It is no secret that board of education members and school employees often communicate with one another through their personal cell phones. However, board members and employees rarely consider that these private text messages could potentially be disclosed to the public. Two recent decisions have highlighted the need for board members and school employees to proceed with caution as these text messages may be considered public records subject to disclosure upon request.
On May 15, 2019 a special master determined that a school district did not deny a requester public records when it declined to provide her with the cell phone call and text detail logs of particular district employees. (Paule v. Woodmore Local Schools, 2019-Ohio-2625.) The requester in this case argued that the administrators conducted district business through calls and texts with their personal cell phones that the district paid for. The special master found the district did not require the administrators to provide copies of their wireless bills or expense reports related thereto, and therefore had no obligation to disclose documents that did not exist and were not in their possession.
The special master also went on to conclude that the call and text message logs were not records subject to disclosure because a “record” is defined as
Any document, device, or item, regardless of physical form or characteristic, *** 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.
R.C. 149.011(G). The special master stated that there was no evidence that the district required their administrators to document their cell phone usage or that this usage information would document the organization, functions, policies, decisions, procedures, operations, or other activities of the district. Therefore, the personal cell phone call and text detail logs were not records subject to disclosure.
However, shortly after this report and recommendation was handed down, a similar case reached the Ohio Court of Claims. In this case, the presiding Judge concluded that the text messages on personal cell phones of city council members were subject to the Public Records Act. (Sinclair Media III, Inc. v. Cincinnati, 2019-Ohio-2623) In this case, the plaintiff requested text messages of particular public officials in which the employment status of the city manager was discussed. The city argued that the text messages did not meet the definition of a “record” subject to disclosure and that the messages were not “kept by” a public office because they were located on the personal cell phones of the city council members.
In rejecting the city’s argument, the court noted that Ohio courts generally treat text messages and emails sent by public officials in the same manner as other records, regardless of whether they are on privately-owned or publicly-issued devices. The issue is not whether the text messages were sent or stored on personal devices, but whether they document the functions, policies, procedures, operations, or other activities of the city. The court determined that the text messages reflecting on the employment decisions of public offices clearly document the operations and activities of that office. Therefore, the text messages in this case were public records subject to disclosure.
In each of these cases, the decisions focused on whether or not the messages document the functions, policies, procedures, operations or other activities of the public office. The key is the content of the messages not the device on which they are sent. If the messages document the functions, policies, procedures, operations or other activities of the school district, these messages could be subject to a public records request even if located on a personally owned device. As a result of these decisions, school districts should inform and educate their board of education members and employees that their text messages could be subject to disclosure depending on the content of the message. Boards of education may need to update their current records and retention policies to ensure compliance in accordance with these decisions.