Hicks v. Union Twp. , 2023 Ohio 874 ( 2023 )

[Cite as Hicks v. Union Twp., 2023-Ohio-874.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
CLERMONT COUNTY
CHRISTOPHER RICHARD HICKS, :
Appellant, : CASE NO. CA2022-10-057
: OPINION
- vs - 3/20/2023
:
UNION TOWNSHIP, CLERMONT :
COUNTY BOARD OF TRUSTEES,
:
Appellee.
APPEAL FROM OHIO COURT OF CLAIMS
Case No. 2022-00408PQ
Christopher Richard Hicks, pro se.
Bricker & Eckler, and Brodi J. Conover, for appellee.
HENDRICKSON, J.
{¶1} Appellant, Christopher Richard Hicks, appeals from a decision rendered by
the Court of Claims of Ohio which adopted a special master's report and recommendation
in favor of appellee, the Union Township, Clermont County Board of Trustees ("the
Township"), on a public-records dispute brought under R.C. 2743.75. For the following
reasons, we affirm the judgment of the Court of Claims.
{¶2} On January 12, 2022, Hicks submitted a public records request to the
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Township as follows:
This is a record request for the mailing lists for the township
newsletter. I am requesting two formats:
• EMAIL LIST – the full email list used for township
newsletters.
• MAIL LIST – the full mail list used for township
newsletters.
I request the records in electronic format. * * *
The Township denied Hicks' request, stating in a January 18, 2022 response that "[n]either
of [the] lists * * * document the activities or function of the Township and, therefore, neither
are public records." A subsequent response by legal counsel for the Township, emailed to
Hicks on January 26, 2022, reiterated that the requested items would not be produced as
"neither of the records [Hicks] requested document the activity and function of the
Township." Hicks sought clarification and reconsideration of the denial. On May 10, 2022,
the Township notified Hicks that "the information [he sought was] not a public record and
does not document the activity of the Township."
{¶3} On May 11, 2022, Hicks, acting pro se, filed a complaint in the Court of Claims
pursuant to R.C. 2743.75(D) asserting that the Township denied him access to public
records in violation of R.C. 149.43(B). Specifically, Hicks alleged in his complaint the
following:
The [T]ownship uses postal mail and email to distribute
newsletters to some or all citizens in the township. The
[T]ownship maintains an online sign up to receive the
newsletters via email (consisting of only name and email
addresses).
***
The case comprises a postal mailing list and an email
distribution list, with no personal information beyond that
needed to "mail." The requested lists do not contain personal
information nor information that is personal in the sense of
profiling (ex: jury member). The list is a record that documents
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"the operations, or other activities of the office."
***
Requester asks that the two requested distribution lists be
provided in total or with limited redaction that may be supported
by statute or caselaw.
{¶4} The Court of Claims appointed a special master to handle the case pursuant
to R.C. 2743.75(A), and the matter was referred to mediation. On July 8, 2022, mediation
was terminated after the parties failed to reach a settlement. Thereafter, the Township filed
a response to Hicks' complaint, contending that "the records sought by [Hicks] are non-
records and do not document the activity and function of the Township, and therefore are
not subject to release." The Township requested the court deny Hicks' complaint and in
support of its request, submitted the affidavit of Susan C. Ayers, the Township Administrator
since March 2022.
{¶5} In her affidavit, Ayers attested that since at least 2013, the Township has
produced quarterly newsletters that focus on stories for the community. Topics the
newsletters have covered include ways of growing churches in the Township, warnings of
scammers, tips on preventing and preparing for fires during the winter, and information on
junk disposal. The newsletters have also included the Township's meeting schedule, the
contact information for each of the Township's department, and a "Bulletin Board" section
that provides notice of specific programs or upcoming events. To the best of Ayers'
knowledge, "the newsletter was not started by a Trustee resolution."
{¶6} Ayers further attested as follows regarding distribution of the newsletters:
7. The Township utilizes a third-party direct mail vendor that
sends the newsletter to all Township addresses. That vendor is
responsible for assembling the list of addresses, maintaining the
list, and ensuring that the newsletter is mailed to each of those
addresses.
8. The Township does not assemble the list, does not maintain
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the list, and does not use the list for any other reason.
9. The Township also provides an opportunity for individuals to
subscribe to the newsletter and receive it electronically.
10. On the Township's website, those individuals are asked for
their name and their email address.
11. The Township has a list of the names and email addresses
that are sent a copy of the electronic version of the newsletter.
12. That list is only used for the administrative purpose of
sending the electronic version of the newsletter. It is not kept
for or used for any other reason.
13. The mailing list and the email mailing list for the Township
newsletter do not document the activity and function of the
Township. They are only kept for the administrative purpose of
sending out the newsletter.
{¶7} With leave, Hicks filed a reply to the Township's responsive pleading. Hicks
challenged the accuracy of Ayers affidavit, contending the affidavit was "riddled with
falsehoods, selective information, and inaccuracies." Hicks noted that Ayers had only
recently been hired as Township Administrator and did not have familiarity with the
newsletter or all that it entailed. Hicks obtained an affidavit from Gina DiMario, a retired,
former employee of the Township who had served as the editor and manager of the
Township newsletter from 2005 to March 2022.
{¶8} In her affidavit, DiMario attested that the newsletter, which was printed
quarterly, had been "part of [her] job responsibilities, job description and job evaluation." In
her position, she had expanded the newsletter from four to six pages and worked to create
new and pertinent topics. According to DiMario, the newsletters were "published as a
government activity to provide the Union Township community with pertinent information
from its governing body to its residents and businesses." She stated that the newsletters
included articles from the police, fire, service, and zoning departments, information about
township events and meetings, and contact information for each Township department.
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The newsletters also included "seasonal and topical stories," which covered items such as
new business spotlights, the history of the Township, improvements to school districts, and
the development of various areas inside the Township. The newsletters did not include
stories submitted from the general public, as "the [T]ownship newsletter was not a vehicle
for personal 'blogging.'" Copies of the newsletters from 2013 to 2022 exist online.
{¶9} Regarding distribution of the newsletters, DiMario averred the following about
those that were printed and mailed:
9. Purchase orders, approved by the Trustees, paid for the
printing and mailing of the newsletter.
10. Cincinnati Print Solutions did the printing and the Post
Office did the mailing.
11. Mailing was based on a distribution list maintained by the
printer in conjunction with the Post Office and based on local zip
codes.
12. The newsletter was mailed to both residences and
businesses.
{¶10} As for the newsletters that were emailed, DiMario stated:
14. Beyond the physical document, the newsletter
encompassed a database for email distribution.
15. A web portal allows for interested persons to sign up for
electronic distribution of the newsletter. It is maintained by
Brandon Miller, another [Union Township] employee.
16. The system included a database of those who signed up.
17. The newsletter's electronic distribution is done via a special
newsletter address. The emails allow for subscribe and
unsubscribe.
{¶11} Relying on DiMario's affidavit, Hicks contended the newsletter program is a
government function and that both the mail and email distribution lists are public records
required to be made available in accordance with R.C. 149.43(B). He argued that the
"requested information is essential to the ability of Requester to understand and form a
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critique of a specific function of the government, staffed and paid for with tax dollars." Hicks
indicated he desired to obtain the newsletter to "evaluate the conduct of the newsletter
program." For example, Hicks indicated he wished to learn who the newsletter was being
sent to (residences and businesses or only residences), if there were any citizens being
omitted, if there was an overlap of individuals receiving the newsletter by mail and email,
how "well-saturated" the email list was, and whether the emails were "valid or bot accounts."
{¶12} On August 16, 2022, the special master issued a report and recommendation
finding that based on the pleadings, affidavits and documents submitted in the action, "Hicks
has not shown by clear and convincing evidence that the requested [T]ownship newsletter
mailing or email lists meet the definition of a 'record' of the Township and are not governed
by the Public Records Act." The special master determined that the mail and email lists,
which are kept solely for the administrative purpose of sending out the newsletter,
"constitute contact information used for administrative convenience in cost-effective
communication to township residents, businesses, and other interested persons. * * *
[D]isclosure of the names and/or addresses of persons who automatically receive or have
subscribed to the township newsletter would not further the purposes of the [Public Records]
Act."
{¶13} Hicks objected to the special master's report and recommendation,
contending that the special master erred when it classified the email list and mailing list as
"administrative convenience[s]." Hicks argued that the distribution lists are public records
that document "other activities" of the Township, which should be produced as they are "not
protected by caselaw, privilege, or statutory exceptions." The Township filed a response to
Hicks' objections, arguing the objections were without merit as there was no error of law or
defect in the special master's report and recommendation.
{¶14} On September 12, 2022, the Court of Claims overruled Hicks' objections and
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adopted the special master's report and recommendation, concluding that "neither the full
email list nor the full postal, mailing list documents the organization, functions, policies,
decisions, procedures, operations, or other activities of Union Township within the meaning
of R.C. 149.011(G). Rather, the full email list and the full postal mailing list represent
contact information that Union Township uses as a matter of administrative convenience."
Hicks' request for the production of records was therefore denied.
{¶15} Hicks timely appealed pursuant to R.C. 2743.75(G)(1), raising the following
as his sole assignment of error:
{¶16} THE COURT OF CLAIMS ERRED BY HOLDING THE REQUESTED
RECORDS WERE NOT PUBLIC RECORDS.
{¶17} Ohio's Public Records Act "reflects the state's policy that 'open government
serves the public interest and our democratic system.'" Welsh-Huggins v. Jefferson Cty.
Prosecutor's Office, 163 Ohio St.3d 337, 2020-Ohio-5371, ¶ 10, quoting State ex rel.
Morgan v. New Lexington, 112 Ohio St.3d 33, 2006-Ohio-6365, ¶ 28. The Act, codified in
R.C. 149.43, provides that upon request a public office "shall make copies of the requested
public record available to the requester at cost and within a reasonable period of time." R.C.
149.43(B)(1). "R.C. 149.43 * * * provides for full access to all public records upon request
unless the requested records fall within one of the specific exceptions listed in the Act."
State ex rel. Miami Student v. Miami Univ., 79 Ohio St.3d 168, 170 (1997). The Public
Records Act is, therefore, "'construed liberally in favor of broad access, and any doubt is
resolved in favor of disclosure of public records.'" State ex rel. Cordell v. Paden, 156 Ohio
St.3d 394, 2019-Ohio-1216, ¶ 7, quoting State ex rel. Cincinnati Enquirer v. Hamilton Cty.,
75 Ohio St.3d 374, 376 (1996).
{¶18} Traditionally, an action in mandamus under R.C. 149.43(C) was the only
remedy to compel compliance with R.C. 149.43. Welsh-Huggins at ¶ 11. However, in 2016,
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the Ohio legislature enacted R.C. 2743.75 as an alternative to a mandamus action. The
statute was enacted in an effort "'to provide for an expeditious and economical procedure
that attempts to resolve disputes alleging a denial of access to public records' in violation
of R.C. 149.43(B)." Id. at ¶ 12, citing R.C. 2743.75(A).
{¶19} "While the process established for proceedings under R.C. 2743.75 may be
new, the fundamental legal principles that govern disputes over access to alleged public
records are not." Id. at ¶ 9. Public-records-access proceedings brought in the Court of
Claims pursuant to R.C. 2743.75 are "consistent with the standards that are applicable to
mandamus-enforcement actions." Id. at ¶ 32, citing R.C. 2743.75(F)(1). "To that end, as
in a R.C. 149.43(C) mandamus action, a complainant in a R.C. 2743.75 proceeding carries
the 'burden of production * * * to plead and prove facts showing that the requester sought
an identifiable public record pursuant to R.C. 149.43(B)(1) and that the public office or
records custodian did not make the record available.'" Viola v. Ohio Atty. Gen., Pub. Record
Unit, 10th Dist. Franklin No. 21AP-126, 2021-Ohio-3828, ¶ 16, quoting Welsh-Huggins at ¶
33. "Likewise, the 'burden of persuasion' remains at all times on the requester to prove his
or her 'right to relief under R.C. 2743.75 by the requisite quantum of evidence.'" Id., quoting
Welsh-Huggins at ¶ 34.
{¶20} In an action filed under R.C. 2743.75, the requester must establish his or her
right to relief by clear and convincing evidence. Viola v. Cuyahoga Cty. Pros. Office., 8th
Dist. Cuyahoga No. 110315, 2021-Ohio-4210, ¶ 16; Hurt v. Liberty Twp., 5th Dist. Delaware
No. 17 CAI 05 0031, 2017-Ohio-7820, ¶ 27-30. Clear and convincing evidence "'is a
measure or degree of proof that is more than a preponderance of the evidence, but not to
the extent of such certainty as proof beyond a reasonable doubt, which is the requisite
burden of proof in a criminal case, and that will produce in the trier of fact's mind a firm belief
as to the fact sought to be established." State ex rel. Griffin v. Doe, 165 Ohio St.3d 577,
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2021-Ohio-3626, ¶ 5, quoting State ex rel. Miller v. Ohio State Hwy. Patrol, 136 Ohio St.3d
350, 2013-Ohio-3720, ¶ 14.
{¶21} When a public-records-access case is appealed pursuant to R.C.
2743.75(G)(1), "Ohio courts of appeals have applied the standard of appellate review
applicable to such mixed questions of law and fact, reviewing the application of a claimed
exemption de novo while according due deference to the trial court's factual
determinations." Welsh-Huggins, 2020-Ohio-5371 at ¶ 39.
{¶22} Hicks argues that the Court of Claims erred in denying his records request as
the requested email distribution list and mail distribution list for the Township's newsletters
are public records "essential to monitoring the performance of government." He contends
the lists "document a function of government" and are not kept merely as an "administrative
convenience." Because public policy favors their disclosure, and because the records are
not part of any statutory exception, Hicks contends the Court of Claims erred by denying
his request for production of the records.
{¶23} Pursuant to R.C. 149.43(A)(1), a "'[p]ublic record' means records kept by any
public office." R.C. 149.011(G) defines "records" as
any document, device, or item, regardless of physical form or
characteristic, including an electronic record as defined in
section 1306.01 of the Revised Code, created or received by or
coming under the jurisdiction of any public office of the state or
its political subdivisions, which serves to document the
organization, functions, policies, decisions, procedures,
operations, or other activities of the office.
{¶24} R.C. 9.03(B) permits the "governing body of a political subdivision * * *[to] use
public funds to publish and distribute newsletters, or to use any other means, to
communicate information about the plans, policies, and operations of the political
subdivision to members of the public within the political subdivision and to other persons
who may be affected by the political subdivision." There is no doubt that the newsletters
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created by the Township qualify as a public record subject to production upon request. The
question posed by the present appeal is whether the list of addresses and list of names and
email addresses where the newsletters are distributed constitute a public record.
{¶25} To establish that the mail distribution list and the email distribution list are
records for purposes of R.C. 149.011(G) and 149.43, Hicks must have proved by clear and
convincing evidence that the distribution lists are (1) documents, devices, or items, (2)
created or received by or coming under the jurisdiction of the state agencies, (3) which
serve to document the organization, functions, policies, decisions, procedures, operations,
or other activities of the Township. See State ex rel. Dispatch Printing Co. v. Johnson, 106
Ohio St.3d 160, 2005-Ohio-4384, ¶ 19. If Hicks fails to prove any of these three
requirements, he is not entitled to compel access to the requested lists, as those records
are not subject to disclosure under the Public Records Act. Id. See also State ex rel.
Beacon Journal Publishing Co. v. Bond, 98 Ohio St.3d 146, 2002-Ohio-7117, ¶ 9 ("To the
extent that an item does not serve to document the activities of a public office, it is not a
public record and need not be disclosed").
Email Distribution List
{¶26} Hicks presented evidence that the Township has a web portal that allows
interested individuals to sign up to receive the newsletters by email. This web portal,
maintained by a Township employee, asks individuals to provide their names and email
addresses. This information is then used by the Township to email out the newsletters.
{¶27} The email distribution list satisfies the first two requirements for "records"
under R.C. 149.011(G). The email distribution list is (1) an item (2) created by the
Township. Whether the email distribution list is a "record" therefore depends upon whether
the email list meets the final requirement specified in R.C. 149.011(G). Does it "serve[] to
document the organization, functions, policies, decisions, procedures, operations, or other
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activities" of the Township?
{¶28} In answering this question, it is helpful to review supreme court precedent that
examined this issue, albeit in a different context. For example, in Johnson, 2005-Ohio-
4384, the Ohio Supreme Court considered whether state-employee residential addresses
were public records under R.C. 149.011(G). There, the requester, Dispatch Printing
Company, sought payroll records for all state employees, including names, addresses, job
and agency titles and all pay fields from the Ohio Department of Administrative Services
(DAS) and other state agencies. When DAS and the other state agencies refused to turn
over the state-employee residential addresses, Dispatch filed a mandamus action with the
supreme court. The court found that "simply because an item is received and kept by a
public office does not transform it into a record under R.C. 149.011(G). '[N]ot all items in a
personnel file [or other generally public record] may be considered public records.'" Id. at
¶ 29, quoting State ex rel. Fant v. Enright, 66 Ohio St.3d 186, 188 (1993). "None of th[e]
evidence [submitted] establishes that state-employees home addresses 'document the
organization, functions, policies, decisions, procedures, operations, or other activities' of the
state agencies within the meaning of R.C. 149.011(G). At best, home addresses represent
contact information used as a matter of administrative convenience." (Emphasis added.)
Id. at ¶ 25.
{¶29} The court noted that "any state-agency policy requiring that its employees
provide and update their home addresses would document a policy and procedure of a
public office, but the home addresses themselves would not do so." Id. at ¶ 26. "[H]ome
addresses generally document the places to which state employees return after they have
performed the work comprising the 'organization, functions, policies, decisions, procedures,
operations, or other activities' of their state agencies." (Emphasis sic.) Id. The court further
noted that while the purpose of the Public Records Act was to "expose government activity
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to public scrutiny," the "[d]isclosure of the home addresses of state employees 'would reveal
little or nothing about the employing agencies or their activities.'" Id. at ¶ 27, quoting United
States Dept. of Defense v. Fed. Labor Relations Auth., 510 U.S. 487, 497, 114 S.Ct. 1006
(1994). The court therefore denied the writ of mandamus. Id.1
{¶30} In Bond, 2002-Ohio-7117, the Ohio Supreme Court considered whether juror
questionnaires and a list of juror names and addresses were "public records" subject to
inspection under R.C. 149.43. A newspaper had filed a mandamus action asking the
supreme court to order a trial court in a capital-murder case to release the information. Id.
at ¶ 5. The court held that "[t]he disclosure of information regarding prospective and
impaneled jurors does little to ensure the accountability of government or shed light on the
trial court's performance of its statutory duties. * * * [D]isclosure of information about private
citizens is not required when such information 'reveals little or nothing about an agency's
own conduct' and 'would do nothing to further the purposes of the [Public Records] Act.'"
Id. at ¶ 11, quoting McCleary v. Roberts, 88 Ohio St.3d 365, 368-369 (2000).
{¶31} The court noted that the trial court did not use the juror questionnaire response
information in rendering its decision, "but rather collected the questionnaires for the benefit
of the litigants in selecting an impartial jury and maintained the jurors' names and addresses
for the administrative purpose of identifying and contacting individual jurors." Id. at ¶ 12.
The court therefore concluded that the questionnaire responses and juror names and
addresses were not "records" subject to disclosure under R.C. 149.43. Id. at ¶ 13.
However, the court distinguished the juror responses from the actual questions from which
1. The supreme court did recognize that there were "limited exceptions in which public-employee home
addresses may constitute records as defined by R.C. 149.011(G)." State ex rel. Dispatch Printing Co. v.
Johnson, 106 Ohio St.3d 160, 2005-Ohio-4384, ¶ 39. For instance, when the public employee's work address
is also that employee's home address or "when one of the employment requirements is that the employee live
within a certain state, county, or municipality, that portion of the home address constitutes a record for
purposes of the Public Records Act." Id.- 12 -
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the responses were solicited and determined that "the questions that elicited such
responses [were] invariably written or approved by the trial court." Id. As such, the supreme
court concluded that the "questions serve to document the activities of a public office and
thereby satisfy the statutory definition of a 'record' under R.C. 149.011(G)." Id. The
supreme court ordered that the questionnaires without responses be disclosed to the
newspaper. Id.{¶32} In McCleary, 88 Ohio St.3d 365, the Ohio Supreme Court was asked to
determine whether a city department's database containing the identifying, personal
information of children who used the city's recreation facilitates constituted a "record" for
purposes of the Public Records Act. The court found that it was not a record, holding that
"[s]tanding alone, that information, i.e., names of children, home addresses, names of
parents and guardians, and medical information, does nothing to document any aspect of
the City's Recreation and Parks Department." Id. at 368. The court further stated:
The existence of the Department's photo identification program
has been well documented. It is no secret as to when the
program was initiated, the purpose of the program, how the
program operates, and the effect it has had in making the City's
recreational facilities safer and more manageable. It is also no
secret that the Department possesses certain personal
information, voluntarily provided, of those children who use the
City's swimming pools and recreational facilities. We fail to see
how release of the requested information to appellee, or anyone
else, would provide any further insight into the operation of the
Department's photo identification program than that already
available."
(Emphasis added.) Id. at 369.
{¶33} Finally, the court emphasized that the personal information requested was
provided by private citizens rather than contained in the personnel files of a public
employees. It stated:
The subjects of appellee's public records requests are not
employees of the government entity having custody of the
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information. They are children—private citizens of a
government, which has, as a matter of public policy, determined
that it is necessary to compile private information on these
citizens. It seems to us that there is a clear distinction between
public employees and their public employment personnel files
and files on private citizens created by government. To that
extent the personal information requested by appellee is clearly
outside the scope of R.C. 149.43 and is not subject to
disclosure.
Id. at 369-370.
{¶34} Though email distribution lists were not at issue in Johnson, Bond, and
McCleary, the analysis and holdings set forth in those cases provide useful guidance in
analyzing the issue before us. Like in McCleary, the information subject to the public
records request is information of private citizens – names and email addresses – that has
been compiled by the government into a database. Standing alone, the names and email
addresses do nothing to document any aspect of the Township's newsletter program.
Releasing such information to Hicks, or anyone else, would not provide any further insight
into the Township's newsletter program than that already available from accessing the
newsletter itself or the Township's policies regarding the creation and distribution of the
newsletter. As the supreme court noted in Bond, "disclosure of information about private
citizens is not required when such information 'reveals little or nothing about an agency's
own conduct' and 'would do nothing to further the purposes of the [Public Records] Act.'"
Bond, 2002-Ohio-7117 at ¶ 11, quoting McCleary at 368-369. Hicks has not presented
evidence establishing that private citizens' names and email addresses "document the
organization, functions, policies, decisions, procedures, operations, or other activities" of
the Township within the meaning of R.C. 149.011(G). Rather, the names and email
addresses represent contact information used as a matter of convenience in distributing the
newsletters. See Johnson, 2005-Ohio-4384 at ¶ 25; Bond at ¶ 12. We therefore find that
the email distribution list for the newsletters is not a public record as defined by R.C.
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149.011(G) and is not subject to production by the Township under R.C. 149.43. The Court
of Claims did not err in denying Hicks' request for production of the names and email
addresses comprising the email distribution list.
{¶35} In reaching this determination, we note that we have reviewed the 2014 Ohio
Attorney General Opinion cited and relied upon by Hicks in his appellate brief. See 2014
Ohio Atty.Gen.Ops. No. 2014-029. Though "Attorney General Opinions are not binding on
courts," they can be persuasive authority. State ex rel. Van Dyke v. Pub. Emp. Retirement
Bd., 99 Ohio St.3d 430, 2003-Ohio-4123, ¶ 40. In the opinion at issue here, the attorney
general addressed whether the personal email address of a township resident that appears
in a public record of the township was itself a public record. Atty.Gen.Ops. No. 2014-029,
at 1. There, a West Chester Township fiscal officer sent an email to several hundreds of
people discussing township activities, the conduct of two township trustees, the work of the
township's legal counsel, duties of the township fiscal officer, and the township fiscal
officer's impressions of the actions of the township trustees and the township's legal
counsel. Id. The Attorney General Opinion examined whether the personal email
addresses of the recipients of the email are themselves public records, and concluded that
"[w]hether personal email addresses that are contained in a public record are themselves
public records is a fact-specific inquiry that must be determined on a case-by-case basis."
Id. at paragraph one of the syllabus.
{¶36} "To determine whether personal email addresses document the organization,
functions, policies, decisions, procedures, operations, or other activities of the township, the
township must determine whether disclosure of the email addresses would facilitate the
public's ability to monitor the functions of the township in performing its statutory duties, and
whether the township actually used the email addresses in making decisions or in
performing its functions." Id. at paragraph three of the syllabus. Factors the attorney
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general identified as relevant to this determination include (1) whether the email was sent
as part of the township's or its employees' official duties, (2) whether a township resolution
required the sending of such email, (3) whether the recipients are constituents of the
township, (4) whether the recipients' email addresses are maintained in a database of the
township, and (5) whether the recipients provided their email addresses to the township for
the purpose of receiving an email that is sent by the township as part of its official activities.
Id. at 9. "Affirmative responses to some or all of these queries may lead the township to
conclude that the personal email addresses were used in the performance of township
functions and disclosing the personal email addresses will facilitate the public's ability to
monitor those functions." Id. at 9-10. However, if the email was sent to recipients for a
reason unrelated to the performance of township responsibilities, "the township may
conclude that the personal email addresses were not used by the township in the
performance of its functions and disclosure of the email addresses will shed little light on
the functions and activities of the township." Id. at 10.
{¶37} Looking at the principles expressed in the Attorney General Opinion, we are
not convinced that the names and addresses contained in the email distribution list
constitute a "record" as defined in R.C. 149.011(G). Though the names and addresses are
kept in a Township-created database and are used to send the Township-created
newsletter, the recipients of the emailed newsletter are not limited to Union Township
residents. Rather, anyone across the globe may subscribe to the newsletter. Those who
do subscribe to the newsletter do not participate in the creation of the newsletter or
contribute to the contents of the newsletter. The recipients, therefore, are not part of the
decision-making process surrounding the newsletter and they do not assist the township in
the performance of its functions. Rather, the names and email addresses are merely used
as a matter of administrative convenience in sending out the newsletters. See Johnson,
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2005-Ohio-4384 at ¶ 25; Bond, 2002-Ohio-7117 at ¶ 12. We therefore conclude that the
Court of Claims did not err in denying Hicks' request for production of the names and email
addresses comprising the email distribution list.
Mail Distribution List
{¶38} The mail distribution list for the newsletter differs significantly from the email
distribution list. Both Ayers' and DiMario's affidavits indicate that after the newsletter is
created by the Township, it is provided to a printer, or "direct mail vendor." According to
DiMario, "[m]ailing was based on a distribution list maintained by the printer in conjunction
with the Post Office and based on local zip codes." Ayers attested that it was this vendor
who "is responsible for assembling the lists of addresses, maintaining the list, and ensuring
the newsletter is mailed to each of those addresses." Ayers further attested that the
Township "does not assemble the list, does not maintain the list, and does not use the list
for any other reason."
{¶39} The mail distribution list satisfies the first requirement of the three-part test for
"records" under R.C. 149.011(G), as the list of addresses is an "item." It also arguably
meets the second part of the three-part test as the address list comes under the jurisdiction
of the Township. Though "a public office has no duty to provide records that do not exist,
or that it does not possess;" Viola, 2021-Ohio-4210 at ¶ 22, citing State ex rel. Gooden v.
Kagel, 138 Ohio St.3d 343, 2014-Ohio-869, ¶ 5, 8-9; a governmental entity "cannot conceal
information concerning public duties by delegating these duties to a private entity." State
ex rel. Cincinnati Enquirer v. Krings, 93 Ohio St.3d 654, 659 (2001). See also State ex rel.
Gannett Satellite Info. Network v. Shirey, 78 Ohio St.3d 400, 403 ("the open-record law
[cannot] be circumvented by the delegation of a public duty to a third-party, and these
documents are not any less a public record simply because they were in the possession of
[a private entity]"). Records maintained by a private entity are nonetheless "public records"
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under R.C. 149.43 where (1) [the private entity] prepare[s] the records in order to carry out
a public office's responsibilities, (2) the public office * * * [is] able to monitor the private
entity's performance, and (3) the public office * * * [has] access to the records for this
purpose." Krings at 657.
{¶40} Here, the Township, authorized by R.C. 9.03(B), used public funds and
contracted with a private entity, the printer, to have the newsletters mailed to all Township
addresses. Though the printer, a private entity, was responsible for creating and
maintaining the mail distribution list, the Township had to be able to monitor the printer's
performance and ensure mailing occurred before paying the printer for its services. The
mailing list, therefore, came under the jurisdiction of the Township.
{¶41} Nonetheless, Hicks has failed to present evidence demonstrating the third
part of the three-part tests for records under R.C. 149.011(G). Hicks has not demonstrated
that the mailing list serves to document the organization, functions, policies, decisions,
procedures, operations, or other activities of the Township. Rather, the addresses that
comprise the mailing list represent contact information used as a matter of convenience in
distributing the newsletters. See Johnson, 2005-Ohio-4384 at ¶ 25; Bond, 2002-Ohio-7117at ¶ 12. Compare State ex. rel. Harper v. Muskingum Watershed Conservancy Dist., 5th
Dist. Tuscarawas No. 2013 AP 06 0024, 2014-Ohio-1222 (finding the names and billing
addresses of those engaged in business with the Watershed District were public records as
they documented the rental and leasing functions of the government); State ex rel.
Cincinnati Enquirer v. Jones-Kelley, 118 Ohio St.3d 81, 2008-Ohio-1770 (stating the names
and addresses of foster caregivers were public records as they documented the
Department of Job and Family Services' function of certifying and maintaining foster
caregivers). The mailing addresses do not provide any insight into the Township's
newsletter program beyond that already available from accessing the newsletter itself or
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from accessing the Township's policies regarding the creation and distribution of the
newsletter. See Bond at ¶ 11. We therefore find that the mail distribution list for the
newsletters is not a public record as defined by R.C. 149.011(G) and is not subject to
production by the Township under R.C. 149.43. The Court of Claims did not err in denying
Hicks' request for production of the addresses comprising the mail distribution list.
{¶42} Accordingly, for the reasons stated above, we find that the Court of Claims
did not err in denying Hicks' public records request for the email distribution list or the mail
distribution list for the Township's newsletter. Hicks' sole assignment of error is overruled.
{¶43} Judgment affirmed.
S. POWELL, P.J., concurs.
M. POWELL, J., concurs in part and dissents in part.
M. Powell, J., concurring in part and dissenting in part.
{¶44} I agree with the majority that both the email and mail distribution lists are
"documents, devices, or items" under the jurisdiction of the Township and that the issue in
this appeal concerns whether the email and mail distribution lists serve to document the
"functions, policies, decisions, procedures, operations, or other activities" of the Township
as provided in R.C. 149.011. I also agree with the majority that the email distribution list
does not serve to document the "functions, policies, decisions, procedures, operations, or
other activities" of the Township and is, therefore, not a public record.2 However, for the
reasons detailed herein, I disagree with the majority's holding that the mail distribution list
2. There was no evidence to suggest that the email distribution list resulted from anything other than requests
from a member of the public and that the Township sent a digital version of the newsletter to those who had
requested a digital newsletter. In this respect, the email distribution list was only a "contact list" and the names
and email addresses of the recipients do not document "the organization, functions, policies, decisions,
procedures, operations, or other activities of the office." The mail distribution list, on the other hand, results
from a decision of the Township.
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is not a public record under R.C. 149.011(G).
{¶45} R.C. 9.03(B) authorizes a political subdivision to "publish and distribute
newsletters * * * to communicate information about the plans, policies, and operations of
the political subdivision to members of the public." The Township elected to exercise its
authority under R.C. 9.03(B) to implement a newsletter program. According to Township
Administrator Susan Ayers, "[t]o the best of my knowledge, the newsletter was not started
by a Trustee resolution." The Township distributes the newsletter by ordinary mail and
email. Hicks is concerned that the Township is "selectively distributing its approved
messages, omitting parts of the community, or shadow-banning some members of the
community." Hicks requested that the Township provide him copies of its mail and email
distribution lists for the newsletter. The newsletter which the Township distributes by
ordinary mail is addressed to "Our friends at" and is therefore sent to an address, not a
person. Thus, the mail distribution list consists only of addresses without associated names
and contains no more personal information than may be gleaned from recording addresses
as one walks down the street. Hicks contends that disclosure of the mail distribution list
would serve the purposes of R.C. 149.43 because it would permit him to monitor the
Township's distribution of the newsletter. The newsletter is not a routine administrative
communication incident to some other primary function of the Township, but a Township
sanctioned communication to members of the public. Distribution of the newsletter is an
integral aspect of the newsletter program as the means by which the Township
communicates its message to the public. The mail distribution list would reveal the
addresses to which the Township mails the newsletter and thus document the distribution
aspect of the program.
{¶46} In holding that the mail distribution list is not a public record subject to
disclosure, the majority relies upon the Ohio Supreme Court's opinions in Johnson, Bond,
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and McCleary. In each of those cases, the supreme court held that the relator was not
entitled to a writ of mandamus to compel the production of records which included private
addresses. The supreme court held in each of the cases that the personal information
sought did not satisfy the R.C. 149.011(G) definition of "records."
{¶47} It is clear from Johnson, Bond, and McCleary that private addresses
maintained by a public office do not enjoy a special protected status under Ohio's public
records statutes and jurisprudence. The writs were denied in those cases, not because the
requests involved private addresses, but because the addresses did not serve to document
the "functions, policies, decisions, procedures, operations, or other activities" of the
respective public offices. None of those cases established a bright-line rule that private
addresses maintained by a public office are not records under R.C. 149.011(G). The
holding in Johnson was that "in general, state-employee home addresses are not 'records'
under R.C. 149.011(G) and 149.43 because they do not document the organization,
functions, policies, decisions, procedures, operations, or other activities of the state and its
agencies." (Emphasis added.) State ex rel. Dispatch Printing Co. v. Johnson, 106 Ohio
St.3d 160, 2005-Ohio-4384, ¶ 1. Johnson further acknowledged that state-employee home
addresses may be considered public records in other circumstances: "When one of the
employment requirements is that the employee live within a certain state, county, or
municipality, that portion of the home address constitutes a record for purposes of the Public
Records Act." Id. at ¶ 39. In a case decided after Johnson, Bond, and McCleary, the
supreme court held that a database containing the names and addresses of foster
caregivers maintained by the Ohio Department of Jobs and Family Services ("ODJFS") is
a public record under R.C. 149.011(G). State ex rel. Cincinnati Enquirer v. Jones-Kelley,
118 Ohio St.3d 81, 2008-Ohio-1770. See also State ex rel. Harper v. Muskingum
Watershed Conservancy Dist., 5th Dist. Tuscarawas No. 2013 AP 06 0024, 2014-Ohio-
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1222, ¶ 8 (noting that the Johnson's holding "did not extend to addresses in general"). Thus,
resolution of whether a database of private addresses kept by a public office is a "public
record" hinges upon whether the office's use and maintenance of addresses document the
organization, functions, policies, decisions, procedures, operations, or other activities of the
office.
{¶48} Furthermore, the fact that the information requested by Hicks consists of
addresses does not lead only to a conclusion that the records are mere "contact
information" maintained and used solely as an administrative convenience. As discussed
above, the supreme court held that a database containing the names and addresses of
foster caregivers is a public record under R.C. 149.011(G) because it documents the
ODJFS's activities in the certification of foster caregivers. Jones-Kelley at ¶ 7. Additionally,
the Fifth District Court of Appeals in Harper rejected a conservancy district's argument that
the addresses of persons leasing property from the district were not public records subject
to disclosure, finding that the records shed light on the district's billing practices. Harper at
¶ 11. Like the case at bar, the addresses of the foster caregivers in Jones-Kelly and the
lessees in Harper certainly promoted administrative efficiency in the certification of the
caregivers and the billing of the lessees. Nonetheless, the addresses were found to be
public records because they also documented the ODJFS's certification of foster caregivers
and the conservancy district's billing practices. The same reasoning applies to the
Township's mail distribution list because it facilitates public oversight of the distribution
aspect of the newsletter program.
{¶49} The upshot of Johnson, Bond, and McCleary is that records maintained solely
as an administrative incident of some other primary function do not "document the
organization, functions, policies, decisions, procedures, operations, or other activities of the
office" and are not public records. Indeed, in most instances, private addresses maintained
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by a public office and used for routine communications with the addressees will not
document the "organization, functions, policies, decisions, procedures, operations, or other
activities of the office." However, as discussed below, the mail distribution list is more than
an administrative convenience in the Township's operation of the newsletter program.
{¶50} The gist of the majority opinion is that the mail distribution list is not a public
record because it is maintained by the Township for administrative convenience in the
mailing of the newsletter. To be sure, promotion of administrative convenience is a purpose
for which government maintains many of its records. Certainly, the mail distribution list
serves to promote administrative convenience in the mailing of the newsletter. However,
that is not determinative of whether the mail distribution list is a "record" under R.C.
149.011(G). That a record promotes administrative convenience does not mean that it may
not also "document the organization, functions, policies, decisions, procedures, operations,
or other activities of the office." These concepts are not mutually exclusive. The supreme
court recognized this in Bond: "To the extent that an item does not serve to document the
activities of a public office, it is not a public record and need not be disclosed." State ex rel.
Beacon Publishing Co. v. Bond, 98 Ohio St.3d 146, 2002-Ohio-7117, ¶ 29. There is nothing
in the language of R.C. 149.011(G) suggesting that records that promote administrative
efficiencies are excluded from the definition of "records," without regard to whether the
record documents the organization, functions, policies, decisions, procedures, operations,
or other activities of the public office. The supreme court in Johnson and Bond did not hold
that the requested records were not public records because they promoted administrative
efficiency, but rather because the information did not document the activities of the public
office. Nor did the supreme court hold in those cases that a record could not promote
administrative efficiency and also document the organization, functions, policies, decisions,
procedures, operations, or other activities of the office. To be clear, the analysis of whether
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a record is a public record is concerned not with whether the record promotes administrative
convenience but with whether the record documents the activities of the public office. Thus,
the administrative convenience component of the Township's maintenance and use of the
mail distribution list does not make it any less a public record to the extent that it documents
the Township's operation of the newsletter program. The mail distribution list, despite being
maintained for administrative convenience in the mailing of the newsletter, also
memorializes the addresses to which the Township is mailing the newsletter and therefore
documents this aspect of the newsletter program. Indeed, in view of Ayers' affidavit
averment that she is unaware of any "Trustee resolution" establishing the newsletter
program, the mail distribution list may be the best, if not the only, record documenting the
Township's distribution of the newsletter.3
{¶51} Hicks expresses concerns that the Township is operating the newsletter
program in a manner which targets or excludes certain communities or persons. The
Township asserts that its newsletter is mailed to all addresses within Union Township.
However, Hicks is not obliged to accept the Township's contention at face value in lieu of
his records request. The mail distribution list would permit Hicks to monitor whether the
Township is operating its newsletter program as he fears or as contended by the Township.
"Inherent in Ohio's Public Records Law is the public's right to monitor the conduct of
government." State ex rel. McCleary v. Roberts, 88 Ohio St.3d 365, 369 (2000); Johnson,
2005-Ohio-4384 at ¶ 27. Disclosure of the Township's mail distribution list would shed light
on and provide further insight into which addresses receive the Township's newsletter,
3. In asserting that the mail distribution list does "not provide any insight into the Township's newsletter
program beyond that already available from accessing the newsletter itself or from accessing the Township's
policies regarding the creation and distribution of the newsletter," the majority opinion suggests that Hicks'
concerns may be satisfied by resort to other records. Assuming there are other records documenting
distribution of the newsletter, that redundancy does not render the mail distribution list any less a public record
to the extent it documents the Township's operation of the newsletter program.
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would help monitor the conduct of the Township, and would further the purposes of R.C.
149.43.
{¶52} In summary, the newsletter is an official communication from the Township to
members of the public. Distribution of the newsletter is a fundamental aspect of the
operation of the program. The mail distribution list contains the addresses to which the
newsletter is mailed. Disclosure of the mail distribution list promotes the purposes of R.C.
149.43 because it documents the addresses to which the Township mails the newsletter
and permits Hicks to monitor this fundamental aspect of the newsletter program. Based
upon the foregoing, I find that the mail distribution list is a public record. I would therefore
reverse the Court of Claims' denial of Hicks' request to inspect or receive the mail
distribution list.
{¶53} With respect and regard for my colleagues in the majority, I dissent from the
majority's decision holding that the mail distribution list is not a public record under R.C.
149.011(G).
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