Hicks v. Union Twp., 2023-Ohio-874
The Twelfth District Court of Appeals (Brown, Butler, Clermont, Clinton, Fayette, Madison, Preble, Warren) recently ruled in a public records case that a township’s email and mail lists, used by the township for the publication of newsletters and other communications, were not public records because the lists did not “document the activities or operations of the office.”
The requester asked for the “the full email list used for township newsletters” and “the full mail list used for township newsletters.” After several exchanges between the requester and the township, during which the requester was repeatedly told that the lists were not public records and would not be produced, the requester filed suit, pro se.
The requester argued, in essence, that the township uses the lists to and keep citizens informed of the activities of the office. Thus, according to the requester, the lists document the functions and activities of the township.
The Court of Claims appointed a special master and the case was unsuccessfully referred to mediation.
The township administrator testified via affidavit that a third-party vendor facilitates the mailing of the newsletter and the mailing lists for the newsletter. The township also provides an opportunity for interested persons to subscribe and receive the newsletter electronically. On the township website, subscribers are asked to enter their names and email addresses to receive the newsletter. The township maintains the list, but it is used only for the administrative purpose of issuing the electronic newsletter.
The requester submitted an affidavit of a former township administrator, but it largely focused on the content and development of the newsletter over time. The affidavit confirmed how the lists were maintained. Based on the affidavit, the requester argued that the “requested information is essential to the ability of Requester to understand and form a critique of a specific function of the government, staffed and paid for with tax dollars.” The requester indicated he desired to obtain the lists to “evaluate the conduct of the newsletter program.” For example, the requester indicated he wished to learn to whom the newsletter was being sent (residences and businesses, or only residences), if there were any citizens being omitted, if there was an overlap of individuals receiving the newsletter by mail and email, how “well-saturated” the email list was, and whether the emails included “valid or bot accounts.”
The Court of Appeals reasoned that while the lists did constitute “documents, devices or items” which are “kept” by the Township, the third prong of the analysis, (i.e., that the record document the “organization, functions, policies, decisions, procedures, operations, or other activities” of the public office) was not met. The Court looked to precedents which held that simply because an item is received and kept by a public office does not transform it into a record. Home addresses have been analyzed in other contexts, such as requests for personnel files. The Ohio Supreme Court has held that “at best, home addresses represent contact information used as a matter of administrative convenience,” and that they “reveal little or nothing about the employing agencies or their activities.”
Furthermore, the Court found that the recipients of the newsletters, (who could be anyone, not just citizens) were not part of the decision-making process surrounding the newsletter and they do not assist the township in the performance of its functions. The Court applied essentially the same analysis to the hard copy mailing list.
What this Means for Your District
Not every record in the possession of the school district is a public record. The document must meet all three parts of the test in order to be a public record. Careful analysis is always required however. It would not be wise to categorically deny a request for a distribution list, for example, without first considering the nature of the list, what it is used for, how the persons on the list are placed there and for what purpose.