Ohio Auditor says public pension fund should give up records

Ohio Auditor of State Dave Yost is shedding light on state and local governments allegedly not complying with the state’s sunshine laws, though the spotlight is the only tool his office has to address the issue.

Yost’s office has responded to public requests with audits of 17 entities in the past year for compliance with the state’s public records laws, and deemed several slow or unwilling to comply with the law.

This is according to a report released this week — national Sunshine Week — chronicling the first year of the Sunshine Audit program, which Yost this week called “a small but significant success.”

But the program has its limits. The report notes three entities the auditor’s office says isn’t complying with the law, but Yost concedes his office can’t make them comply. According to the auditor’s office:

  • The Ohio Public Employees Retirement System improperly claimed attorney-client privilege in refusing to hand over records regarding an internal audit by an investment training and consulting firm; OPERS claimed the records were exempt because the firm’s work was under guidance of the agency’s attorney.
  • The Ohio Department of Agriculture failed to even respond to a request for records pertaining to animals confiscated from a Perrysburg man.
  • The city of Beachwood didn’t provide proper justification for redactions made to Mayor Merle Gorden’s calendar.

OPERS is the state’s largest pension fund, with assets of $91.2 billion and serving more than 1 million past and present Ohio workers. Yost said the agency’s actions represent a troubling practice of public entities extending attorney-client privilege beyond attorney work product or legal advice.

“I’m concerned about the over-use of attorney-client privilege,” Yost said.

But the only thing the auditor’s office can do in these cases is issue an audit finding, which has little more than political consequences. State law leaves it up to the requester to shoulder the cost of a lawsuit to enforce the law.

“If we can find a way to put some teeth into it, I think that’s for the better,” Yost said of the audit program.

But he does claim successes. Auditor’s office officials say another six agencies turned over records after auditors got involved. This includes Wright State University, which handed over contracts and financial records dealing with consultant Ron Wine the day after the I-Team requested an audit. The university had claimed the records were in “legal review” for two months.

Yost’s office conducts audits only after the attorney general’s public records mediation program is unable to resolve a dispute over public records. The AG’s office is limited to conducting mediation only if both parties agree to it, and can’t act when the complaint is against a state agency, which would be the attorney general’s client.

Yost said the Sunshine Audit gives the public leverage in requesting records.

“There’s a fundamental imbalance of power. The government has the records. They have the lawyers that are funded with tax dollars, and you got you,” he said. “With the Sunshine Audit, you have a fair chance of getting a hearing at the auditor’s office.”

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