The City of Cincinnati last week asked its employees to take immediate steps to preserve text messages that discuss public business, even those messages created on a private device. Here’s an excerpt from a letter from the City Solicitor:

[P]lease do the following: Take immediate steps to preserve public records currently on your personal devices. Options include taking screen shots of text messages discussing City business and emailing them to your City email account. No City business-related text messages can be deleted from City or personal devices even if they pre-date the Court’s decision. Take immediate steps to ensure that the default settings on your personal devices will not result in the deletion of public record before the applicable retention period has lapsed.

The city’s new policy is at least partly a result of court cases filed in the Ohio Court of Claims by The Cincinnati Enquirer and WKRC-TV Channel 12 requesting copies of text messages under the Public Records Act. Our firm represented both outlets.

In The Enquirer case, the Court of Claims recently ruled that text messages concerning city business – even text messages transmitted on private devices – are public records, subject to Ohio’s Public Records Act. The city had taken the position that text messages, by virtue of their format, aren’t public records. It also contended that texts sent on a private device, aren’t “kept” by the city and aren’t subject to the Open Records Act. The Court of Claims correctly held otherwise.

The issue isn’t the format, it’s the content. If a public official creates a record (and a text message is unquestionably a record) and that record discusses public business it’s a public record. And it’s the public office’s duty to make sure that record gets retained.

Good for the city to react swiftly to the decision.

And in an atmosphere where political leaders, candidates and opportunistic lawyers rant and rave (inaccurately) about “fake news” it is good to know that local journalists are doing their job. Lots of kudos to The Enquirer and Channel 12 on this one.