Peter ZawadskiThe Ohio Court of Claims has confirmed that text messages between public officials using personal devices can be public records.  Although the question has previously been open to interpretation, this decision clarifies the answer and serves as a warning for all public employees.

In Sinclair Media III, Inc. v. Cincinnati, a reporter issued a public records request to the city seeking all text messages for a six-week period that were sent from any city council member, the mayor or the city manager discussing the city manager’s employment.  When the city did not comply, the news outlet filed an action with the Ohio Court of Claims.

The city asserted that the request was ambiguous, overly broad, and that the records were not public records. Despite the city’s objections, the court found that because the request was limited to text messages sent by specific public officials on a specific topic and within a six-week time period, it was not ambiguous or overly broad.  The court also confirmed that the text messages of city officials concerning another official’s employment were public records because they were records created, received by or under the jurisdiction of the city, even though they were maintained on the personal, privately paid devices of city officials.

The court emphasized that the important question is:  Do the text messages about an employee document the functions, policies, procedures, operations, or other activities of the city?   The court found that they did, and it therefore compelled the city to provide the text messages.

So when it comes to responding to public records requests for text messages, maintaining objections will be much more difficult due to this decision.  Therefore, all public employees are urged to use caution when texting.  Even if the text is on a private device, and even if you think the text is insignificant or does not serve to document the functions, policies, procedures, operations, or other activities of your district, it is very likely a public record if it’s work-related.  In sum, whatever work-related texts you send, make sure you’re comfortable with a media outlet publishing those messages.

Peter Zawadski is an associate at Walter | Haverfield who focuses his practice on education law as well as labor and employment matters. He can be reached at pzawadski@walterhav.com and at 216-928-2920.

*An expanded version of this article appears in Crain’s Cleveland Business.

 

Wesley KretchBen ChojnackiAugust 3, 2020 

On July 29, 2020, the Supreme Court of Ohio decided Buddenberg v. Weisdack et al., 2020-Ohio-3832, an important case interpreting a provision of the Ohio Revised Code which imparts civil liability on persons who engaged in “criminal acts.”

Before Buddenberg, it was not clear whether a party could bring a civil lawsuit against a person for a “criminal act” if that person has not been convicted in a criminal proceeding. After Buddenberg, it is clear that an underlying criminal conviction is not a necessary predicate to bring a civil lawsuit against someone for a “criminal act” under R.C. § 2307.60.

Buddenberg arises out of a federal lawsuit alleging certain government officials violated anti-discrimination laws and committed “criminal acts,” including violating the plaintiff’s civil rights, which the plaintiff claimed exposed the defendants to civil liability under R.C. § 2307.60. Significantly, no defendants had been convicted of a crime. To properly adjudicate the claims predicated on R.C. § 2307.60, the federal court certified two questions for the Supreme Court of Ohio for determination:

  1. Does [R.C.] 2307.60’s creation of a civil cause of action for injuries based on a “criminal act” require an underlying criminal conviction?
  2. Is a criminal conviction a condition precedent to a civil claim pursuant to [R.C.] 2921.03?

Buddenberg holds that the answer to both questions is no. The Court reasoned that a plain reading of R.C. Section 2307.06 does not require proof of an underlying conviction. Rather, the statute demands only that a victim’s injury to person or property be caused by a “criminal act” of another. The Court soundly rejected the argument that the General Assembly’s use of the term “criminal act” equates to a requirement that a conviction be proven.  The Court applied a similar rationale in reaching the conclusion that a criminal conviction is not a condition precedent to a victim pursuing a claim for a violation of Ohio’s criminal intimidation statute found at R.C. Section 2921.03.

This decision will have important implications for public employees and officials. If you have questions regarding Buddenberg, the Public Law attorneys at Walter | Haverfield LLP are available to answer your questions.

Wesley M. Kretch is an attorney with Walter | Haverfield’s public law group. He has extensive experience representing public entities at trial and appellate levels in state and federal court. He can be reached at wkretch@walterhav.com or at 216.658.6216.

Benjamin Grant Chojnacki is a partner with Walter | Haverfield’s public law group who counsels municipalities, public entities and private corporations on all aspects of public law. He can be reached at bchojnacki@walterhav.com or at 216.619.7850.