Responding to a cleveland.com public records request, county lawyers cited two sections of the Ohio Revised Code that they contend allows them to keep the draft a secret from taxpayers, an assertion disputed by an expert on Ohio's public records laws.
The county lawyers contend the draft is a "working paper" that is exempt from public scrutiny. One of the sections cited by the lawyers relates to the distribution of "publications intended for general public use" and makes reference to branches of state government, but not county governments.
Attorney David Marburger, who has written a book about Ohio's public records laws and has advised cleveland.com and The Plain Dealer on records issues in the past, called the county's secrecy claims "baloney."
Marburger said the statutes cited by the county do not apply to the draft. He said the draft audit is a public record because it represents a completed task, in this case the creation of a document worth circulating for feedback.
Cleveland.com sought the draft report in part because the county's IT Department and two of the department's top administrators have been a focus of an ongoing public corruption investigation by the Cuyahoga County Prosecutor's Office.
County Internal Auditor Cory Swaisgood began his audit of IT contracts last year as part of a routine review of county operations from July 2016 to June 2017. The audit was expanded to include all of 2017 after county officials learned of the corruption investigation.
Since January of this year, corruption investigators have served 13 subpoenas on the county, primarily seeking communications and information related to contracts in the IT Department and communications by IT Director Scot Rourke and IT General Counsel Emily McNeeley.
Budish placed Rourke and McNeeley on unpaid leave in April. On Wednesday, cleveland.com disclosed that McNeeley is now collecting pay for unused vacation and sick time. County officials said county policy allowed her to receive the pay after giving birth in June and becoming eligible for a leave under the federal Family and Medical Leave Act.
In a telephone interview, Swaisgood said his draft audit was sent to managers of the IT and Procurement departments nearly two months ago for their feedback, which is due back to him by Aug. 7. A final report is expected to be ready for the Audit Committee's Aug. 24 meeting.
The Audit Committee also declined to release the draft report. The seven-person committee includes five voting members, four of whom are private citizens appointed by Budish and approved by the County Council. The fifth voting member is Trevor McAleer, legislative budget advisor to the Council, who serves on behalf of Council President Dan Brady.
Budish and County Finance Director Dennis Kennedy serve on the committee as non-voting members.
Committee Chairman Michael Abouserhal, a retired certified public accountant, told cleveland.com that he consulted with three voting members of the Audit Committee regarding the records request and only McAleer, who believed Ohio law required the document's release, favored turning it over.
Abouserhal quoted the audit committee's charter as stating that "the "committee shall review and approve all significant findings in internal audit reports prior to their release to the public."
Asked if internal policy trumps state law, Abouserhal said, "It's a great question," but one that he was not sure he could answer. He said David Lambert, an assistant county prosecutor, advised the committee that "there was a possibility" a court might not deem the draft a public record.
While stating that he had not yet read the draft, Abouserhal said good "business reasons" exist for withholding the document, including that the draft "may change based upon the response from management," as well as from input provided by the committee.
Marburger disagreed. If the document is ultimately revised, he said, the revisions constitute a second public document.
©2018 Advance Ohio Media, Cleveland Distributed by Tribune Content Agency, LLC.
