Nothing to LOL About: Cincinnati Case Puts New Focus on Text Messages as Public Records

RMR UR TXTs in 2K19. THX.

(Remember your texts in 2019.  Thanks.)

With the start of a new year, you as a public official may be gearing up for organizational meetings, budgetary allocations, and trainings to sharpen your practices as a civil servant.  A pending Cincinnati case serves as an important reminder related to Ohio’s Sunshine Laws: consider that your text messages, even sent on a personal phone, could be public records.

The contentious Cincinnati lawsuit, brewing for nearly a year, claims that five members of city council violated Ohio’s Open Meetings Act by discussing city business outside of a public forum.  The self-proclaimed “Gang of Five” council members engaged in several one-on-one text messages and group chats, discussing whether to retain the then-city manager as an employee.  Through a public records request, a citizen caught wind of the matter and filed suit, seeking, among other items, full disclosure of the text messages.

As time passed, the case dragged on and became bitter, contentious, and downright ugly.  A judge has already ordered the release of thousands of texts, even some unrelated to city business.  When several texts turned up missing because they were deleted and, in one instance, lost when a council member dropped a phone into a pool, a grand jury investigation commenced into possibly tampering with evidence.

Most recently, the case was allowed to proceed in the First District Court of Appeals after a failed motion to dismiss.  Arguments for both sides will likely be scheduled early in 2019.  One issue sure to be under consideration will examine whether texts sent on personal, privately paid-for cell phones in fact constitute public records.  The pending case has resulted in a political and publicity firestorm with no clear or predictable outcome in sight.

This case may serve as a cautionary tale for you as a public official, whether you’ve been dedicated to public service for one month, one year, or one decade.  As we move further into the 21st Century, legal issues surrounding supposedly personal and private technology will be coming to the fore in the public records context.  The 2016 Ohio Supreme Court case of White v. King, 2016-Ohio-2770 probably started the ball rolling, holding that a meeting of a public body need not occur face-to-face, but can occur telephonically, via email, or by text.  The implications of this case, coupled with the pending Cincinnati matter, put a whole new technological spin on Ohio’s Sunshine Laws.

As a local government official, be extremely aware of what you communicate with colleagues through text messages.  In some instances, every “LOL”, “TTYL”, and “BRB” could be subject to public release.

To learn more about the Cincinnati case as it progresses, or if you have questions about Ohio’s Sunshine Laws in general, please contact Isaac Wiles attorney David Moser at 614-221-2121.