Public records take many shapes and forms
When considering public records, you may be inclined to think of hardcopy documents collecting dust in a locked storage room. If that were true, a public records request might seem benign in that any public record responsive to the request would have had, by its hardcopy nature, much thought and consideration put into it prior to reaching final form and being subject to public release. If public records were so limited in scope, there would be less concern or risk of airing “dirty public laundry” when responding to a public records request. However, as you might guess, a public record currently takes many shapes and forms beyond traditional hardcopy documents.
What constitutes a public record in Ohio?
Not surprisingly, the definition of a public record forces us out of dusty back rooms and into the modern world of digital communications. While not surprising that a public record goes beyond traditional pen to paper missives, it is surprising how far-reaching and encompassing the statutory definition of a record is. In Ohio, records include any document, device or item, regardless of physical form or characteristic, including an electronic record 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.i Let’s break that down.
The first element of the definition generally contemplates the form of the record. Ohio recognizes a wide range of forms that may ultimately be records. Emails,ii videos,iii maps, blueprints, photographs, voicemail messages and text messagesiv have all been found to constitute records subject to public records requests. Presently, there is no distinction between emails and text messages sent from publicly-issued devices and those sent from privately-owned devices.v Emails and text messages from either can be considered public records. The main import here is that even seemingly innocuous emails and texts can, and often do, become public record pursuant to a public records request even though they were sent from a privately-owned device.
The second element considers whether the record at issue was created or received by, or coming under the jurisdiction of, any public office. More times than not, it will be fairly clear whether this criteria is met. However, it is important to note that a record does not have to be in the public office’s physical possession to be under its jurisdiction. For example, requested stadium cost-overrun records were considered to be within the jurisdiction of the public office and were public records regardless of whether they were in the possession of the public office or the construction companies.vi Additionally, records in possession of an independent certified public accountant were considered to be within a county auditor’s jurisdiction and therefore subject to inspection.vii
The third element centers on the content of the record as opposed to the medium on which it exists. Again, the records requested must document the activities of a public office in order to be considered a public record. Examples of items that have been found not to document activities of a public office include public employee home addresses kept by an employer solely for management convenience, retired municipal government employee home addresses kept by the municipal retirement system, mailing lists, personal calendars and appointment books, juror contact information and other juror questionnaire responses, personal information about children who use public recreational facilities, personal identifying information in housing authority lead poisoning documents, and non-record items and information contained in employee personnel files.viii Names and contact information of licensees, contractors, lessees, customers and other non-employees of a public office have been found to be records when they document the formal activities of the public office at issue.ix All three elements must be satisfied in order for the record at issue to meet Ohio’s statutory definition.
Are there exceptions to the definition of public record in Ohio?
So long as a record satisfies these three broad elements, it will be considered a record for purposes of a public records request unless it falls within a statutory exemption. The statutory exemptions available are limited and Ohio courts have interpreted the exemptions narrowly, ultimately favoring disclosure. The Ohio Public Records Act contains a list of documents and items that are removed from the definition of “record.” They include, but are not limited to, medical records, probation/parole/post-release control records, records pertaining to juvenile abortion proceedings, records pertaining to adoption proceedings, trial preparation records subject to attorney client privilege, confidential law enforcement investigatory records, records containing confidential mediation communications, DNA records, inmate records, intellectual property records, donor profile records, ODJFS records, records containing information pertaining to the recreational activities of minors, records containing personal information (social security number, federal tax identification number, driver’s license number, financial or medical account number, etc.) and records concerning claims for payment of health care.x
If a public record contains exempt information, the public office or the person responsible for the public record must make available all of the information within the record that is not exempt. Additionally, the public office or the person responsible for the public record must notify the requester of any redaction or make the redaction plainly visible.xi Practically speaking, exemptions are more likely to carve out exempted information (by way of redaction) as opposed to shielding the entire record from production.
The “public record” has evolved beyond traditional shapes and forms. Those acting in the public sphere will do well to recognize that even a seemingly harmless text message to a colleague could end up in the public record and subject to public scrutiny. Before hitting “send,” public employees and officials will want to specifically consider the potential effect of that communication in the hands of someone else.
i R.C. 149.011 (G)
ii State ex rel. Glasgow v. Jones, 119 Ohio St.3d 391, 2008-Ohio-4788, 894 N.E.2d 686, ¶ 21; Sinclair Media III, Inc. v. City of Cincinnati, Ct. of Cl. No. 2018-01357PQ, 2019-Ohio-2623, ¶ 14
iii State ex rel. Harmon v. Bender, 25 Ohio St.3d 15, 17, 494 N.E.2d 1135 (1986)
iv Sinclair Media III, Inc. v. City of Cincinnati, Ct. of Cl. No. 2018-01357PQ, 2019-Ohio-2623, ¶ 14; Cincinnati Enquirer v. City of Cincinnati, Ct. of Cl. No. 2018-01339PQ, 2019-Ohio-1613.
vi State ex rel. Cincinnati Enquirer v. Krings, 93 Ohio St.3d 654, 660, 2001-Ohio-1895, 758 N.E.2d 1135
vii State ex rel. Mazzaro v. Ferguson, 49 Ohio St.3d 37, 39 (1990)
viii Internatl. Union, United Auto., Aerospace & Agricultural Implement Workers v. Voinovich, 100 Ohio App.3d 372, 378, 654 N.E.2d 139; State ex rel. McCaffrey v. Mahoning Cty. Prosecutor’s Office, 133 Ohio St.3d 139, 2012-Ohio-4246, 976 N.E.2d 877, ¶ 33; State ex rel. Beacon Journal Publishing Co. v. Bond, 98 Ohio St.3d 146, 2002-Ohio-7117, 781 N.E.2d 180, ¶ 51; State v. Carr, 2d Dist. Montgomery No. 28193, 2019-Ohio-3802, ¶ 22; State ex rel. McCleary v. Roberts, 88 Ohio St.3d 365, 369, 2000-Ohio-345, 725 N.E.2d 1144; R.C. 149.43(A)(1)(r); State ex rel. O’Shea & Assocs. Co., L.P.A. v. Cuyahoga Metro. Hous. Auth., 131 Ohio St.3d 149, 2012-Ohio-115, 962 N.E.2d 297, ¶ 36.
ix State ex rel. Cincinnati Enquirer v. Jones-Kelly, 118 Ohio St.3d 81, 2008-Ohio-1770, 886 N.E.2d 206; State ex rel. Carr v. City of Akron, 112 Ohio St.3d 351, 2006-Ohio-6714, 859 N.E.2d 948, ¶¶ 41-43; State ex rel. Harper v. Muskingum Watershed Conservancy Dist., 5th Dist. Tuscarawas No. 2013 AP 06 0024, 2014-Ohio-1222, ¶ 4; 2002 Ohio Op. Att’y Gen. No. 030, pp. 9-10; State ex rel. Cincinnati Enquirer v. Daniels, 108 Ohio St.3d 518, 2006-Ohio-1215, 844 N.E.2d 1181, ¶¶ 14-17.
x See generally R.C. 149.43(A)(1)
This is for informational purposes only. It is not intended to be legal advice and does not create or imply an attorney-client relationship.Download PDF