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COLUMBUS - Ohio Attorney General Marc Dann sided with law enforcement and concealed-carry gun advocates in an opinion prohibiting journalists from writing down, or in any way recording, the names of gun owners kept by county sheriffs.
Ohio law allows reporters to inspect records of concealed-carry permit-holders but prohibits them from obtaining copies of the records.
The attorney general opinion stated the ban on copying the records extends to a journalist walking out of a county sheriff's office with anything other than what he's committed to memory.
The legal opinion by the state's top law enforcement officer was recently issued after a request by the Trumbull County prosecutor for clarification of last year's change in the state's public records law to prevent a reporter from copying data on the issuance of permits to carry hidden handguns. "Because the only actions a journalist may take with respect to the names, counties of residence, and dates of birth described [in the law] is to see such information, we read the prohibition against a journalist's copying such information as applying to the reproduction of the viewed information by any means, including those you specifically mention - hand-copying, handwritten notes, and dictation," Mr. Dann wrote in a letter to the prosecutor.
The law, however, does not prevent a journalist from reproducing and publishing informa-tion that he retained in his head.
"I think a litigator is going to have a wonderful time challenging this," said David Goldberger, professor at the Ohio State University Moritz college of law and a specialist in the First Amendment.
"They're trying to prevent publication by preventing a reporter from recording or summarizing on a piece of paper," he said. "They say it can be published, but you can't separate that from the fact that, once [a reporter has] information that's been lawfully gathered with his or her eyes, it can't be written down in readable form. They're trying to have it both ways."
He said he believes it is unconstitutional to make material available to journalists but deny access to the general public.
Dann spokesman Leo Jennings said the opinion is a strict interpretation of the language of the law and that the attorney general did not use his influence to affect his staff's analysis.
"The plain language of the statute says you can't copy," he said. "You can't write things down and make electronic copies."
According to the Senate record, then-state Senator Dann, who had just been elected attorney general, was not present on the Senate floor on Dec. 13, the day the law passed the chamber by a vote of a 31-1. His spokesman, Leo Jennings, said Mr. Dann grudgingly supported the concealed-carry language as a condition of getting the larger open records law to which it was attached passed.
Bob Cornwall, executive director of the Buckeye State Sheriffs' Association, said the opinion clears up much of the confusion surrounding the law. Sheriffs will not have to make copies of permit information and would be able to create a template to place over the records to ensure that reporters see only what the law allows them to see - the names, counties of residence, and dates of births of permit holders.
"The sheriffs will have somebody stationed with the journalist to make sure all goes as it should," he said. "The opinion is clear. There can be no types of recording devices or notes of any kind taken."
He said the language of the laws and the attorney general's interpretation of it rule out dictation into a tape recorder or over a cell phone to another reporter.
When asked whether a reporter could repeatedly walk into the room to read some information and then out to make notes or pass the information along, he said, "I would imagine they could, but it would become pretty obvious after the second or third trip what was being done. The sheriff may stop it at that point as violating the spirit of the law."
The provision narrowing the journalist exception for otherwise private permit records was added to a much broader bill designed to better arm the public to enforce their access to public records.
Frank Deaner, executive director of the Ohio Newspaper Association, said he left negotiations over the bill with the understanding that the last-minute amendment did not apply to handwritten notes.
"House Bill 9 was so voluminous, and I think this comes down to sloppy, 11th-hour bill-writing," he said. "It's a semantic problem between 'photocopying' and 'taking notes.' A journalist's tool will always include taking notes."
Even legislative supporters of the open records law offered differing interpretations of what the language meant at the time they voted for the bill.
"We would like it if the media didn't have access to the information in the first place," said Jim Irvine, chairman of the Buckeye Firearms Association. "[Then-Gov. Bob] Taft insisted the media have access to the records. This battle goes back years.
"They've published the names of people who are hiding from people trying to kill them, the names of prison guards who are trying to protect themselves from ex-convicts hunting them down, the names of women who have restraining orders out against people trying to kill them," he said. "How does that do any good?"
Toby Hoover of the Ohio Coalition Against Gun Violence opposed the language. "Some of us would like to know if someone with a gun is going to be in our presence or around our kids," she said. "This is the only subject that they find necessary to keep secret. We can know just about everything else about someone, but not whether they have guns."
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