numbers are exempt fromdisclosure. Therefore, we are unable to provide you with some of the information you haverequested.

Sincerely,