Status Report of Ohio Public Records Cases

Bricker & Eckler LLP
October 2005

In a dramatic and long-awaited ruling, a unanimous Ohio Supreme Court has declared that, in most instances, the home addresses of public employees are not “public records” subject to mandatory disclosure under Ohio’s Public Records Law (ORC 149.43). The case had been brought by a newspaper, the Columbus Dispatch, seeking names, home addresses, and salaries from the payroll records of state employees.

The Supreme Court found that the home addresses of all public employees (not just police officers, firefighters, and EMTs, who are specifically protected by the law) are ordinarily exempted from the definition of a “public record” because home addresses do not serve to document the “organization, functions, policies, decisions, procedures, operations, or other activities” of the public entity. The Court also rejected the argument that because home addresses had been provided to the Dispatch in the past, the state was required to continue providing them.

Under the ruling, home addresses may be “public records” in certain circumstances - for example, when the public entity enforces a residency requirement for its employees. (It should be noted that under this analysis, the home addresses of school board members would seem to be “public records” in every instance, since all board members are required to be district residents.)

It does not appear that the Court intended to create liability when home addresses are disclosed by public employers. In a footnote, the Court indicated that the disclosure of employee home addresses would not, in and of itself, constitute a violation of ORC Chapter 1347, a set of code provisions designed to ensure the accuracy and proper use of personal information maintained in public information systems.

The decision came in the case of State ex rel. Dispatch Printing Co. v. Johnson. Attorneys from Bricker & Eckler LLP assisted in the successful defense of the action.

Civil Forfeiture. A federal jury recently awarded $860,000 in punitive damages against the City of Akron for destroying public records in a federal employment case. Two employees sued the city for overtime pay and, in the course of discovery, learned that another city employee had destroyed certain files related to their overtime and compensatory time. The jury awarded the two employees $1,908 in overtime plus $1,000 “per record” destroyed in punitive damages pursuant to the Ohio Revised Code. The district court counted each individual form that was destroyed and assessed $860,000 in punitive damages. The City appealed to the Sixth Circuit Court of Appeals.

The Sixth Circuit asked the Ohio Supreme Court to define what constituted “one record” for purposes of the forfeiture provision under the Ohio Revised Code. The Ohio Municipal League and others filed amici briefs urging the Court to find that a record is a compilation of data, regardless of the data’s form or format. In other words, the City argued that its compensatory time record was properly counted as a single “record,” rather than the series of individual records used to compile the record that was destroyed. The case is awaiting decision by the Ohio Supreme Court on the issue of what constitutes a “record,” then will be decided on appeal before the Sixth Circuit. Kish v. Akron, United States District Court, Northern District of Ohio, Case No. 5:00CV 2047; Kish v. Akron, Ohio Supreme Court Case No. 2004-0738.)

Medical Information. The Ohio Supreme Court may decide another interesting public records case this year. The First Appellate District Court of Appeals ruled in late December that portions of lead-investigation reports completed by a city department of health were not subject to disclosure.

The City of Cincinnati argued that HIPAA and the public records law required the redaction of the personal medical information, even though the information did not pertain to medical diagnosis nor was it generated and maintained in the process of medical treatment.

The Appellate Court agreed with the City, and ruled that the blood test results for children living at particular addresses were not public records. An appeal is pending in the Ohio Supreme Court. State ex rel. Cincinnati Enquirer v. Adcock.