Authors: Jack Greiner and Zoraida Vale, Graydon Head & Ritchey
We heard a joke the other day that went something like this. Q: “What’s the best way to keep your violin from being stolen?” A: “Put it in a viola case.” Did we mention we heard the joke on NPR? Somewhere, some classical music buffs are laughing hysterically.
But the joke illustrates an important point. Sometimes two things that look similar are actually quite different. And so it is with discovery and public records requests.
Civil Litigation Discovery vs. Public Records Request
In civil litigation, one party may request from the other party information related to the case. Although there are various methods, the process is called generally “discovery.” One of those methods is the “document request.” The document request is self-explanatory: the requesting party provides the other party with a list of documents it wishes to inspect. The request may seek specific records (“the company’s employment policy manual”) or may describe the records more generally (“all e-mails related to Smith’s termination”).
The Ohio Public Records Act is similar. Any member of the public may request from a public office records relating to the activities of that office. The Revised Code provides a broad definition of the term “public record” and case law has further refined the meaning.
And while a document request in civil litigation resembles a public records request, the two are not identical. There are significant differences. These differences include the following.
Relationship between the Parties
- Discovery arises in litigation, which is by definition an adversarial relationship. It is in the interest of the party receiving the discovery request to provide the minimum amount of information permitted.
- A public records request involves a member of the public asking a public servant to provide public information. It is by definition and design not R.C. 149.43(B)(1) requires that all responsive records be “promptly prepared and made available for inspection.”
Duties of Parties
- A party in litigation has no duty beyond providing the minimum amount of discovery consistent with the Rules of Civil Procedure.
- A public office has a duty of transparency. The public office must ensure the Public Records Act is applied liberally. Courts too must construe the Public Records Act liberally in favor of broad access and resolve any doubt in favor of disclosure of public records.[1]
Duty of Lawyer
- Discovery – The lawyer representing a party must limit production to relevant material, reasonably calculated to lead to the discovery of admissible evidence.
- Public Record – The public office has no duty to minimize production. Even if public records are not requested – they are still public records. Thus, there is no downside to over
“Relevancy” Irrelevant
- Discovery – In discovery, the requested material must have some relation to the underlying case. At a minimum the request must be “reasonably calculated to lead to the discovery of admissible evidence.” Thus, the party receiving the request has the right to require the other side to explain why they are requesting the information. If the requesting party cannot articulate how the requested material is “reasonably calculated to lead to the discovery of admissible evidence,” the requesting party is not entitled to the information.
- Public Records – There is no such acid test with public records. The public is entitled to inspect and copy the records simply because they are public records. There is no need to explain how the request is relevant to any topic. In addition, the Public Records Act expressly forbids the public office (other than in limited circumstances) from even asking the requesting party for a written request, the party’s identity, or the intended use of the records.[2]
Ownership of the Records
- Fundamentally, a discovery request asks another party to produce that party’s records.
- In a public records request, the requesting party is asking to see its own So while a discovery request seeks permission to review records, a public records request asks not for permission, but merely that the public office facilitate the inspection.
“Overbreadth”
- The Ohio Rules of Civil Procedure permit a court to issue a “protective order” if complying with a discovery request imposes an “undue burden.” Moreover, the definition of relevancy—“reasonably calculated to lead to the discovery of admissible evidence”—protects against an unreasonably overly broad discovery request.
- Public Records – The Public Records Act contains no language relating to “overly broad” requests. While certain categories of records are exempt from the law due to their particular content, the law does not allow for “protective orders” to guard against “undue burden” or overly broad requests. Indeed, a public office may not include in its records policy any limit on the number of public records it will make available to a single person, nor may it limit the number of public records it will make available during a fixed period of time.[3]
Inherent Nature of Public Records
- Discovery – Records maintained by private parties are not public by nature and only need to be produced pursuant to a court order that reasonably limits the scope of the production.
- Public Records – By their very nature a public office is required to make public records available to the public because the public office generates the records and thus the records belong to the public.
Assistance in Seeking Records
- Civil litigants do not need to assist their adversaries with information on how their records are maintained and accessed.
- The Public Records Acts requires the public office to assist the requester in making the request. The public office must assist a requester by informing the requester of the manner in which the records are maintained and accessed in the ordinary course of the public office’s duty.[4]
Differences Conflated in Ohio Courts
Unfortunately, despite these differences, Ohio courts have increasingly applied “discovery-like” limitations on public records requests. This is a disturbing trend for a number of reasons.
The trend stems from an admittedly common sense admonition—a public records requester is not entitled to simply request duplication of every record maintained by a public office.[5] But courts have taken that narrow rule against “kitchen sink” requests and expanded it far beyond its intended limited scope.
In State ex rel. Carr v. London Corr. Inst.,[6] a prisoner sought records maintained by a state prison. Specifically, the prisoner asked the prison to produce “copies of all e-mails and interoffice memo’s [sic] sent from Chaplin Cahill, to the mail room (including it’s supervisor’s [sic]) during the months of January and February 2012,” and a “copy of all inter-office memos and e-mails sent by Chaplain Cahill to the mail room or it’s [sic] supervisors for the month of February 2012.” The prison denied the request, stating it was ambiguous, overbroad and burdensome to produce and thus not required to produce.
The court held that the prison properly denied the requests. The court held that because the requests “asked for everything” and did not offer any “specific reference to a particular work-related activity,” the requests were overly broad. However, unlike discovery requests, a request for public records does not need to be narrowly tailored and relate to a specific topic. Because public records belong to the public, there is no harm in producing the entire body of records requested.
Additionally, the Public Records Act does not require the requester to pinpoint the exact documents it is seeking. Typically, the requestor is not sure what records exist. Such a requirement would make it largely impossible for the public to obtain public records. And the public records request in Carr was in no way a “kitchen sink” request. It asked for a limited population of records created over a very limited period of time. The records could have been collected with a very simple computer search.
The court’s ruling may have been appropriate in the civil discovery context, but it makes no sense in the Public Records context.
In State ex rel. Verhovec v. Northwood,[7] the requester sought all of the digital images of the city’s traffic photo enforcement program over its entire six-year existence. The court held the request was overly broad because the requester wanted all records over the entire time the program existed. While discovery requests must be limited to a relevant time period, a public office cannot restrict the number of public records requested. Furthermore, while the court referenced R.C. 149.43(B)(2), it only cited it for the proposition that the public office can deny ambiguous and overbroad request, but not for the public office’s duty to cooperate with the requester to fulfill the request.
In State ex rel. Zidonis v. Columbus State Community College,[8] requester sought all “litigation files” and “complaint files” and “copies of e-mails sent between Sunday Zidonis and Deborah Coleman . . . .” The court found that whole categories of litigation and complaint files, without limitation to topic or period of time, was overly broad and a complete duplication of records. And it deemed the request for an entire method of communications (i.e., email) was similarly overly broad. But again, unlike discovery, a requester does not need to limit his request for a particular group of documents into further subtopics. Relevancy, or the number of documents requested, is not a consideration in a public records requests.
In Salemi v. Cleveland Metroparks,[9] the requester sought documents from Cleveland Metroparks regarding golf courses under its operation. The court held that the request for checks, contracts, agreements, minutes of meetings, emails, and letters that relate to the marketing of the golf courses was overly broad because the request was not limited to a specific time period. In discovery, parties can limit the timeframe from which they produce documents to the period of time relevant to the parties’ dispute. But in a public records request, there is no dispute between the requester and the public office that requires requests to be limited to a certain period of time.
And recently, NARAL Pro-Choice filed a lawsuit after the Ohio Department of Health refused to produce public records pertaining to two years of emails to representatives of Ohio Right to Life and one year of phone records for calls made to two telephone numbers belonging to Ohio Right to Life. The Health Department claimed that the request was overly broad. The Ohio Supreme Court has stayed the matter while the parties attend mediation.
If mediation breaks down and the Ohio Supreme Court hears NARAL’s complaint, the Court will have the opportunity to pull back the strings on the lower courts continuous misapplication of the Public Records Act. But if the Ohio Supreme Court does not address the issue, or decides to uphold the Health Department’s claim that NARAL’s requests are overly broad, it will continue on the trend of applying discovery like limitations to public records requests.
It is truly unfortunate that Ohio courts have applied a civil discovery concept to the world of public records. While there are similarities between a discovery request and a public records request, there are compelling reasons why they are different. By grafting the discovery concept onto a public records request courts are not only muddying the waters, they are putting public records outside the reach of the public. And that is no joking matter.
[1] State ex rel. Miller, 136 Ohio St.3d 350, 2013-Ohio-3720, ¶14 (quoting State ex rel. Rocker v. Guernsey Cty. Sheriff’s Office, 126 Ohio St.3d 224, 2010-Ohio-3288, ¶6).
[2] R.C. 149.43(B)(5).
[3] R.C. 149.43(E)(1).
[4] R.C. 149.43(B)(2).
[5] State ex rel. Warren Newspapers, Inc. v. Hutson, 70 Ohio St.3d 619, 624, 1994-Ohio-5.
[6] 12th Dist. No. CA2012-10-023, 2014-Ohio-1325.
[7] 6th Dist. NO WD-13-002, 2013-Ohio-5074.
[8] 10th Dist. No. 10AP-961, 2011-Ohio-6817, aff’d, State ex rel. Zidonis v. Columbus State Cmty. College, 133 Ohio St.3d 122 (2012).
[9] 12th Dist. No. CA2012-10-023, 2014-Ohio-1325.
