On September 25, 2008, the Supreme Court of Ohio ruled in favor of a public official who was asked to produce copies of all e-mails, text messages and written correspondence she sent or received from work and home over a period of time spanning approximately six months. In State ex rel. Glasgow v. Jones, the unanimous Court ruled that: 1) the public records request was overbroad and unenforceable, and 2) the public official satisfied her duties under the Ohio Public Records Act by supplying materials, both before and after the suit was filed, that were relevant to the request.

The case arose when a Columbus attorney, Jeff Glasgow, made public records requests to Ohio Representatives Shannon Jones and Josh Mandel, who were co-sponsors of legislation to require Ohio’s public retirement systems to divest themselves of investments in companies conducting certain types of business in Iran and Sudan. The public records requests sought copies of all e-mails, text messages, and communications “including but not limited to” documents about the legislation during a specified time period and created from public or personal accounts.

Representative Jones produced a number of documents that related to the pending legislation and generally to the subject of divestiture of investments in Iran and Sudan. Most of the records initially produced were from Representative Jones’ public e-mail account or her office files. Only one e-mail string that was generated from Representative Jones’ private e-mail account, and was attached to a public briefing packet, was produced.

However, in response to a similar public records request made to the state retirement systems, Glasgow received copies of e-mails the Representatives sent to the retirement systems from home e-mail accounts. Glasgow filed a complaint for a writ of mandamus in the Ohio Supreme Court to force the Representatives to fully comply with his request for all e-mails, text messages and written correspondence they sent or received in the performance of their official duties during the specified time period. The case as to Representative Mandel was stayed because he was on active military service at the time, but continued against Representative Jones.

In deciding the case, the Supreme Court issued several holdings. First, the Court determined that the request was overly broad and ruled that Representative Jones properly limited her response to issues related to the pending legislation. Citing its earlier decisions, the Court ruled that the person requesting public records has a duty to “identify with reasonable clarity the records at issue” and has no right to “a complete duplication of voluminous files kept by government agencies.”

The Court also reaffirmed that e-mails, text messages and other correspondence are “public records,” but only if they are documents, devices, or items that were created, received or coming under the jurisdiction of the state agencies which serve to document the organization, functions, policies, decisions, procedures, operations, or other activities of the office. After the suit was filed, Representative Jones conceded that e-mail messages created or received in her private e-mail account that document her work-related activities in her capacity as State Representative were public records and produced those records. As a result of this concession, the Court did not address the issue of private e-mail accounts further.

However, the Supreme Court found that the text messages and other correspondence were not records. The Court found no evidence that Representative Jones’ text messages documented work-related matters. Implicitly underscoring the need for a good records retention schedule, the Court also wrote, in a footnote, that its decision did not prohibit a public office from disposing of transient items and other documents that were no longer of administrative value.

The Court denied Glasgow’s request for an award of attorney fees, holding that: “Because Glasgow’s mandamus claim lacks merit, i.e., the request for records other than those related to H.B. No. 151 (because it was overbroad), the request for text messages (because none were work-related), the request for correspondence (because Glasgow abandoned his claim), and the request for e-mail messages (because Glasgow has now received all of those related to H.B. No. 151), he is not entitled to attorney fees.” Finally, the Court also denied Glasgow’s request for statutory damages now available under the current version of the public records laws because the provision allowing such damages became effective on September 29, 2007 and could not be applied retroactively.

http://www.supremecourtofohio.gov/rod/docs/pdf/0/2008/2008-Ohio-4788.pdf