Attorney General Dann asked to settle questions on media access loophole

By Chad D. Baus

The Youngstown Vindicator is reporting that Trumbull County prosecutor Dennis Watkins has instructed the sheriff not to allow journalists to copy the confidential records of concealed handgun llicense (CHL) holders, and has asked Ohio Attorney General Marc Dann to clarify how information about those who have licenses can be released under an amendment to Ohio's concealed carry law media access loophole.

From the story:

If Sheriff Thomas Altiere releases information to the media when the law prohibits it, the sheriff and media could be open to civil penalties, Watkins said Monday.

The current law prohibits the release of information about permit holders to the public.

However, an amendment that becomes effective Saturday gives journalists the right to view the name, county of residence and date of birth of each person for whom the sheriff has issued, suspended or revoked a license.

However, Watkins pointed out in his letter to Dann, journalists are not permitted to copy the information. However, the amendment does not define the word copy. Watkins wants Dann to define it as it applies to the law.

Under O.R.C. § 2923.129 (B) (1), Ohio law specifically states that the CHL list is confidential - not a public record:

"The records that a sheriff keeps relative to [concealed handgun licenses] ARE CONFIDENTIAL AND ARE NOT PUBLIC RECORDS." (emphasis added)

This portion of the statute is not new - it has been law in Ohio since concealed carry was first passed in 2004. Because they are considered confidential records, the general public may not access the records. However, thanks to a poison pill inserted by then-Gov. Bob Taft to in a last-ditch attempt to kill the original concealed carry legislation in late 2003, law provides an exception so that members of the media can see the confidential records.

Up to now, journalists were allowed to request the list, and some sheriffs have been provided copies of the entire list of license-holders to the newspapers. Some of those newspapers have then chosen to unilaterally make public that which is conclusively not public with the turn of a page or the click of a mouse.

The people, through their elected officials at the Ohio General Assembly, have decided to amend the law. The media access loophole still exists, but as of September 29, journalists may only “view” the record, and specifically may not “copy” the record. Opponents of the change have complained that the law does not define what the words “view” and “copy” mean, and this is the question that the Trumbull County prosecutor has asked Attorney General Marc Dann to settle.

The Buckeye State Sheriff's Association (BSSA) has advised sheriffs that their read on the law is that "you can't come in with any kind of a tape recorder. You can't take notes and write the names down. You can't do anything, because it only allows you to view the information." Likewise, the Vindicator reports that Prosecutor Watkins "has instructed the sheriff to prohibit journalists from copying the information, including photocopying, hand copying or making notes, either written or oral. This includes dictation into a recording device."

Perhaps as foreshadowing of an eventual finding that the legislature actually meant what it said (and that the BSSA and Prosecutor Watkins are interpreting it correctly), Attorney General Dann told the Columbus Dispatch recently that he "believed sheriffs were interpreting the law correctly". A spokesperson for Dann's office went further, expressing the Attorney General's dislike for the language of the amendment (which he voted for while still a state senator) and speculating that the General Assembly might readdress it, or that there would be a court challenge.

Only in the age of a President not knowing what the meaning if "is" is would we find such a deep debate over this question. As has been pointed out on this website previously, when interpreting statutes, words are to be given their plain English, every day meanings. In this case, the General Assembly used easy to understand words. “View” means just that, view, inspect, review i.e. they may read the record. “Copy” is similarly easy to understand. In the context of § 2923.129(B)(2), “copy” is used as a verb. Turning to the dictionary, the verb usage of “copy” is synonymous “reproduce.” In other areas of the Revised Code, when specific forms of “copy” were intended, modifiers were added to “copy” such as: “transcribed copy” “exact copy” “written copy” etc. In this case, just the general form of “copy” was used, which clearly indicates that all forms of reproduction were intended to be included. Some examples of “copy” that would qualify as reproduction would be: photograph of a record, photocopy of a record, hand copying the list, videotape of a record, orally reading a record into a recording device such as a tape recorder, cell phone, mp3 player etc.

When it originally passed House Bill 9, the legislation containing the much-debated amendment, the Ohio House overwhelmingly (by a 93-1 vote!) passed a bill containing much a stronger amendment which would have to allowed people with CHLs to protect their personal information from the media. Sadly, the language was stripped out by Republicans in the Ohio Senate and replaced with the current "view but not copy" modification.

Now that we have a governor who would support entirely eliminating journalist access to these confidential records, it is time for legislation that, at a bare minimum, would allow CHL-holders who believe the release of their information would compromise their safety to prevent the media from gaining access to their confidential records. Better yet, let's send Governor Strickland the bill he really wants to sign.