The danger of an overbroad view of the “overbroad” doctrine in Ohio public records law
I’m a supporter of the appropriate use of the doctrine of “overbroad,” which is one of the possible responses a public office can offer when a large or unwieldy public records request is made. In fact, I was one of the earliest public records law attorneys to advance this concept when I represented the City of Sandusky in what became one of the landmark cases to uphold the “overbroad” doctrine: State ex rel. Dillery v. Icsman, 92 Ohio St.3d 312, 2001-Ohio-193.
But, as a few public records advocates have noted, some government agencies may be using the “overbroad” doctrine when it is not fully warranted. These advocates are concerned that it has become an overly-used tactic to shut down what would otherwise be appropriate requests for records.
Our firm and my colleagues in the Public Law practice group often represent city, county, school district and state agencies when they are sued for allegedly failing to provide public records. And I train several hundred public employees every year in the details of Ohio’s Public Records Act. One of the best practices we recommend to clients and those we train is to only advance the “overbroad” response when it is truly warranted.
Here’s what the request was in the Dillery case mentioned above: “any and all records generated * * * containing any reference whatsoever to [name of person].” We successfully argued that such language is overbroad. The Ohio Supreme Court has also found overbroad language such as: “including, but not limited to” and a request that sought “whole categories of complaint and litigation files without any limitation as to content or time period.” In another oft-cited case, the Ohio Supreme Court denied as overbroad a request for a wide range of police citations because, the Court ruled, the law “does not contemplate that any individual has the right to a complete duplication of voluminous files kept by government agencies” State ex rel. Zauderer v. Joseph, 62 Ohio App.3d 752, 577 N.E.2d 444 (1989).
In another case, where I represented the City of Bellfontaine, we successfully advanced the “overbroad” doctrine when a requester sought access to several years of recorded audiotapes such as 911 calls and other police communications. Click here to view one of our briefs and the final appellate decision.
Public offices that receive a records request that appears to be overbroad, ought to first review this section of the Public Records Act:
“If a requester makes an ambiguous or overly broad request or has difficulty in making a request for copies or inspection of public records under this section such that the public office or the person responsible for the requested public record cannot reasonably identify what public records are being requested, the public office or the person responsible for the requested public record may deny the request but shall provide the requester with an opportunity to revise the request by informing the requester of the manner in which records are maintained by the public office and accessed in the ordinary course of the public office’s or person’s duties.” R.C. 149.43 (B)(2)
By showing the requester that particular section of the Code and explaining how the office keeps and maintains records (perhaps by showing the requester a copy of the office’s records retention schedule), the requester may then be asked to narrow the request.
However, if a public office asserts the “overbroad” (or as the Revised Code calls it the “overly broad”) doctrine when the request does not seem to be similar or consistent with what the courts have held to be overbroad (as discussed above), the public office runs the risk of being successfully sued. And, if the case is ultimately ruled upon by the Ohio Supreme Court, the precedent of such a decision could affect every public office in the state.
The short lesson is this: don’t apply the “overbroad” doctrine in a way that’s overbroad.