This blog is designed for general informational purposes only and should not be construed to be legal advice. If you have further questions, we recommend reaching out to an attorney. You can reach out to us with additional questions at info@fairshake-els.org.
Written by Jordan Raudins, Fair Shake Legal Intern
Data centers are quickly becoming one of the most significant modern environmental threats.
Not only do they have the capacity to use massive amounts of water and add stress to electric grids, but they also carry with them the potential to indirectly harm nearby ecosystems, human health, and air quality. A steady increase in energy demand over time has resulted in the need to build more of these centers.
There has been a trend of smaller, rural communities being targeted for data center construction because the land is often larger, cheaper, and there is quicker and more electric grid access. But as the rate of data center construction has increased, so has local opposition and organization. However, by the time many of these communities discover and mobilize against a data center, the local government has already allowed the project to commence, leaving communities feeling blindsided by the very authority that is meant to represent their interests.
Ohio has laws in place aimed at promoting good governance and transparency to ensure citizens are informed about what is happening in their communities and can participate in the process, rather than be at the mercy of public officials. These laws cover general ethics, public records, and open meetings. However, they are only enforceable by individual citizen action. If violations are suspected that would result in problems like data center construction against local sentiment, citizens should be aware of their options for enforcement to fight back and ensure government transparency in their communities.
Ohio Public Records Act
Section 149.43 of the Ohio Revised Code, also known as the Ohio Public Records Act (“OPRA”), requires that all state and local government offices maintain records and make them available upon request. OPRA allows any person to request to inspect or obtain copies of public records from a public office that maintains them. In doing so, the requester does not have to provide the request in writing, a reason for the request, or their identity. Most government bodies and agencies have a records custodian who can be found through their website. If it is not apparent who manages the office’s public records requests, a requester should reach out to their legal department or other staff to find the appropriate contact.
It is crucial that a request must be specific enough for the office to reasonably identify the records and it may be denied if it is unclear. If it is denied, the office must explain how its records are organized and maintained so the requester may revise their request. OPRA also requires offices have publicly available retention schedules, and a request can also be denied if the record was destroyed in accordance with the schedule. The office is not required to produce or create records that do not exist.
It should be noted that there is no fixed deadline by which offices must produce records following a request. Ohio law only requires that the records must be produced “within a reasonable period of time,” which courts tend to lend significant deference to this standard.
Certain public records are exempt from OPRA due to various constitutional provisions, statutes, common law, or administrative codes and regulations. It is up the public office the record is requested from to decide whether to release exempt records unless other laws explicitly prohibit it. If the office chooses not to release the record, only the parts that contain the information clearly covered by the exemption may be withheld and their notice of denial must cite the appropriate supporting legal authority. If documents are requested that do not fall under an exemption, and they were clearly and identifiably requested, these records should be able to be make available for.
Filing public records Complaints
OPRA is enforced by individual citizens. If a violation is suspected, a requester must first serve a complaint on the public office claiming their failure to comply with the law in one of the following ways:
Failure to respond to a request in a timely manner
Withheld inspection or delivery of records
Acting in bad faith regarding records
Failure to comply with other specifics of OPRA (e.g. lack of existence of or compliance with retention schedule requirements)
The Ohio Court of Claims provides a standard form to file this complaint. After receiving the complaint, the office has three (3) to five (5) business days to address the issue. If the office fails to address the issue within this timeframe, the requester can then file either a complaint for specific litigation in the Court of Claims or a mandamus action. Before being allowed to file either action, the requester must file a statement asserting that they served the previous complaint on the office.
Court of Claims - If there is a single, distinct, and identifiable legal dispute that may be resolved between parties, a denial should be challenged in the Court of Claims through specific litigation. If a requester is successful in this action, the public office may be ordered to pay the filing fee and other costs resulting from bringing the action, but not attorney fees or other monetary relief.
Mandamus Action - Alternatively, if the desired outcome is to demand the performance of a mandatory and legally required duty under OPRA, that can be achieved by filing a mandamus action. If a requester is successful in this action, they may be entitled to an award of all court costs, attorney fees, and/or statutory damages.
Using public records for Accountability
OPRA may be a useful tool for enforcing government accountability in the context of data center construction if:
There is a lack of documented deliberation or process before major actions
It is suspected that decisions regarding project approval are made behind closed doors
An office refuses to produce records relating to the project that should exist according to its retention schedule
Ohio Open Meetings Act
Section 121.22 of the Ohio Revised Code, the Ohio Open Meetings Act (“OOMA”), requires public bodies to take official action and conduct all deliberation of official business in open meetings that the public may attend. For regular meetings, public bodies must provide advance notice of meetings using a “reasonable method” that state when and where a meeting will take place under OOMA. For special meetings, notice of time, place, and purpose must be given at least twenty-four (24) hours in advance and discussion is strictly limited to those topics outlined in the statute. Emergency meetings require immediate notification of time, place, and purpose, but can only be used for true emergencies requiring immediate official action. A public body must take full and accurate minutes of all meetings and make these minutes available to the public.
An executive session a part of either a regular or special open meeting from which the public can be excluded, and they are exempt from general OOMA provisions. They can only be held for specific reasons outlined by section (G) of the statute and no formal action, such as voting or reaching a collective decision may be made in them. Minutes from executive sessions may only contain general subject matter, but any public records considered in the session may be otherwise accessible through OPRA.
Like OPRA, OOMA is enforced by individuals. If a violation is suspected for any of the following reasons, an injunction or mandamus action may be filed:
Failure to provide notice or proper notice of a public meeting
Failure to take proper minutes at a public meeting
Failure to make minutes publicly available
Decisions being made or predetermined outside of public meetings
Filing open meetings Complaints
Injunction - An injunction must be filed within two (2) years after the date of the alleged OOMA violation. If granted, it compels the members of the public body to comply with the law, refrain from prohibited behavior, and to lawfully conduct meetings going forward. The public body also must pay a fine of five hundred (500) dollars, court costs, and reasonable attorney fees to the person who filed the action. A member of the public body who later knowingly violates the injunction also risks removal from office.
Mandamus Action - Alternatively, a mandamus action can compel a public body to provide proper meeting notices going forward. Unless adopted in an open meeting with proper notice, any resolution, rule, or formal action is considered invalid. The public bodies failure to approve meeting minutes, however, does not invalidate its actions taken during a meeting. To remedy a violation, it is permissible for public bodies to reconsider the same matter in a proper open meeting.
Using Open Meetings for Accountability
OOMA may help enforce government accountability if:
It appears decisions about data centers are made outside of public meetings
No meeting minutes are taken at meetings held
The public body failed to give proper notice for a meeting
Ohio Ethics Laws
Ohio Ethics Laws establish the state’s ethical standards for public officials and employees. The laws impose various requirements for personal financial disclosure, certain unethical conduct such as conflicts of interest or unjust compensation, and general ethics oversight. The Ohio Ethics Commission (“the Commission”) enforces Ohio Ethics Laws and has jurisdiction over Ohio’s Executive branch. This scope includes public officials and employees at the state and local level, but not general assembly members, judges, and their staffs.
Suspected ethics violations are reported by calling the Commission. After a confidential conversation, the Commission will determine if the concern falls within their authority and, if it does, they will mail an allegation packet including a complaint form, overview of authority of the Commission, and information about the process. Depending on the specific violation, penalties can include misdemeanor charges, forfeiture of office or employment, prohibition from public contract with any public agency for a period, or the payment of fines or costs incurred to investigate and prosecute the case.
Using Ethics Laws for Accountability
Ethics laws may be useful if there are suspicions that public officials have engaged in unethical behavior, such as conflicts of interest or bribery, in approving or fast-tracking data centers. Ongoing research is being conducted on the legality of public officials and government employees signing non-disclosure agreements in the context of data centers.
Still have questions? Reach out to us at: info@fairshake-els.org.
