New law on media access to CHL records confuses...just about everyone
By Chad D. Baus
Ohio gun owners and privacy advocates will forever remember the summer of 2007 because of Sandusky Register editor Matt Westerhold's decision to follow in the footsteps of other newspapers by abusing the special access journalists have been granted to Ohio concealed handgun license-holder's confidential information.
Although many state legislators, county sheriffs and even Governor Strickland himself expressed their displeasure with The Register's actions, few seemed willing to consider further measures to prevent the release of this confidential information until they could see how modifications to the media access loophole contained in legislation passed in late 2006 would work.
The media access loophole modifications contained in House Bill 9 (HB9) will finally take effect September 29, a date which marks the first attempt by the General Assembly to clarify its intent in giving journalists access to the records.
While some have been looking forward to this as a potential end to the problems of abuse, many of us have been skeptical of this "fix' since the day it was first proposed, for reasons which were raised at the time the bill was passed, and which are now being revisted as September 29 approaches.
The Columbus Dispatch is reporting that the law is not only being met with confusion by sheriffs and journalists, but in fact by the legislators who voted for it.
As per Substitute House Bill 9, the media access loophole language was changed as follows:
Clearly, the Senate (where the media access loophole originated in the first place) is attempting to clarify that it never intended to have journalists printing the entire list of CHL-holders in newspapers. While their efforts to keep these records confidential are appreciated, a story in the Columbus Dispatch details exactly why it may not be enough:
- A state public-records law that takes effect Sept. 29 has befuddled Ohio sheriffs, created disagreement among legislative supporters and surprised at least one First Amendment expert, who called it "patently unconstitutional."
The public-records debate in Ohio usually centers on whether records should be released. But in three weeks, Ohio will tell people -- specifically journalists -- for the first time that they can view public records but not copy them.
The law deals with conceal-carry handgun permits issued by county sheriffs.
Bob Cornwell, executive director of the Buckeye State Sheriffs' Association, admits that the law left him scratching his head for most of the summer.
"We have talked about this for three months now, and we still can't come to a conclusion -- other than to say that, if you have a photographic memory, you've got all the information you need," he said.
"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."
After a pause, Cornwell started to chuckle at his own words.
"It doesn't make sense," he said, stressing that he's only trying to implement the law -- he didn't write it.
Mark Weaver, former special counsel to the Ohio attorney general and a public-records specialist, said allowing reporters to view a record but not take notes "seems to be a distorted interpretation of the law, but there's no question the statute could be written more clearly."
"You could inspect it for a minute, walk outside, call your voicemail, spit out everything in your head, and then walk back in," he said. "It lends itself to tortured interpretation."
David A. Goldberger, an Ohio State University law professor and First Amendment expert, called the law preposterous and a clear free-speech violation.
"What you're doing is essentially interfering with the ability of the press to report information that they've been given access to," he said. "It's an effort at censorship under the guise of limiting access."
Attorney General Marc Dann [who voted for the law while a state senator last year] doesn't like the law but thinks sheriffs are interpreting it properly, said spokesman Leo Jennings III, who called it "sausage-making at its finest" at the Statehouse.
"We'd hope that the legislature would address this, or that someone challenges it in court," Jennings said.
But, as the Dispatch article goes on to point out, the lawmakers themselves have not agreed on what the law actually says.
- When House Bill 9 passed in December, Sen. David Goodman, R-New Albany, who helped craft some changes to the bill, said reporters could not copy names in their notebooks. But the same day, Sen. Steve Austria, R-Beavercreek, said, "Nothing prevents the reporter from writing down the information they need."
Later, Rep. Bill Seitz, R-Cincinnati, agreed with Austria in a speech on the Senate floor: "While they are not allowed to copy those records, they are allowed to sit there with a pen and paper and write them all down."
Asked for his opinion, House Bill 9 sponsor Rep. W. Scott Oelslager, R-Canton, would not give it. In December, he said: "Members of the press can go in, ask for the copies, but…cannot physically copy the record itself."
What is most interesting about these comments is that they are not new. During committee debate on the very language that is now causing such consternation, then-Sen. Eric Fingerhut suggested anti-gun journalists will quickly set about to find the loopholes in the loophole.
The December 13, 2006 Hannah Report quoted the anti-gun Fingerhut as saying the provision in the bill dealing with media access to the lists of persons receiving a concealed handgun licenses is "blatantly absurd."
- "It's crazy to authorize a reporter to look at a
public record but not be allowed to write it down.
What if they memorize five names and write them
down when they leave the building?
"What if they have a photographic memory and
can remember them all?
"What does 'copy' mean? To xerox? Or write it
in their notebooks?"
(It bears noting that the General Assembly never had such concerns about making sure gun owners had a clear definition of "plain sight".)
This same problem was addressed at the time of passage by Senate President Bill Harris with the Dayton Daily News, who seems to be suggesting that, at least in his mind, "copy" refers only to the xerox variety:
- Asked if the Senate version would permit reporters to take notes while viewing the [license] holders' names, Harris said he thought that reporters would be "sharp enough to have their pencil there.
"They would not be copying, but they would be taking notes," said Harris.
May a journalist make any record of the names etc?
HB9 specifically changed the disclosure of licensee information by Sheriffs. Pre-HB9, Sheriffs were to provide a copy of the record to the journalist. Post-HB9, the journalist may only “view” the record, and specifically may not “copy” the record. What does “view” and “copy” mean?
Words are to be given their plain English, every day meanings in interpreting statutes. 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.
While the intent of the fix was to prevent the media from obtaining and publishing entire lists, it is a clearly a mistake to allow the burden to remain on the anti-gun media to honor the will of the General Assembly. Time and again, the media has failed to prove they want the information only for the purposes they originally claimed (verifying training and background checks were being properly conducted), rather than as a means of gaining access to foster a wholesale publishing of what the law considers to be confidential information.
The history of this fight goes back to late 2003, when then-Governor Bob Taft (R) and the Republican controlled Ohio Legislature caved in to cries from the news media. An eleventh-hour modification to HB12, Ohio's original concealed carry law, allowed journalists access to the information to address their assertions of a need for "checks and
balances". Far from being used for what the proponents claimed, the unpopular provision which became known as the media access loophole, was instead exploited by openly anti-gun editorial boards as a means of intimidation against gun owners.
The 126th General Assembly (2005-2006) saw several attempts to remove the media access loophole, which again received opposition from then-Governor Taft. The Ohio House of Representatives, in a 93-1 vote, sent HB9, containing a provision which would have closed the loophole, to the Senate. In late December of 2006, however, Republicans in the Senate watered down the language addressing the loophole before sending the bill to Governor Taft.
For his part, Governor Ted Strickland (D) is standing by his campaign pledge (unlike his Republican predecessor on the issue of concealed carry), telling The Dispatch through spokesman Keith Dailey that he is willing to close off the records, because of the "possibility that criminals could obtain that information, and with that knowledge, seek to do harm to an individual."
If Ohio's Republican legislators wish to retain their majority in the legislature, they need to start walking their talk. Unlike the days of Bob Taft, they now have a governor ready and waiting to sign every piece of good pro-gun legislation that hits his desk. The explanation for why watered-down, not-a-true-fix fixes are proposed and adopted by the GOP legislative leadership can no longer be laid on the Executive office doorstep.
When the next newspaper publishes another list of confidential information about CHL-holders, Ohioans will know for certain who is to blame. With the election year right around the corner, and with the GOP protecting a razor-thin majority in both chambers of the General Assembly, their lack of action on this issue is as difficult to comprehend as, well, all of their tortured, Clintonian definitions of the word "copy".
Chad D. Baus is the Buckeye Firearms Association Vice Chairman and a Member of the Fulton County, Ohio Republican Central Committee.