Public Records Regulation and Challenges in Ohio

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Overview of Ohio's public records laws, including definitions, challenges, and recent legal cases regarding access to text messages of public officials. Discussions on the scope of public records, implications of personal devices, and judicial rulings on requests for text messages as public records.

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Public Records (Everyone s Favorite Topic) PIO 2019 Symposium October 18, 2019 Alex S. Armitage Associate Legal Counsel/Public Records Manager Ohio Department of Public Safety

Public Records Ohio Revised Code 149.011(G) Any document, device, or item, regardless of physical form or characteristic, including an electronic record as defined in section 1306.01 of the Revised Code; Created or received by or coming under the jurisdiction of any public office of the state or its political subdivisions; Which serves to document the organization, functions, policies, decisions, procedures, operations, or other activities of the office. Ohio Revised Code 149.43(A)(1) "Public record" means records kept by any public office Keptby means any record that is actually in existence and in the possession of the public office or person responsible for public records

Text Messages Sinclair Media III, Inc. v. City of Cincinnati (May 2019) Reporter requested: (1) all text messages from council members, the mayor, and city manager regarding the city manager s employment status. (2) Any text messages where votes on the city manager s employment was discussed. (3) And any text messages involving the so-called Gang of 5 in which the city manager s employment was discussed including any text messages in which is race is discussed. This was for a 6 week period of time.

Text Messages Ultimately, no records were produced and Sinclair Media filed an action in the Court of Claims. The Requester claimed that text messages on personal devices were not provided and were public records The City argued that the request was overly broad and that the records requested were not public records.

Text Messages Special Master ruled that the entire request was proper. The first request was sufficient under the law and the subsequent requests were not stand alone requests and were in fact subsets of the first request.

Text Messages Judge found: First request was proper. Second and third requests were found to be ambiguous and overly broad. Second and Third requests were read as separate, individual requests. Special Master read these requests to be subsets of the first, but the court disagreed.

Text Messages City argued that text messages on personal devices are not subject to the Public Records Act. Also, the City argued that text messages on personal devices are not records kept by a public office.

Text Messages Court found that the operative question was NOT whether the text messages were sent from or stored on personal or private devices, but whether they document the functions, policies, procedures, operations, or other activities of the City.

CLEIRs Confidential Law Enforcement Investigative Records Gannet GP Media v. Chillicothe PD, 2018-Ohio- 1552 February 15, 2018 Narciso v. Powell Police Dep t, 2018-Ohio-4590 October 22, 2018 Sutelan v. Ohio State Univ., 2019-Ohio-3675 - August 9, 2019

Pre-Investigation v. Investigation Case Similarities Cases focused on the information received by law enforcement after responding a call. Chronology of events are highlighted in courts reasoning. Essentially, cases focus on whether records are triggering/initiating investigations.

Pre-Investigation v. Investigation Each case, the Special Master highlighted: Chronology of the information entered/received Content (complainant's statement, witnesses on scene) Authorship ( initiating officer entered/received the information)