Cincinnati Enquirer, of Gannett GP Media, Inc. v. City of Cincinnati
| Decision Date | 22 February 2019 |
| Docket Number | Case No. 2018-01339PQ |
| Citation | 2019 Ohio 969 |
| Parties | THE CINCINNATI ENQUIRER, A DIVISION OF GANNETT GP MEDIA, INC. Requester v. CITY OF CINCINNATI Respondent |
| Court | Ohio Court of Claims |
{¶1} Ohio's Public Records Act, R.C. 149.43, provides a remedy for production of records under R.C. 2743.75 if the Court of Claims determines that a public office has denied access to public records in violation of R.C. 149.43(B). The policy underlying the Act is that "open government serves the public interest and our democratic system." State ex rel. Dann v. Taft, 109 Ohio St.3d 364, 2006-Ohio-1825, 848 N.E.2d 472, ¶ 20. Therefore, the Act is construed liberally in favor of broad access, and any doubt is resolved in favor of disclosure of public records. State ex rel. Glasgow v. Jones, 119 Ohio St.3d 391, 2008-Ohio-4788, 894 N.E.2d 686, ¶ 13.
{¶2} On April 18, 2018, Reporter Sharon Coolidge made a public records request on behalf of requester Cincinnati Enquirer, a Division of Gannett GP Media, Inc. (Enquirer) to the council members of respondent City of Cincinnati that stated, in pertinent part:
I am writing to request that you produce communications or correspondence (including e-mails and text messages) between five council members: P.G. Sittenfeld, Greg Landsman, Tamaya Dennard, Wendell Young and Chris Seelbach.
{¶3} The time frame for this request is from Jan. 1, 2018 to April 30, 2018. (Complaint, Exh. A.) The Enquirer's counsel engaged in follow-up correspondence with the City (Id., Exh. B-D), but no records were produced.
{¶4} On October 5, 2018, the Enquirer filed this action under R.C. 2743.75, alleging denial of access to public records by the City in violation of R.C. 149.43(B). Following mediation that resolved the email portion of the request (Dec. 7, 2018 Entry), the City filed a response and motion to dismiss (Response) on December 17, 2018 regarding the remaining claim for production of text messages.
{¶5} The City moves to dismiss the complaint on the grounds that, 1) text messages of council members on a personal, privately-paid cell phone are not records of the City and are not kept by the City, and, 2) the request is vague and overly broad, and therefore unenforceable. In construing a motion to dismiss pursuant to Civ.R. 12(B)(6), the court must presume that all factual allegations of the complaint are true and make all reasonable inferences in favor of the non-moving party. Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190, 192, 532 N.E.2d 753 (1988). Then, before the court may dismiss the complaint, it must appear beyond doubt that plaintiff can prove no set of facts entitling him to recovery. O'Brien v. Univ. Community Tenants Union, Inc., 42 Ohio St.2d 242, 245, 327 N.E.2d 753 (1975).
{¶6} To constitute a public record subject to the Public Records Act, a document must be a "record" and must be "kept by" the public office at the time of the request. R.C. 149.43(A)(1); State ex rel. Sch. Choice Ohio, Inc. v. Cincinnati Pub. Sch. Dist., 147 Ohio St.3d 256, 2016-Ohio-5026, 63 N.E.3d 1183, ¶ 13. The City argues that text messages on personal, privately-paid cell phones are categorically excluded from the definition of both "records" and "public records." (Response at 3-5.)
{¶7} In State ex rel. Glasgow v. Jones, 119 Ohio St.3d 391, 2008-Ohio-4788, 894 N.E.2d 686, at ¶ 20, the Supreme Court stated that:
The requested e-mail messages, text messages, and correspondence are "records" subject to the Public Records Act if they are "(1) documents, devices, or items, (2) created or received by or coming under the jurisdiction of the state agencies, (3) which serve to document the organization, functions, policies, decisions, procedures, operations, or other activities of the office."
(Emphasis added.) (Citation omitted.) The Court then stated that:
The evidence is uncontroverted that Jones's text messages do not document work-related matters. They are therefore not records subject to R.C. 149.43. * * * In so holding, we need not decide the issue of whether text messages could generally constitute items subject to disclosure under the Public Records Act.
(Citation omitted.) Id. at ¶ 25. In all subsequent decisions known to the court, requests for text messages have been reviewed without any question that they are "records" if they meet the statutory definition. See e.g. State ex rel. Kesterson v. Kent State Univ., Slip Opinion No. 2018-Ohio-5110; State ex rel. Parisi v. Dayton Bar Assn. Certified Griev. Comm., 2017-Ohio-9394, 103 N.E.3d 179 (2nd Dist.); State ex rel. Philbin v. Cleveland, 8th Dist. Cuyahoga No. 104106, 2017-Ohio-1031; State ex rel. Cmty. Journal v. Reed, 2014-Ohio-5745, 26 N.E.3d 286, ¶ 4 (12th Dist.); State ex rel. Davis v. Metzger, 5th Dist. Licking No. 12-CA-36, 2013-Ohio-1699; State ex rel. Sinchak v. Chardon Local Sch. Dist., 11th Dist. Geauga No. 2012-G-3078, 2013-Ohio-1098, ¶ 6; Narciso v. Powell Police Dep't, Ct. of Cl. No. 2018-01195PQ, 2018-Ohio-4590, ¶ 32-33.
{¶8} As with public employee communications on paper, voicemail, email, or any other means by which information is recorded on a fixed medium, text messages are merely information vessels that may or may not contain public records. The City points to no inherent functional or legal distinction between email and text messages. The request at issue thus identifies communications that are records if their content meets the definition of "record" in R.C. 149.011(G). As with other media, their content would be analyzed in camera if the responsive items were ordered to be filed under seal.
The Complaint States a Claim That Requested Text Messages are "Records" and "Public Records"
{¶9} The definition of "records" for purposes of Chapter 149. of the Revised Code is:
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.
R.C. 149.011(G). The City concedes that text messages meet the first part of the definition as "electronic records." (Response at 4.) However, the City asserts that the Enquirer cannot show that any text message residing on a Cincinnati councilperson's personally owned device can meet the second part of the definition as "created or received by or coming under the jurisdiction of any public office." The City makes the related argument that a text message on a personal device is not "kept by" the public office - part of the definition of a "public record."1 Id. In both arguments, the City claims that items created, received, or kept by a public official are not thereby created, received, or kept by the public office that they serve.
{¶10} The City does not explain exactly how it creates, receives, or keeps records, other than through its officers and employees. In a related public records context, the Supreme Court stated that "a public office" includes its officers and employees:
Indeed, a public office cannot function without the employees and agents who work in that office, and records "directly used for protecting ormaintaining the security of a public office" must inevitably include those that are directly used for protecting and maintaining the security of the employees and other officers of that office.
State ex rel. Plunderbund Media, L.L.C., v. Born, 141 Ohio St.3d 422, 2014-Ohio-3679, 25 N.E.3d, ¶ 20. Likewise, written records exchanged between government employees must inevitably include those transmitted by any medium. I find that the complaint sufficiently asserts a claim for items "created or received by or coming under the jurisdiction of" the City of Cincinnati based on the request for "communications or correspondence (including e-mails and text messages) between" five council members.
{¶11} Although the request here is for items created and received by officials of a public office, I note that records not actually created or received by the public office can meet the second prong by "coming under the jurisdiction of" the office. R.C. 149.011(G). Records coming under the jurisdiction of an office may be obtained either from the public office or from a "person responsible for public records." R.C. 149.43(B)(1) through (9). The "person responsible" for the records may be an official within the public office, State ex rel. Consumer News Servs. v. Worthington City Bd. of Educ., 97 Ohio St.3d 58, 2002-Ohio-5311, 776 N.E.2d 82, ¶ 40, or an outside, private entity. State ex rel. Cincinnati Enquirer v. Krings, 93 Ohio St.3d 654, 657, 758 N.E.2d 1135 (2001).
{¶12} The City next asserts that the "Complaint should be dismissed because at least some of the requested text messages do not document the 'organization, functions, policies, decisions, procedures, operations, or other activities of the office.'" (Emphasis added.) (Response at 5.) This appears to concede that some of the requested text messages do meet the third prong of the definition. Further, the City argues only that the request is overly broad, and does not explain why particular text messages between these officials do not document the activities of the office. (Id.) Where responsive records include non-record material, the office may withhold or redact the non-record material while releasing the portions that are records. R.C. 149.43(B)(1). However, as with any withheld record, the City would argue this defense during review of the case on the merits, based on the evidence. See State ex rel. Dispatch Printing Co. v. Johnson, 106 Ohio St.3d 160, 2005-Ohio-4384, 833 N.E.2d 274, ¶ 11-12; State ex rel. Beacon Journal Publishing Co. v. Whitmore, 83 Ohio St.3d 61, 62, 697 N.E.2d 640 (1998). The fact that...
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