Baard Energy / Coal

Strickland Administration defies Ohio’s Public Records Law on Baard Energy documents

COLUMBUS — Ohio Governor Ted Strickland, the Ohio Department of Development and the Ohio Air Quality Development Authority are all defying Ohio’s Public Records Law over requests for information on the proposed Baard Energy coal refinery.

Catherine Turcer, Director of Ohio Citizen Action’s Money in Politics Project, filed public records requests to Strickland on March 5, Ohio Department of Development on February 22, and to the Ohio Air Quality Development Authority on April 5. None of the three has yet sent the identified documents.  On April 28, the Office of the Governor sent Turcer copies of 58 emails, none of which were responsive to the inquiry. All the emails were sent on dates outside the specified date range.

So far, 80 days have elapsed since the request to Gov. Strickland, 91 days for the Ohio Department of Development, and 49 days for the Ohio Air Quality Development Authority.

The Ohio Revised Code does not contain a set, required time period for responding to a public records request. Instead, according to Ohio Attorney General Richard Cordray’s authoritative Ohio Sunshine Laws Manual, the courts have interpreted the –

…requirement to provide ‘prompt’ production of records for inspection, and to make copies available in a ‘reasonable amount of time,’ as being ‘without delay’ and ‘with reasonable speed,’ with the reasonableness of the time taken in each case depending on the facts and circumstances of the particular request. These terms do not mean ‘immediately,’ or ‘without a moment’s delay,’ but the courts will find a violation of this requirement when an office cannot show that the time taken was reasonable.

• In State ex rel. Consumer News Service, Inc. v. Worthington City Board of Education (2002), the court found that the respondent’s six day delay when providing responsive records was neither prompt nor reasonable.
• In Wadd v. City of Cleveland (1998), the court found that a thirteen to twenty-four day delay to provide access to accident reports was neither prompt nor reasonable.
• In State ex rel. Warren Newspapers, Inc. v. Hutson (1996), the court found that the police department taking four months to respond to a request for “all incident reports and traffic tickets written in 1992” was neither prompt nor reasonable.

Baard Energy wants more secrecy

Officials from Baard Energy and the Columbiana County Port Authority were scheduled to meet with Ohio Department of Development officials on March 18, 2010.  On March 12, Tracy Drake, Port Authority CEO, wrote Mark Barbash, Department of Development Assistant Director –

This email is in response to your request for more information regarding milestones, timeline and financing. Because Baard is concerned about sensitive financial or commercial information being released to those desperately seeking to kill the project using the FOI [Freedom of Information] process, they’d prefer to discuss the matter directly with ODOD [Ohio Department of Development].

In other words, Baard Energy was urging Barbash to deliberately avoid creating public records in order to conceal his activities from public scrutiny. This would violate Ohio Revised Code, Section 149.40, which requires public officials to keep records –

…necessary for the adequate and proper documentation of the organization, functions, policies, decisions, procedures, and essential transactions of the agency and for the protection of the legal and financial rights of the state and persons directly affected by the agency’s activities.

and 149.43(B)(7), which states –

To facilitate broader access to public records, a public office or the person responsible for public records shall organize and maintain public records in a manner that they can be made available for inspection or copying in accordance with division (B) of this section.

We don’t yet know how Barbash responded to Baard’s urgings.

Paul Ryder, Organizing Director, Ohio Citizen Action