On March 13th, 2019, an Ohio Court of Claims Judge ruled that text messages sent by a public official regarding official business are public records and can be requested under Ohio’s Open Records Law. Such texts are subject to the law regardless of whether they are made on a personal device or a work device. This decision makes clear that public officials may not use text messages to circumvent open records laws.
This dispute arose in 2018 after five Cincinnati City Council Members, also known as the “gang of five,” were accused of conducting illegal meetings via text messages in violation of Ohio’s Open Meeting Act. The five City Council members admitted to breaking the law by having private text conversations regarding city business and then destroying records. This type of interaction by a majority of a city council or other legislative body could also violate the open meetings law. The city settled a lawsuit brought by a private citizen for $101,000.
The Cincinnati Enquirer also filed suit after the city denied its request for access to texts and emails from personal accounts that discuss official city business. The judge ruled in favor of the Enquirer, establishing that storage on a personal cell phone does not exempt text messages regarding official business from being a public record. Moving forward, public officials should be aware that text messages sent on a personal, privately-paid phone may be subject to Ohio’s Open Records law.
As a result of this decision, public entities need to educate their employees and elected officials about maintaining texts and other documents on a personal cell phone. In many situations, the text messages are considered public records and must be disclosed in accordance with the law. The documents need to be addressed in the records retention schedule and retained accordingly. Fishel Downey attorneys regularly provide legal advice and private training sessions on this topic. If you would like to schedule a session for your staff, contact us today at info@fisheldowney.com by email or phone at (614) 221-1216.