Sunshine law litigation is constantly ongoing in Ohio’s courts. Recently, three new cases expand our understanding of how open meetings and public records law is applied to public bodies.

Must a public entity teach citizens requesting records how to use its software?

The first opinion, issued in October 2022, illuminates the limits of a public office’s duty to explain how it keeps information when it uses software systems to store and access records.

A citizen, who also is an attorney, requested records from the Animal Welfare League of Trumbull County (AWL) about how many criminal complaints were filed by humane officers in any court for a period of seven years. (State ex rel. Huth v. Animal Welfare League of Trumbull County, Slip Op. No. 2022-Ohio-3582)

The request was denied, because the AWL did not maintain a list of that nature and would have had to search every investigation file to determine whether charges were filed. The AWL responded that the request was overbroad, and provided the citizen with the opportunity to revise the request. The AWL suggested limiting the request to specify individual people, addresses, or dates. The citizen filed a mandamus action asking for the AWL to explain to her how its records were stored, and requested statutory damages, attorneys’ fees, and court costs.

The court found that the AWL had provided additional information about how to revise the request for the records sought, and that was sufficient to meet its duty under the law. The citizen argued that the AWL did not tell her which software it used and how to search the software.

The court explained that the law “…requires a public office to explain how its records are organized, so as to help requesters formulate reasonable public records requests. The statute does not require public offices to offer tutorials on how their software systems work.” The court went on to note that even if the public office had explained it, the citizen would have had to have access to the AWL’s files, unless she was planning to ask the AWL to generate reports for her, which it is not required to do. The court denied the request for statutory damages, court costs and attorney’s fees.

Board committees and the Sunshine Law
The second opinion, issued in April 2022, sheds light on the Sunshine law as it relates to board committees. The facts of the case involve the creation of a land use committee by the Colerain Township Board of Trustees. (State ex rel. Mohr v. Colerain Twp., 2022-Ohio-1109, Ct. App. Hamilton, 2022) The purpose of the land use committee was to develop and make recommendations to the trustees. The trustees appointed seven voting and two nonvoting members, consisting of one trustee, a board of zoning appeals member, a zoning commission member, and others not holding public office.

Township planning staff assisted the committee, leading discussion, developing the final document, and engaging with the committee members via email. The committee met informally, did not announce the meetings to the public, did not take roll call and took no votes or minutes. The committee also considered over six months of work in person and interacted via email about a wide range of township land use issues and developed a land use plan and policy recommendations.

The township trustees were sued in mandamus, alleging a violation of the Open Meetings Act for failing to conduct the business of the committee in public and taking minutes. Once the lawsuit was filed, the trustees disbanded the committee and did not vote on the land use plan. The trial court found a violation of the OMA and the trustees appealed.

What did we learn?
The 1st District Court of Appeals in Hamilton County agreed with plaintiffs, finding that the Sunshine Law requires board committee meetings to be announced and open to the public, with minutes available for review. This is because board committees are subject to the OMA.

The court of appeals noted that it made no difference whether the committee had not taken votes. The trustees referred public business to the committee to consider and the committee deliberated and reached consensus in private. The court also found that a quorum of the body met and deliberated reviewing evidence such as pictures, emails, and testimony about the meetings of the body. All these factors resulted in a finding that a majority of the committee met to discuss public business, and in doing so, violated the OMA.

The email correspondence of committee members was likewise found to be a violation of the Sunshine Law; deliberation by a majority of the members outside of a public meeting using serial electronic communication is a violation of the law. The court affirmed the trial court’s decision invalidating the land use plan, ordering an injunction for the trustees not to violate the Sunshine Law again, finding a violation because the committee did not issue public notice of its meetings, hold the meetings in front of the public, and keep minutes. The trustees were ordered to pay statutory damages, attorneys fees and costs.

A claims handling service for a public entity is subject to the OMA
The last case in this tour of recent Sunshine Law litigation ends with frequent public records litigator bringing an action against the Ohio Township Association Risk Management Authority (OTARMA), its third-party claims handling entity, Public Entity Risk Management Services of Ohio (PERSO), and its law firm. (State ex rel. Ames v. Baker, Dublikar, Wiley & Mathews et al., 2022-Ohio-0170, Ohio Supreme Court, 2022).

Decided in November 2022, the Ohio Supreme Court considered the question of whether the unredacted invoices of the law firm advising PERSO, the third-party claims service, were public records. Plaintiff had previously sued the Rootstown Township Trustees for violations of the Sunshine Law three times, and the trustees had made claims with the OTARMA. The law firm provided legal services to PERSO in connection with that litigation. Plaintiff sought the unredacted invoices outlining the services provided by the law firm for those cases.

The law firm provided the invoices, but redacted the narrative portion describing the services provided, claiming that was protected by attorney-client privilege. The court of appeals agreed and dismissed the suit, and Plaintiff appealed.

Applying the quasi-agency test applied in previous cases, the Ohio Supreme Court noted that private entities may be subject to public records law when a public entity has delegated a duty to it, such as defending against lawsuits, and the private entity prepared records to carry out the public office’s duties. The court found that PERSO was not immune from a public records lawsuit.

Second, the court remanded the case to the court of appeals, instructing it to conduct an in camera review (i.e., for the court itself to review the invoices in chambers) of the invoices to determine if they contained attorney-client privileged information.

What did we learn?
Public entities participating in consortia and/or risk management entities which provide services may be subject to public records requests. This is because the public entity has delegated a duty it has to that entity, bringing the record generated into the ambit of public records law under the quasi-agency test. The court noted previous instances in which the General Assembly changed public records statutes when it disagreed with case law and that it could do the same in the future.