Sinclair Media III, Inc. v. City of Cincinnati
| Decision Date | 15 April 2019 |
| Docket Number | Case No. 2018-01357PQ |
| Citation | 2019 Ohio 2624 |
| Parties | SINCLAIR MEDIA III, Inc. D/B/A WKRC-TV Requester v. CITY OF CINCINNATI Respondent |
| Court | Ohio Court of Claims |
{¶1} On May 6, 2018, Reporter Angenette Levy made a public records request on behalf of requester Sinclair Media III, Inc. d/b/a WKRC-TV (Sinclair Media) to respondent City of Cincinnati's City Solicitor Paula Boggs-Muething:
(Complaint, Exh. A.) On May 25, 2018, Levy re-sent the request to the City Solicitor's Chief Counsel, Roshani Hardin. Hardin responded, "We will get that item assigned and provide you with the responsive documents." (Id.) On July 17, 2018, Levy sent a follow-up inquiry. (Id. at 1.) The City did not respond further.
{¶2} On October 11, 2018, Sinclair Media filed this action under R.C. 2743.75, alleging denial of access to public records in violation of R.C. 149.43(B). Following unsuccessful mediation, the City filed a combined response and motion to dismiss (Response) on December 17, 2018. On February 13, 2018, the City filed a supplemental response and documents. On February 19, 2019, Sinclair Media filed a reply. On March 22, 2019, the City filed a second supplemental response. The City has filed 132 pages of withheld text messages under seal.
Id. at ¶ 26. The public's right to access records of public officials is construed broadly:
The broad language used in R.C. 149.43 manifests the General Assembly's intent to jealously protect the right of the people to access public records. We are acutely aware of the importance of the right provided by the act and the vulnerability of that right when the records are in the hands of public officials who are reluctant to release them.
Rhodes v. New Phila., 129 Ohio St.3d 304, 2011-Ohio-3279, 951 N.E.2d 782, ¶ 21. 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.
{¶4} The City moves to dismiss on the grounds that, 1) text messages of council members on personal, privately-paid cell phones are not records of the City and are not kept by the City, and, 2) the request is in part overly broad and therefore improper. (Response at 2.) In order to dismiss a complaint for failure to state a claim upon which relief can be granted, it must appear beyond doubt that the claimant can prove no set of facts warranting relief, after all factual allegations of the complaint are presumed true and all reasonable inferences are made in claimant's favor. State ex rel. Findlay Publ. Co. v. Schroeder, 76 Ohio St.3d 580, 581, 669 N.E.2d 835 (1996). As long as there is a set of facts consistent with the complaint that would allow the claimant to recover, dismissal for failure to state a claim is not proper. York v. Ohio State Hwy. Patrol, 60 Ohio St.3d 143, 145, 573 N.E.2d 1063 (1991). However, a party does not state a claim under the Public Records Act when the request is for documents that are not public records. State ex rel. Steffen v. Kraft, 67 Ohio St.3d 439, 619 N.E.2d 688 (1993).
As used in the Public Records Act:
"Records" includes 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.
R.C. 149.011(G). This definition of records includes "an electronic record" as defined in section 1306.01 of the Revised Code:
"Electronic record" means a record created, generated, sent, communicated, received, or stored by electronic means.
R.C. 1306.01(G). Text messages - "a short message sent electronically usually from one cell phone to another"1 - easily meet the first part of the three-part definition, as an "electronic record." The second part of the definition is met whenever the message is created or received by or comes under the jurisdiction of any public office. Since "a public office cannot function without the employees and agents who work in that office,"State ex rel. Plunderbund Media, L.L.C. v. Born, 141 Ohio St.3d 422, 2014-Ohio-3679, 25 N.E.3d 988, ¶ 20, this includes text messages created or received by a public employee in their official capacity. A text message completes the definition of "records" if it satisfies the third requirement - to document the organization, functions, etc. of the office. Finally, a "record" is a "public record" where it is "kept by" a public office.2
{¶5} The City asserts that text messages on personal, privately-paid cell phones are categorically excluded from the definitions of records and public records. Sinclair Media asserts that text messages, like other text media, are records and public records whenever they satisfy the terms of the statutory definitions. Ohio case law uniformly accepts text messages as potential records. In Glasgow, 119 Ohio St.3d 391, 2008-Ohio-4788, 894 N.E.2d 686, at ¶ 20, the Supreme Court stated:
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." State ex rel. Dispatch Printing Co. v. Johnson, 106 Ohio St.3d 160, 2005 Ohio 4384, 833 N.E.2d 274, P 19; R.C. 149.011(G).
(Emphasis added.) The Court resolved the status of the particular text messages in Glasgow on their failure to meet the third part of the definition:
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. Johnson, 106 Ohio St.3d 160, 2005 Ohio 4384, 833 N.E.2d 274, P 25. 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.
Id. at ¶ 25. In all subsequent reported decisions, requests for text messages have been reviewed without any question that they are public records if they meet the statutorydefinitions: 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 Dept., Ct. of Cl. No. 2018-01195PQ, 2018-Ohio-4590, ¶ 32-33. Thus, as with paper, voicemail, fax, email, or any other means by which office communications are recorded, employee text messages can be public records. Cincinnati Enquirer v. Cincinnati, Ct. of Cl. No. 2018-01339PQ, 2019-Ohio-969, ¶ 6-8, including text messages on personal accounts and devices. Id. at ¶ 10-15. The City cites no case to the contrary.
{¶6} The implicit acceptance by Ohio courts of text messages as potential public records is consistent with express holdings in other states. See Toensing v. A.G., 2017 Vt. 99, 206 Vt. 1, 178 A.3d 1000 (); City of San Jose v. Superior Court, 2 Cal.5th 608, 389 P.3d 848 (2017) (); Nissen v. Pierce Cty., 183 Wn.2d 863, 357 P.3d 45, ¶ 11-34 (2015) (); Denver Publ. Co. v. Bd. of Cty. Commrs., 121 P.3d 190 (Colo.2005) (); O'Boyle v. Town of Gulf Stream, 257 So.3d 1036 (Fla.App.2018) (); City of Champaign v. Madigan, 992 N.E.2d 629 (Ill.App.2013) ().
{¶7} The Ohio Public Records Act provides that "[i]n adopting a public records policy under this division, a...
To continue reading
Request your trial