The court determined that, because a public official’s private communications are not technically “kept” by a public office, those communications cannot be considered a public record.
This threatens to overturn longstanding case law that says communications using a private email address or cell phone are public if they document a public function.
The decision prompted the plaintiff to ask the court to reconsider its ruling, with backing from the Ohio Coalition for Open Government and a group of media organizations, including Gannett, Hearst and Scripps.
Jack Greiner, an attorney on behalf of the media outlets, wrote to the court that its decision “would open pandora’s box, allowing public officials to circumvent the Public Records Act by utilizing personal devices and accounts to exchange public records outside of public view.”
“Allowing public officials to withhold public documents from disclosure through the use of personal devices is a direct threat to the transparency mandated by the Public Records Act. This practice would enable officials to conceal corruption, mismanagement, or policy failures. That is completely antithetical to the Public Records Act,” Greiner wrote in late June.
Many elected officials conduct business using personal cell phones and email accounts. Some small townships and villages don’t even have government email accounts.
News outlets like the Dayton Daily News routinely obtain records including text messages and emails from personal accounts to shed light on deliberations and public policy decisions.
“Elected officials work for the public,” said Ashley Bethard, chief content officer and editor in chief of the Dayton Daily News. “Removing private texts and emails between them from the public record draws a dangerous curtain on transparency. Government officials should be held accountable — and journalists and their access to public records have long played a critical role in that accountability.”
The lawsuit
The decision punctuated a lawsuit that centered on a citizen’s public records request to the Montgomery County Board of Elections from 2024.
The request in question was prompted by the board’s investigation into how legal advice, produced by the Montgomery County Prosecutor’s Office at the behest of the board, was leaked to the Montgomery County Democratic Party and used to challenge the candidacy of Mary McDonald, the former Democratic mayor of Trotwood who ran for the Montgomery County Commission as a Republican in 2024.
The investigation found that Russ Joseph, deputy director of the board and a longtime Democratic operative, had sent this legal advice, protected under attorney-client privilege, from his government email address to his private email address. He then used his private email address to send the privileged information to Mohamed Al-Hamdani, chairman of the Montgomery County Democratic Party.
In its decision, the Supreme Court of Ohio ruled that the email Joseph sent to his private email address was indeed a public record. The email he sent from his private email to Al-Hamdani, however, “stands on footing different from the email sent from his board email account.”
“Joseph sent the email to Al-Hamdani from his personal email account, and there is no evidence in the record showing that Joseph’s personal email account is maintained by the board,” the court ruled.
Al-Hamdani used the information to formally protest McDonald’s candidacy. He also forwarded the information to his colleague Dennis Lieberman, whose wife, Democratic County Commissioner Debbie Lieberman, would have been unopposed in her reelection campaign if McDonald’s candidacy had been found invalid.
McDonald’s candidacy was upheld. She won her seat with 50.42% of the vote and became the county’s sole Republican commissioner.
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Avery Kreemer can be reached at 614-981-1422, on X, via email, or you can drop him a comment/tip with the survey below.
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