Jack Out of the Box blog

AGAIN, TEXT MESSAGES ARE PUBLIC RECORDS

The Ohio Court of Claims, via a Report and Recommendation from Special Master Jeff Clark, once again reminds public offices that e-mails and text messages are public records. And that is the case even if the text messages appear on private devices used by public officials.   The burden is on the public office to collect and archive those records.

The case involved a request to Kathryn Thalman, the mayor of St. Clairsville, Ohio.  A requester asked the Mayor to produce records having with a certain parcel of property and agreements with a developer of the property.  Included in the request were relevant text messages from or to specifically named public officials.  In responding to the request, the Mayor claimed to have provided all responsive records in the possession of the city.  The mayor noted, however, that additional responsive e-mails and texts “may or may not exist” on personal devices of former city employees.  Believing those records weren’t “public records” she apparently made no effort to retrieve them.

That was the wrong answer according to the Special Master.  It noted, “under these circumstances the court may order the public office to finally conduct a diligent review for responsive records in all locations where they may be kept by the listed employees.”

While this order came in a Report and Recommendation, and there are other steps that need to take place before it becomes binding, it’s worth noting.  We’ve evolved beyond paper.  Electronic records count as public records wherever they exist.  And just because it’s harder to gather these records, that’s no excuse for not attempting to do so.  Other Ohio cities should pay attention.