What Part of “Public” Do You Not Get?
In light of “potential” presidential candidate Hillary Clinton’s press conference yesterday (and I try to avoid politics, but seriously, it took her THAT long to come up with THAT response? Was the original draft not tone deaf and arrogant enough?), my friend Kimball Perry wrote this piece in today’s Cincinnati Enquirer. It’s a survey of the extent to which local officials use private e-mail to conduct public business. Kimball asked readers to answer a survey about the topic. In lieu of me responding to the polldaddy.com form, I offer this slightly longer response.
And it is this. If Ohio officials think they can avoid the Ohio Public Records Act by using their private e-mail, they are wrong. I cannot state that strongly enough. WRONG. REALLY, REALLY WRONG. So, let’s explain why. The Ohio Revised Code defines “records” at R.C. 149.011: “Records” includes any document, device, or item, regardless of physical form or characteristic, including an electronic record as defined in section 1306.01 of the Revised Code, created or received by or coming under the jurisdiction of any public office of the state or its political subdivisions, which serves to document the organization, functions, policies, decisions, procedures, operations, or other activities of the office.
Note that the definition focuses on who creates the record and what it concerns. Physical logistics don’t matter. So, if a public official creates a record that concerns public business, it’s a record. And that includes records created on a private server, a legal pad or an etch a sketch. R.C. 149.43 defines “public records” as: records kept by any public office, including, but not limited to, state, county, city, village, township, and school district units, and records pertaining to the delivery of educational services by an alternative school in this state kept by the nonprofit or for-profit entity operating the alternative school pursuant to section 3313.533 of the Revised Code.
Now, I suppose some public officials will seize on the words “kept by” and argue that e-mails on private servers that clearly constitute “records” under R.C. 149.011 aren’t “public records” under R.C. 149.43 because they aren’t “kept by” the public office. I have seen this argument advanced by at least one local school board. Now, putting aside for a moment the sheer cynicism inherent in this argument (“it can’t be a public record because I made sure to hide it from the public”), it is also pretty clear that this too is WRONG.
First, if the public official is maintaining the record, it seems to me a reasonable argument that the public office is maintaining the record. The “office” is not a living, breathing organism. It can only act through its employees. But in addition, the public official who tries that tactic is most likely going to encounter R.C. 149.351: All records are the property of the public office concerned and shall not be removed, destroyed, mutilated, transferred, or otherwise damaged or disposed of, in whole or in part, except as provided by law or under the rules adopted by the records commissions provided for under sections 149.38 to 149.42 of the Revised Code or under the records programs established by the boards of trustees of state-supported institutions of higher education under section 149.33 of the Revised Code. Those records shall be delivered by outgoing officials and employees to their successors and shall not be otherwise removed, destroyed, mutilated, or transferred unlawfully.
Note that R.C. 149.351 says “records”, not “public records.” So the e-mails that contain official business are the property of the public office, and if the public official does anything other than deliver them to the public office he or she (let’s call her Hillary for convenience) are liable for a civil forfeiture of up to $10,000.
Don’t say I didn’t warn you.