A Healthy Tan is Better Than Sunburn: Ohio's "Sunshine Law" And Nonpublic Collective Inquiry Sessions

• Author: David J. Barthel
• Position: J.D., Capital University Law School, 2005
• Pages: 251-296

A Healthy Tan is Better Than Sunburn: Ohio's "Sunshine Law" And Nonpublic Collective Inquiry¹ Sessions

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Introduction

Ohio's Open Meetings Act, known as the "Sunshine Law,"² requires "public officials to take official action and to conduct all deliberations upon official business only in open meetings unless the subject matter is specifically excepted by law."³ "Any person may bring an action to enforce this [statutory command],"⁴ and the public body⁵ that violates the Sunshine Law may be sanctioned.⁶

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The overarching justification for Ohio's Sunshine Law, and all open meetings legislation, is that a democratic society functions most effectively when its citizens have access to, and are informed of, the decisionmaking processes of its representatives.⁷ Government exists to serve the masses,⁸ not the secret, individual motives and peculiar ambitions of those in power.⁹ By requiring that meetings of public bodies be open to the citizenry, the Sunshine Law ensures that the populace is able to scrutinize and police the representatives and the processes by which it is governed.¹⁰ Indeed, James Madison declared that these principles formed the foundations of a society based on a popular form of government: "A popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or, perhaps, both. Knowledge will forever govern ignorance; And a people who mean to bePage 253 their own Governors, must arm themselves with the power which knowledge gives."¹¹ Open meetings legislation similar to Ohio's Sunshine Law has been enacted by the federal government,¹² all fifty states, and the District of Columbia.¹³ Such legislation has brought life into the principle that citizens in a democratic society must be granted the right to be fully informed not only of the final decisions made by public bodies but also of the deliberative process by which these decisions are reached-including the weighing and examining of ideas that culminate in official action.¹⁴ These laws, however, are heavily varied.¹⁵

Not all commentary on the actual effects of open meetings has been positive. The public's right to witness the deliberative processes of its representatives must be balanced with the right of the public body to perform its functions effectively and efficiently.¹⁶ Indeed, while open meetings legislation is primarily concerned with facilitating public scrutiny of the government's decisionmaking process,¹⁷ it is not concerned with granting citizens the power to make the decisions themselves. The drafters of open meetings legislation recognize that in various situations, the policyPage 254 reasons for limiting public access to meetings of public bodies outweigh the policy reasons for granting the public unfettered access to such meetings. For example, those who disrupt a public meeting may waive their right to attend and may be removed from the meeting.¹⁸ Moreover, Ohio's statute itself carves out a number of exceptions to which the Sunshine Law does not apply,¹⁹ implicitly acknowledging that public policy favors excluding the public from certain types of meetings.

In addition to the difficulties posed with balancing the right of public access with the public body's right to confidentiality, Ohio's Sunshine Law also poses interpretive challenges. In particular, the scope of Ohio's Sunshine Law is difficult to demarcate because the statute itself does not define the words "discussion" or "deliberations." Under Ohio's Sunshine Law, the only meetings that must be open to the public are those where the public body (1) engages in "any prearranged discussion of [its] public business ... by a majority of its members";²⁰ (2) "deliberates] upon official [public] business";²¹ or (3) "take[s] official action."²² Because the words "deliberations" and "discussion" are not defined in the statute, there is little statutory guidance as to which decisionmaking processes constitute "deliberations" or "discussion" such that the Sunshine Law is triggered and the public must be granted access to witness the processes.

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This lack of clarity in the meaning of "deliberations" and "discussion" is fertile ground for legal argument, as these words serve to delineate the boundaries between permissible and impermissible conduct of public bodies, and define the proper role of public bodies with respect to the citizenry which they serve. At what point on the continuum of a public body's decisionmaking process does the public body's actions shift into the realm of deliberations or discussion? For example, when a public body merely collects or gathers information to assist it in making decisions, is briefed by a university president or chairperson of the board on issues relating to its delegated duties, or engages in question-and-answer sessions with speakers who present information to the public body, must these sessions be open to the public because they can be characterized as deliberations or discussion of the public body?²³ Do "deliberations" and "discussion" require something more-additional mental processes where issues are weighed and examined or where public body members exchange views with one another-before the threshold of permissible nonpublic conduct is crossed and the public body is then said to have engaged in impermissible nonpublic deliberations or discussion? If these informational, briefing, question-and-answer, and other informal fact-gathering sessions (hereinafter, "collective inquiry"²⁴ sessions) do not fall within the command of the Sunshine Law such that the public can lawfully be excluded, what are the parameters within which a public body must conduct itself? Perhaps even more importantly, how can the public body assure the public that the sessions have not slipped into the realm of impermissible deliberative conduct if the public is not granted access to the sessions to police them?

This Article will critically analyze these primary questions: (1) Which actions by public officials constitute deliberations or discussion thus requiring that the public be granted access because the Sunshine Law hasPage 256 been triggered?; (2) As a matter of public policy, should Ohio's Sunshine Law be interpreted narrowly so that collective inquiry activities are deemed to fall just short of deliberations or discussion, or broadly, which pulls collective inquiry sessions within the ambit of deliberations or discussion, so that the Sunshine Law is activated and the public must have access?

Part I of this Article explores the meaning behind the labels "collective inquiry," "deliberations," "discussion," and "official action" by describing their roles in the decisionmaking process. It then places these terms in a real-life context by examining a recent controversy involving The Ohio State University Board of Trustees. Next, the narrow definitions of deliberations and discussion supplied by Ohio's appellate courts are discussed and contrasted with the trend toward a broader construction of the Sunshine Law as evidenced by its legislative history and by Ohio Supreme Court...