The Cincinnati Enquirer v. City of Cincinnati, 022219 OHCOC, 2018-01339PQ

Docket Nº:2018-01339PQ
Opinion Judge:JEFFERY W. CLARK Special Master
Party Name:THE CINCINNATI ENQUIRER, A DIVISION OF GANNETT GP MEDIA, INC. Requester v. CITY OF CINCINNATI Respondent
Case Date:February 22, 2019
Court:Court of Claims of Ohio
 
FREE EXCERPT

2019-Ohio-969

THE CINCINNATI ENQUIRER, A DIVISION OF GANNETT GP MEDIA, INC. Requester

v.

CITY OF CINCINNATI Respondent

No. 2018-01339PQ

Court of Claims of Ohio

February 22, 2019

Sent to S.C. Reporter 3/20/19

REPORT AND RECOMMENDATION

JEFFERY W. CLARK Special Master

{¶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.

Motion to Dismiss

{¶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).

Text Messages Are Capable of Being Public Records

{¶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...

To continue reading

FREE SIGN UP