What is the Ohio Public Records Act?
The Ohio Public Records Act is built on the United States’ historical principle that the records of government are “the people’s records.” Patterson v. Ayers, 171 Ohio St. 369 (1960). The Public Records Act provides citizens with steps to take in order to request records from any public office in Ohio while protecting certain specific types of records from release. It also establishes a legal process to enforce compliance when a requester feels that a public office has failed to satisfy its public records obligations. ORC Chapter 149.
Who can make a request for public records?
Any person can request public records by simply asking for them. Usually, the request can be made in any manner the requester chooses: by phone, in person, or in an e-mail or letter. The requester cannot be required to identify him- or herself, or to explain why the records are being requested, unless a specific law requires it. Often, however, a voluntary discussion about the requester’s purposes or interest in seeking certain information can aid the public office in locating and producing the desired records. ORC 149.43(B)(5).
What does a public office have to do when it receives a public records request?
A public office must organize and maintain its records so that it can meet its duty to respond to public records requests. A public office also must keep a copy of its records retention schedule(s) at a location readily available to the public. ORC 149.43(B)(2). When it receives a public records request for specific existing records, the public office must provide inspection of the requested records during regular business hours or provide copies within a reasonable period of time. A requester is entitled to delivery of copies at the actual cost of packaging and delivery by any available means of delivery or transmission that he or she requests. ORC 149.43(B).
The public office may withhold specific records or specific portions of records that are covered by an exception to the Public Records Act, but is required to give the requester an explanation for any part of a record withheld, including the supporting legal authority. ORC 149.43(B)(3). In addition to denials based on an exception, a public office may deny a request in the extreme circumstance where compliance would unreasonably interfere with the discharge of the office’s duties. A request can also be refused if the office no longer keeps the records, if the request is for items that are not records of the office, if the requester does not revise an ambiguous or overly broad request, or if the requester refuses to pay the cost of copies. ORC 149.43(B).
To whom does the Public Records Act apply?
The rights and duties set out in the Act apply only to a “public office or person responsible for public records,” which includes governmental subdivisions, private entities that are the “substantial equivalent” of public institutions, and other “persons responsible for public records.” The act does not apply to private organizations, including corporations, and is also different from the federal Freedom of Information Act (FOIA), which applies only to federal agencies. ORC 149.011(A).
If someone is not given public records, what legal options does that person have?
People who believe they have been wrongly denied a public record that they requested may choose from one of two options, but not both: 1) they can file a lawsuit, called a mandamus action, against the public office, or 2) they can file a complaint with the Ohio Court of Claims. The burden will be on the public office to show the court that any record that it withheld was clearly protected by one or more valid exceptions under the law. If not, the public office will be ordered to provide the record, and may be subject to a civil penalty and payment of attorney fees. The Public Records Act is a “self-help” statute, which requires citizens who believe that the act has been violated to independently pursue a remedy (like a lawsuit), rather than asking a public official such as the Ohio Attorney General to initiate legal action on their behalf. ORC 149.43(C)(1).
Does a public office have to work with the requester to find public records?
If a requester makes an ambiguous or overly broad request that the public office denies, the Public Records Act provides for negotiation between the parties to help identify, locate, and deliver the requested records. ORC 149.43(B)(2). Unless a specific law says otherwise, a requester does not have to give the reason for wanting the records, give his or her name, or make the request in writing, but the request does have to be clear and specific enough for the public office to reasonably identify what public records are being requested. ORC 149.43(B)(5).
What makes a “record” a “public record?”
While the rights of records access under the Ohio Public Records Act apply to all records kept by an Ohio public office, the terms “records” and “public records” do not include every document or item found in a public office. Only those records that document the policies, operations, and other activities of the public office are “public records” under the Public Records Act. ORC 149.43(A)(1).
Can some public records be withheld from a requester?
The General Assembly has passed a number of laws that protect certain records by either requiring or allowing a public office to withhold them from public release. Where a public office uses one of these “exceptions,” the office may only withhold a record or part of a record clearly covered by the exception, and must tell the requester what legal authority it is relying on to withhold the record. If only part of a record is protected by an exception, then the public office must redact (obscure or delete) only that part of the record and provide the unprotected remainder to the requester. ORC 149.43(B)(1).
How long should email records be kept?
It depends on the content of the email message. In terms of records retention, email records are no different than any other record that is kept by a public office. For example, most public offices will have a different records retention schedule for a memo about handling customer complaints than for a daily news clipping file, even though both are records. These records should be kept according to their respective retention schedules, regardless of whether they exist on paper or as an email. The most important thing to remember is that each record should be evaluated for and identified by its content and not by the medium in which it exists. It may help this evaluation process to picture each email message as a paper record.
Should all emails be kept for the same amount of time?
No. Just like messages written on paper, all email messages will not be kept for the same amount of time because they will differ greatly in terms of subject matter. Each email should be identified and managed based on its content.
For example, if an employee of a public office received a piece of paper on their desk noting that a meeting will be held at 3 p.m., the employee could probably discard that paper after the meeting has passed (this would likely be considered a “transient” record, or one that has a limited ministerial use). On the other hand, if the employee received a paper report updating all of the public office’s current projects, it would probably have to be retained for a much longer period of time because of its content. The duly enacted record retention schedules of the public office will determine how long these respective records would have to be kept.
The same is true for email messages. If the employee receives a simple email reminder of a meeting, it can probably be quickly discarded as “transient.” If an email is a notice to staff of a new policy, or serves as the record copy of an order to promote or dismiss an employee, or gives directions regarding an office project or legal case, it would be kept for the period applicable to each type of record.
Always remember, it is the content of a record that determines which retention schedule applies to that record, and determines how long it is to be kept. This is true regardless of whether the record is on paper or an email.
What if a public office gets a request for all emails sent and received by an employee?
A request for “all e-ail” is generally overly broad under the Public Records Act. A 2008 decision by the Ohio Supreme Court reemphasized that the Public Records Act “does not contemplate that an individual has the right to a complete duplication of voluminous files kept by government agencies.” Rather, the requester must identify the records sought with sufficient clarity. Glasgow v. Jones, 119 Ohio St.3d 391, 2008-Ohio-4788.
If a request for “all emails” includes sufficient additional information about the content of those emails to allow the public office to identify responsive records based on the manner in which its records are organized, the request is not overly broad. However, if the request is ambiguous or lacks enough detail for the office to identify which records are being sought, it may well be overly broad. In that instance, the public office is obligated by law to give the requester an opportunity to revise the request by explaining how the various records of the office are ordinarily maintained and accessed. ORC 149.43(B)(2). A set of well-crafted records retention schedules (classified by type of record rather than medium of record) can help put the office and the requester on the same page.
Where can I find more details about the Public Records Act?
For more information about the Public Records Act, the Sunshine Laws Manual is a great resource for finding answers to common and complex questions.