Ohio Supreme Court Opines Township Newsletter Lists Are Public Records
Ohio Supreme Court Opines Township Newsletter Lists Are Public Records
Late last week, the Ohio Supreme Court issued their opinion in the matter of Hicks v. Union Twp. Clermont Cty. Bd. of Trustees, a case that centered around whether or not a township’s email list used for township newsletters is a public record. In short, Hicks and Union Township disputed whether email and mailing lists used by the Township to distribute its newsletter “document the organization, functions, policies, decisions, procedures, or operations” of the Township – a necessary element to qualifying the list as a public record.
Siding with Hicks and against Union Township, the Supreme Court reversed the 12th District decision and held that the lists sought by Hicks were public records under R.C. §149.43, and remanded the matter for further proceedings. While the lower courts contended that “the lists represent contact information that the township uses solely as a matter of ‘administrative convenience,’” the Supreme Court disagreed with this characterization.
“Though they are certainly convenient, the email- and mail- distribution lists are not mere ‘administrative conveniences’ used for distributing the township’s newsletter. The lists document the intention behind a regular practice of the township: the distribution of its newsletter.” The Court went on to note that “[t]here is no universal ‘address’ exception found in the Public Records Act,” and that while “[e]xceptions to [the Public Records Act] appear in R.C. §149.43(A)… ‘administrative convenience’ is not among the exceptions listed.”
In a concurring opinion, Justice DeWine noted that “we do not determine whether a mailing list that is maintained by an outside vendor – like the one at issue in this case – satisfies the requirement of the Public Records Act that the record must be ‘kept’ by a public office per R.C. §149.43(A)(1). Thus, our decision has no precedential force on that point.” The concurrence went on to note that “[b]ased on the limited record developed around the [ownership] issue in this case, it is not clear whether the mailing list meets the ownership prong of the test for a public record.”
Justice Fischer, joined by Justice Stewart, dissented from the majority, stating that “the lists in question have no connection to the conduct of state government. As suggested in [State ex re. Dispatch Printing Co. v. Johnson], a township policy delineating the procedures for creating and maintaining a distribution database may document a procedure of a public office, but the home addresses themselves do not do so.”
The Ohio Township Association will be offering a FREE webinar on this issue the week of December 16. Please watch for more details as they become available.