Download - Ohio’s Public Records Law and Text Messages · All email, text messages, and written correspondence, sent or received by the representative, “from the date of your service as

STEPHEN P. POSTALAKIS B L A U G R U N D , H E R B E R T , K E S S L E R , M I L L E R ,

M Y E R S & P O S T A L A K I S , I N C O R P O R A T E D 3 0 0 W E S T W I L S O N B R I D G E R O A D , S U I T E 1 0 0

W O R T H I N G T O N , O H I O 4 3 0 8 5 ( 6 1 4 ) 9 2 3 - 3 1 1 2

S P P @ B H M L A W . C O M

O H I O A S S O C I A T I O N O F C O U N T Y B O A R D S S E R V I N G P E O P L E W I T H

D E V E L O P M E N T A L D I S A B I L I T I E S 2 0 1 3 A N N U A L C O N V E N T I O N

Ohio’s Public Records Law and

Text Messages

Introduction

�  Public records means “records kept by any public office ….” See R.C. §149.43(A)(1).

�  County Board is a “public office.” See R.C. §149.011(A). �  “Records” are subject to the Public Records Act if they are

¡  “(1) documents, devices, or items, ¡  (2) created or received by or coming under the jurisdiction

of the public office, ¡  (3) which serve to document the organization, functions,

policies, decisions, procedures, operations, or other activities of the office.” State ex rel. Dispatch Printing Co. v. Johnson, 106 Ohio St.3d 160, 2005-Ohio-4384, 833 N.E.2d 274, ¶19; R.C. §149.011(G).

State ex rel. Glasgow v. Jones, 119 Ohio St.3d 391, 2008 -Ohio- 4788

�  Attorney requested the following records from state representative: ¡  All email, text messages, and written correspondence,

sent or received by the representative, “from the date of your service as such Representative, specifically including, but not limited to, any e-mails having as their subject matter Substitute House Bill 151 of the 127th General Assembly or discussions that led to the introduction of Substitute House Bill 151 or any predecessor bill.” ÷ Rep. Jones interpreted the request addressed to her to be limited

to records related to H.B. No. 151 or the general subject of divestiture of investments in Iran and Sudan.


�  Jones contended that a request for all e-mail messages, text messages, and correspondence sent to and from a public official is not a proper public-records request.

�  The Court agreed: ¡  “… we hold that insofar as Glasgow broadly sought all of

Jones's work-related e-mail messages, text messages, and correspondence during her entire tenure as state representative, his request was improper because it was overly broad. In essence, Glasgow's general request impermissibly sought what approximated a “complete duplication” of Jones's files.”

¡  Court then looked at records related to H.B. No. 151 and the divestiture of investments in Iran and Sudan.


�  Rep. Jones did not dispute that work-related emails were public records:

�  Court: ¡  “E-mail messages and correspondence are ‘documents,

devices, or items’ under the first prong of the definition of ‘records.’ More specifically, e-mail messages constitute electronic records under R.C. 1306.01(G) because they are records ‘created, generated, sent, communicated, received, or stored by electronic means.’ See R.C. 149.011(G), which includes ‘an electronic record as defined in section 1306.01 of the Revised Code’ as a ‘document, device, or item’ within the definition of ‘record.’”


�  Court held that the text messages were not “records.” ¡  The requested text messages …, however, are not records.

The evidence is uncontroverted that Jones's text messages do not document work-related matters. They are therefore not records subject to R.C. 149.43. Johnson, 106 Ohio St.3d 160, 2005-Ohio-4384, 833 N.E.2d 274, ¶25.

�  Interestingly, though, the Court also refused to state whether text messages would ever constitute a public record: ¡  “In so holding, we need not decide the issue of whether text

messages could generally constitute items subject to disclosure under the Public Records Act.”

Court decisions since 2008

� Have found no other Ohio case that addressed text messages under Public Records law. ¡ Given the definitions of “records,” “public

records,” including “electronic record,” it would appear that text messages would be “public records” if they are created or received by or coming under the jurisdiction of the public office, and serve to document the organization, functions, policies, decisions, procedures, operations, or other activities of the office.

Record Retention

�  Glasgow Court: ¡  Our decision in no way restricts a public office from

disposing of items, including transient and other documents (e.g., e-mail messages) that are no longer of administrative value and are not otherwise required to be kept, in accordance with the office's properly adopted policy for records retention and disposal. See R.C. 149.351. Nor does our decision suggest that the Public Records Act prohibits a public office from determining the period of time after which its e-mail messages can be routinely deleted as part of the duly adopted records-retention policy.

THANKS FOR ATTENDING!

QUESTIONS?







Physical Examinations

OAC 5123:2-1-02(I)

� (5) The county board shall maintain in a separate medical file a record of a physical examination current within sixty days of the date of hire (a physical examination completed within one year prior to the date of hire is acceptable). The county board may not require the applicant to pay the cost of a physical examination as a condition of employment.

The Law - ADA

� The ADA allows medical examinations only after an applicant has been given a conditional job offer.

� The ADA prohibits asking an applicant disability related questions prior to extending a conditional offer. ¡ Asking an applicant if they can perform the job

with or without a reasonable accommodation, or even asking them to demonstrate how they would perform the job is lawful.

The Law

�  Employer may require a medical examination after making an offer of employment to an applicant and before the applicant begins his/her employment duties, and may condition an offer of employment on the results of such examination, if all entering employees in the same job category are subjected to such an examination regardless of disability. See 29 C.F.R. §1630.14(b).

�  Such medical examinations do not have to be job-related and consistent with business necessity. However, if certain criteria are used to screen out an employee or employees with disabilities as a result of such an examination or inquiry, the exclusionary criteria must be job-related and consistent with business necessity, and performance of the essential job functions cannot be accomplished with reasonable accommodation. See 29 CFR §1630.14(b)(3).

The Other Law - GINA

�  Genetic Information Nondiscrimination Act of 2008 prohibits employers from using, or even acquiring genetic information.

�  “Genetic Information” includes family history, genetic tests, information about the manifestation of any disease, information about the person’s request for or receipt of genetic services, or participation in any clinical research that involves genetic information.

Both ADA and GINA Prohibit

�  Discrimination �  Harassment �  Retaliation �  Disclosure/Possession of health information �  It is easier to defend accusations of a violation if you

do not possess the information at all, and a complete physical examination would likely reveal the information.

So How Does a Board Comply With the Law?

�  Unless employee has a record of a physical examination in the past year, simply ask the physician to determine whether the employee can perform the essential functions of the job, providing a job description.

�  Also make certain the health care provider doesn’t give you health information you cannot have.

GINA Warning to Health Care Providers

�  The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of an individual or family member of the individual, except as specifically allowed by this law. To comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information. "Genetic information," as defined by GINA, includes an individual's family medical history, the results of an individual's or family member's genetic tests, the fact that an individual or an individual's family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual's family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services.

Use the GINA Warning when:

�  Requesting information from a health care provider: ¡  Physical examination upon hire ¡  For FMLA certification ¡  Fitness for duty testing ¡  Sick leave verification/investigation ¡  Drug testing

�  Best to use the “safe harbor” clause every time health information is requested.

�  For certain providers you use consistently (like a lab), you can send the notice periodically.

�  Put it on any forms you use to request the health information.

Questions?


OPERS and INDEPENDENT CONTRACTORS

STEPHEN P. POSTALAKIS Blaugrund, Herbert, Kessler, Miller, Myers

& Postalakis, Incorporated [email protected]

Ohio Association of County Boards

Serving People with Developmental Disabilities 2013 Annual Convention

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ORC §145.036

! On or before the last day of January of each year, each public employer shall transmit to OPERS a list of all individuals providing personal services who at any time during the preceding calendar year received compensation from the employer for which no contributions were deducted under ORC §145.47 because the employer classified the individual as an independent contractor or another classification other than public employee or any other reason. The list shall contain the name of the individual and any other information required by OPERS.

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ORC §145.037

! Modified by HB 59 (September 29, 2013) n  Not later than Thanksgiving, OPERS board was to

publish in at least eight newspapers of general circulation in Ohio notice of the right of an individual to seek a determination that he/she was a public employee.

n  Notice also shall be posted on the OPERS web site. n  A contract between a public employer and a business

entity shall state that all individuals employed by the business entity who provide personal services to the public employer are not public employees for purposes of this chapter.

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ORC §145.037

! Regardless of whether an individual actually receives notice put forth by OPERS, the request for a determination must be made not later than August 7, 2014, unless the individual can demonstrate to OPERS’ satisfaction through medical records that on that date the individual was physically or mentally incapacitated and unable to request a determination.

! OPERS shall deny a request received after September 29, 2013, if OPERS determines that the individual has had ten or more years of contributing service since the individual last performed the services that are the subject of the request.

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ORC §145.038

! Addresses contracts entered into after January 7, 2013. ! Upon engagement, public employer must inform the

individual of the independent contractor classification and that no contributions will be made to PERS.

! Not later than thirty (30) days after the services begin, the employer shall require the individual to acknowledge, in writing on a form provided by PERS, that the individual has been informed that the employer does not consider the individual a public employee and no contributions will be made to PERS.

! The employer shall retain the acknowledgement and immediately transmit a copy of it to PERS.

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ORC §145.038

! Regardless of whether the individual has signed the acknowledgement, an individual may request that OPERS determine whether he/she is a public employee for purposes of ORC Chapter 145.

! A request for a determination must be made not later than five years after the individual begins to provide personal services, unless the individual demonstrates to OPERS through medical records that at the time the five-year period ended the individual was physically or mentally incapacitated and unable to request a determination.

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ORC §145.38

! Governs employment of a OPERS retirant. ! Generally, a OPERS retirant can be employed

by a public employer. n  Different rules for an employee or an

independent contractor

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ORC §145.38

! Re-employment: n  A PERS retirant who has received a

retirement allowance for less than 2 months when employment commences shall forfeit the retirement allowance for any month the PERS retirant is employed prior to the expiration of the 2-month period.

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ORC §145.38

! Independent Contractor relationship: n  A PERS retirant who enters into a contract to provide

services as an independent contractor to the employer by which the retirant was employed at the time of retirement or, less than two months after the retirement allowance commences, begins providing services as an independent contractor pursuant to a contract with another public employer, shall forfeit the pension portion of the retirement benefit for the period beginning the first day of the month following the month in which the services begin and ending on the first day of the month following the month in which the services end.

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ORC §145.38

! A public employer that employs a OPERS retirant or other system retirant, or enters into a contract for services as an independent contractor with a PERS retirant, shall notify OPERS of the employment or contract not later than the end of the month in which the employment or contract commences.

! Any overpayment of benefits to a PERS retirant by the retirement system resulting from delay or failure of the employer to give the notice shall be repaid to the retirement system by the employer.

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ORC §145.38



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Questions ???

Thanks for attending!