From The Enquirer
When a public official in Ohio sends a text about official business on a phone, the text is a public record and can be requested under the state's Open Records Law, a state judge has ruled for the first time. The judge ruled such texts are public no matter if they are made on a personal, privately-paid device.
“The ruling makes it clear that the platform elected officials use to discuss official business makes no difference – a public record is a public record,” said Beryl Love, executive editor of The Enquirer. “Text messaging can’t be used to side-step accountability to the public.”
Over the years, The Enquirer and other media outlets have sought emails from personal accounts that discuss city business, with the city routinely saying text messages and emails on private email accounts were not public records.
The issue came to the forefront in 2018 after five Cincinnati council members conducted illegal meetings via text message. The texts and additional emails among the council members drew lawsuits from The Enquirer and a private citizen aligned with the group Coalition Opposed to Additional Spending and Taxes (COAST).
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The city last week released the texts to settle a separate case that the text meetings violated Ohio's Open Meetings Law.
In a ruling Wednesday, Court of Claims Judge Patrick McGrath noted that an arbitrator or special master had decided that The Enquirer's initial request for the texts was too broad, but also decided city officials failed to give The Enquirer a path to revise the request as required by Ohio law.
"The Court of Claims decision is significant because it establishes that text messages that discuss public business are public records under Ohio law," said Jack Greiner, a lawyer for The Enquirer. "Some public bodies have argued that they are not solely by virtue of their format. This case makes it clear that argument is incorrect.
"Coming on the heels of the settlement last week, which essentially established an exchange of text messages among a quorum of Council is a public meeting, this decision greatly enhances the public’s right to know.”
Specifically, the arbitrator ruled that "storage in a personal, privately-paid cell phone did not automatically exclude a text message" from being a public record, as city lawyers had argued. The judge adopted the special master's reports, including conclusions of law.
The Enquirer case on texts was one of seven filed in October 2018 by the news organization in Ohio's Court of Claims for access to public records.
The Enquirer filed in the claims court under Ohio's relatively new system designed to streamline open records disputes. The cases went to immediate mediation as a way to avoid further legal actions.
The disputes involved several different city agencies that The Enquirer said had failed to respond to requests, delayed responses or offered incomplete records. At least one of the requests languished for nearly 18 months.
While declining to fill the requests, the city never cited any exemptions to the records law and never provided updates on the process.
Most of the seven cases subsequently have been resolved. One case, involving police body camera videos from September's Fifth Third Tower mass shooting, remains in arbitration.
Wednesday's ruling came during national Sunshine Week, emphasizing the American public's right to know under the First Amendment and laws designed to bolster it.