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Public records destruction no substitute for judicial oversight

By DENNIS HETZEL Ohio News Media Association Published: June 14, 2017 12:00 AM

As a lobbyist for the Ohio News Media Association, I sometimes see things in politics that make me want to cry, but I've only teared up once in seven years.

That happened April 26 at a hearing of the House Community and Family Advancement Committee. A young African-American man from Columbus, Defonta Little, was the witness. He courageously shared a horrific story of false arrest after being misidentified as his twin brother. He spent weeks in jail. His brother's record keeps showing up as his. He testified that he lost a warehouse job and struggles to find work. Family members wept two rows in front of me. So did many on the committee. Others around me fought back tears.

I was particularly struck by the passion of the African-American legislators on the committee, Stephanie Howse and Bernadine Kennedy Kent. House Bill 64 was not an esoteric issue to them. They knew that Little's story was not unique, particularly in poor and minority communities. It was a point reinforced by several other expert witnesses.

HB 64 has bipartisan sponsors Rep. Kirk Schuring, a Republican, and Rep. Alicia Reece, a Democrat. In essence, the bill says that if people are falsely arrested, prosecutors must start a process in which all the court records and almost all other records related to the arrest would be destroyed. Courts are mandated to order the destruction. The legal term is "expungement."

You won't find a more well-intentioned bill among any of the several hundreds the Ohio Legislature is considering. So, why on earth would the Ohio News Media Association oppose the bill as written?

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First, while the bill has many good features, it only is a symptom of a larger problem that it may not solve. Ohio laws already allow for sealing records in many situations, though it can be time-consuming and expensive for the person who wants the record sealed. Sealed records can accomplish the same goal as expungement with a huge difference: the government isn't destroying evidence of its acts. Sealed records only are available in highly restricted circumstances, shouldn't become public and aren't supposed to be used against you.

However, other witnesses described a system badly broken. Government notification to agencies is too slow. Different agencies don't communicate. Private companies that do background checks sometimes aren't notified, or they're sloppy about disclosure.

Here's a parallel: Consider the impact of bad information that shows up on consumer credit reports and the headache involved in getting that fixed. Now, imagine applying for a job at a store and being rejected because a record falsely says you were arrested for armed robbery. Unfortunately, under HB 64, the same process failures could occur.

The problem with expungement, most urgently in the cases of false arrest, is that the government is shredding the evidence of its own mistakes. This is a huge concern, as the ACLU of Ohio has pointed out, in cases in which the practices and procedures of police officers are in question. The victims themselves may want these records preserved. Sometimes these records become relevant decades later. On the flip side, there are times when the government has a legitimate need to review records as well.

So, we have suggested some sensible changes to HB 64 and we urge Ohio lawmakers to comprehensively study and fix our record-sealing procedures.

This is a hot topic around the country, not just Ohio. There are at least three other Ohio bills right now that involve sealing or destruction of public records.

The goals couldn't be more honorable. Give people a better shot at a second chance. In the case of false arrest, don't re-victimize someone who already has been through an unfair, shattering experience. However, destruction of public records with inadequate judicial oversight is not the right answer.

Dennis Hetzel is the executive director of the Ohio News Media Association in Columbus and president of the Ohio Coalition for Open Government.


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