“Public records are the people’s records. The officials in whose custody they happen to be are mere trustees for the people.”
So said Judge Rufus Smith of the Superior Court of Cincinnati, Ohio, in 1901.
This is quoted by Thomas Moyer, currently the Chief Justice of the Ohio Supreme Court, in a press release he issued earlier this week where he somewhat defensively says that the rules that the Ohio judiciary is considering to balance between the right of access to public documents and the rights of privacy are not the open records disaster that (he notes) some Ohio newspapers are saying they are.
A few points to consider from Judge Moyer’s press release.
First, he is assertive in his reminder that the Ohio judiciary is not now, and never has been, subject to Ohio’s laws governing access to public documents. That law is the Ohio Public Records Act of 1963. According to Judge Moyer, the courts are not subject to that law because of the “constitutional principle of separation of powers”.
Second, he seems to be under the impression that Ohio’s judiciary can both cleave entirely to the full openness ideal set forth by Rufus Smith *and* balance that with considerations about individual privacy.
That seems clearly wrong. If one principle–the principle of access to public documents–is indeed absolute, then one can’t subject it to a balancing test with some other principle.
I’m not saying that the right of public access should be an absolute right but, rather, that Judge Moyer is off-base when he asserts that the proposed rules absolutely adhere to the principle of openness and then immediately notes that they are balanced with another principle–the right of privacy.