Bollinger v. River Valley Local School Dist., 2020-Ohio-6637
A Special Master of the Court of Claims of Ohio has issued a decision in favor of a school district against a requester of records. The requester was a former employee who was terminated after a discipline investigation. As part of the investigation, the school district’s attorneys collected text messages from two students who were a part of the investigation. The attorneys reviewed the collected text messages and stored them but did not use all of them as part of the investigation because they had no investigative value.
The requester asked for “All communications (including ALL text message transcripts) collected by Douglas Duckett and/or any employee or representative of the River Valley Local School District from [two students] during the investigation that lead to the termination of Mark Bollinger’s contract and the issues reported to the Ohio Department of Education.”
The requester alleged that the text messages contained information that was contradictory or that would challenge the credibility of the witnesses or the investigation itself. The School Board turned over texts messages in its possession that it used in the investigation, but denied the request as to all of the text messages. The school district cited attorney-client privilege as well as that the remaining text messages that were not turned over did not constitute records, because they did not document the operations of the school district. A public record is defined to include any document or information in any form that is kept by a public office which documents the organization, functions, policies, decisions, procedures, operations, or other activities of the public office, here, the School Board.
Unrelated Text Messages Are Not Records
The Court ruled that while the School Board did possess the additional text messages withheld from the requester, and while the investigators acting on behalf of the School Board reviewed the additional text messages, they were not ultimately used to draw any conclusions or take any actions about the matter and therefore were not records subject to disclosure. “Even where a document is received, reviewed, and integrated into a topical office file, but is not used to document the office’s activities, it may not rise to the definition of a “record.”
As to the requester’s assertions that the texts could contain information that is contradictory or that diminishes the credibility of the report or the witnesses, the Court found that the appropriate place to assert those arguments would have been during his administrative appeal of the termination, where perhaps the additional texts could have been obtained through discovery. The only issue before the court here was whether the records constituted public records which were subject to disclosure, not whether the records would have helped him mount a defense to his termination. The court reviewed the additional texts (they were filed under seal so that the requester could not see them) and agreed with the School Board that they were not used in the investigation and therefore did not meet the definition of records.
Past Production Does Not Waive Assertion of Available Defenses
The requester also argued that because the School Board had voluntary disclosed some texts that were not relied on in the investigation, it could not now assert that the texts were not records and withhold them. The court disagreed, finding that voluntary production of records in the past does not stop a public office from later withholding the same type of records on the basis of a valid defense.
CAUTION is warranted regarding this particular aspect of the case as there are other court decisions which hold that a public office can waive an exemption for a particular record if it discloses the exempt record, especially to one whose interests are antagonistic to the public office. Here, the texts at issue were considered non-records, not exempt records, which is an important distinction.
The School Board asserted the withheld texts fall under the privilege because they were gathered in the course of an investigation conducted by its attorneys. The court disagreed with the board’s position, characterizing it as conclusory. The board failed to “identify and explain the nature of any legal issue for which the withheld texts were utilized.” All factual materials gathered in an attorney-led investigation are covered by the attorney-client privilege. Further, the court found that the School Board’s assertion that the requested documents were unrelated to the investigation report contradicted a necessary element of the attorney-client privilege – that the material pertained to the attorney’s provision of legal advice. In any case, the court found the texts to be non-records not subject disclosure, which rendered the attorney-client issue moot.
What this means for your District:
Records that are subject to disclosure are particularly defined by law and do not necessarily include all documents or information retained by a public office. However, records custodians should be careful in determining whether a document constitutes a record before denying a request. Particular care should be taken in asserting an exemption as these to have specific legal meanings which are narrowly interpreted in favor of disclosing the record. Successful claims against a school district can result in the payment of fines and attorney fees. Please consult an Ennis Britton attorney regarding your public records questions.