In the mid 1960's, the Batman TV series was a sensation. In its first two seasons, it ran two nights a week. It was sloppily written and poorly acted, but I loved every minute of it. A feature of the show was the "bat signal," a bright light that Commissioner Gordon or Chief O'Hara would shine into the sky to alert Batman that Gotham City was in danger. I bring this up because I am sending up a bat signal to the Ohio General Assembly to save the Public Records Act and ensure governmental transparency. Who among them will be the superhero?
The Ohio Supreme Court decided a case in June of this year called "The State ex rel. Platt v. Montgomery County Board of Elections." Without going into too much detail, the case arose from some shenanigans of the Montgomery County Board of Elections, which was considering whether a woman named Mary McDonald was qualified to be on the Republican Primary ballot to run for a County Commission seat. On January 10, 2024, the Montgomery County Prosecutor’s Office sent a memo by email to the four Board members, the board’s director, Jeff Rezabek, and its deputy director, Russell Joseph. Shortly after receiving the email from the prosecutor’s office, Joseph forwarded the email—with the memo attached—to his personal email account. Joseph then forwarded the memo from his personal email account to Mohamed Al-Hamdani, the chairman of the Montgomery County Democratic Party. Al-Hamdani forwarded it to Dennis Lieberman. Lieberman is the husband of Debbie Lieberman, who at that time held the commissioner seat to which McDonald was seeking election.
Joseph Platt requested a copy of the email chain. The Court granted his request, but only in part. The Court ruled that the email Joseph sent on January 10, 2024, from his personal email account by which he forwarded the memo to Al-Hamdani was not a public record. The Court reasoned that because a public record is one that is "kept" by a public office, the email from Joseph's personal account was not public because the Board didn't "keep" it. The Court seemed to miss the notion that Joseph is an agent of the Board, so it was kept by the Board. Platt filed a motion to reconsider, but the Court dug in its collective heels and denied it.
The decision effectively overturns a 2019 decision from the Ohio Court of Claims that any communications, whether they be on a public or private device, are public record if they relate to public business. In that case a "gang of five" Cincinnati Council members sent text messages about council business on private cell phones. Why the Supreme Court upset this sensible status quo is a mystery. But the Supreme Court ruling is an open invitation to public officials to hide their activities from the public simply by using their personal devices.
But this column is not intended to relitigate the issue. The ruling is the law for now. And this is where the bat signal comes in. The Ohio General Assembly needs to fix this untenable situation. All it would take is a tweak to the definition of "public record" found in Revised Code 149.43. That statute currently says: "Public record" means records kept by any public office . . ." Just tack on a sentence that says: "Records are 'kept by a public office' if they are stored on a personal device of any agent of the public office."
As Robin, the Boy Wonder would say "holy transparency Batman!"
