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I. Introduction
Plaintiffs are not entitled to a temporary restraining order because all the City is
doing and has done is comply with the Ohio Public Records Act as written by the Ohio
General Assembly, as interpreted by state courts, and as demanded by the public. It has—
to the extent permitted by current law—respected the dueling values of a right to privacy
the facts underlying this case as well as a misunderstanding of the requirements of the
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Ohio Public Records Act. The actions of the City Solicitor’s office on behalf of its
II. The City has complied with the public records act
Although Plaintiffs imply otherwise, all the City has done is comply with the Public
Records Act. It cannot rewrite the Public Records Act. It cannot control the requests it
receives. And it cannot dictate how those records are reported on in the media. All it can
do is attempt to fulfill its duties while mitigating risk of loss of taxpayer dollars.
Ohio public records law defines a record as “any document, device, or item,
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
other activities of the office.” R.C. 149.011(G). Public records are “records kept by any
Public records are not limited to communications between elected officials, or even
any public official even if intended to be confidential are public record when a public office
could rely on it when making determinations. Chernin v. Geauga Park Dist., 2018-Ohio-
1579 (Ct. of Claims), ¶¶ 12-15. In Chernin, the Geauga Park District did not release a letter
because the author specifically asked the park commissioner to keep her identity hidden
because she was “in fear of harassment,” yet the court still found it was subject to release.
Id. at ¶¶ 12, 20. The law makes no distinction based on the location of a communication
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either. The communication’s content makes it public record. Even public records located
on personal cell phones or in private email accounts remain public records subject to
disclosure. See Sinclair Media v. City of Cincinnati, 2019 Ohio Mis. LEXIS 218 (Ct. of
Interactions with local government that many people would prefer to keep private
are similarly public record. In close cases, the Ohio Supreme Court has instructed that
doubts must be resolved in favor of disclosure. State ex rel. Cincinnati Post v. Schweikert,
38 Ohio St.3d 170, 173 (1988). For example, law enforcement is not permitted to redact
911 calls, even if they contain the caller’s social security number. State ex rel. Cincinnati
exemptions were not addressed by the legislature until April 2019, long after they were in
More than that, neither Ohio courts nor records custodians are permitted “to
privacy concerns.” State ex rel. WBNS TV, Inc. v. Dues, 101 Ohio St.3d 406, 411 (2004)
(explaining that the General Assembly specifically rejected the Ohio Supreme Court’s
privacy balancing test). Of course, if the City does not comply with the Public Records Act,
it risks a judgment against it, including an award of attorney’s fees. R.C. 149.43(C). These
Finally, Ohio law also mandates that public records may only be destroyed
retention schedule, the public entity is not permitted to delete it until the records
retention schedule is updated. Wagner v. Huron County Bd. of County Comm’rs, 2013-
Ohio-3961 (6th Dist.), ¶ 17. Moreover, if a record, like an email, is improperly deleted, the
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public entity is responsible, at its own cost, to recover the deleted material, and no
pleading of “too much expense” justifies noncompliance with the Public Records Act.
State ex rel. Toledo Blade Co. v. Seneca County Bd. of Comm’rs, 120 Ohio St.3d 372, 383
(2008).
Shortly after the Ohio Court of Claims released a decision finding that text
messages on private cell phones can be public record if they discuss City business, the City
received a deluge of requests, including one from Brian Shrive who purported to be
requesting certain records on behalf of a client. Exhibit B. The City worked to produce
responsive records—those which documented the activities of the various Council offices
involved in the request. The responsive text messages it produced to Shrive are Exhibits
C, D, and E. Importantly, Plaintiffs have not made any allegation that the messages
None of the factors to receive a temporary restraining order are in Plaintiffs’ favor.
First, they cannot establish a substantial likelihood of success on the merits because the
voluntary compilation of the Councilmembers’ text messages did not violate the rights of
the Plaintiffs. Second, there is no evidence of irreparable harm. Third, there is harm to
third parties because a restraining order could cause the City to violate the public records
Plaintiffs do not have standing to contest a Fourth Amendment violation for text
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transparency. Additionally, Plaintiffs have not raised a cognizable due process claim, and
because they do not have standing to raise a Fourth Amendment claim against the City
for text messages they sent to City Councilmembers. To establish a Fourth Amendment
expectation.” United States v. Smith, 263 F.3d 571, 583 (6th Cir. 2001). In general, the
sender of a communication only has a reasonable expectation of privacy until the message
is received. United States v. King, 55 F.3d 1193, 1195 (6th Cir. 1995) (holding no
expectation of privacy in letters once they are delivered). This is true even if the sender
directs the recipient to keep the letter private. Id. Courts have continued to apply this
Charbonneau, 979 F.Supp. 1177, 1184 (S.D. OH 1997) (noting that once a message is
received, the control of it lies with the recipient, not the sender). Courts have applied a
similar rationale to text messages. United States v. Gardner, 887 F.3d 780,784 (6th Cir.
2018) (applying third-party consent doctrines to cell phone text messages); State v.
Patino, 93 A.3d 40 (R.I. 2014)(holding that a person does not have an expectation of
privacy in texts found on someone else’s phone); State v. Tentoni, 2015 WI App 77 (WI
App. 2015), ¶¶ 9-11 (holding that no privacy in text messages received by someone else).
Here, Plaintiffs have not offered any evidence that their own phones were copied
by the City; rather, they argue they did not consent to their messages being replicated.
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That argument is fundamentally flawed because once the Plaintiffs sent the messages that
were received by the Councilmembers, they lost all Fourth Amendment privacy
expectations associated with the content of the messages. More than that, to the extent
that any Plaintiffs discussed City business with City officials, their reasonable expectation
Plaintiffs will no doubt reply that recent United States Supreme Court cases have
overruled this precedent. They did not. While Riley v. California does expound upon the
amount of information today’s cell phones contain, it is properly read solely as limiting
warrantless searches incident to arrest and no more. 573 U.S. 373 (2014). Moreover, in
the five years since its release, the Sixth Circuit has not overruled or questioned the
essential holding of King as applied to texts. Similarly, the Court in Carpenter explicitly
stated that “Our decision today is a narrow one.” Carpenter v. United States, 138 S.C.
2206, 2220 (2018). The Court explained that the third-party doctrine did not apply to cell
phone location data in part because it is shared constantly with the cell provider with little
to no action by the person. Id. at 2219-2220. Here, sending a text message to another
person is a voluntary act that requires actual thought and action by the sender. The
As Plaintiffs cannot establish standing for Fourth Amendment purposes, they also
Plaintiffs’ First Amendment claim also fails. Here it is important to put the First
Amendment claim in context. This is not a claim of compelled speech—no one required
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Councilmembers. NAACP v. Alabama, 357 U.S. 449 (1958). Neither is the City requiring
Plaintiffs to turn over any information about them or their associations in order to receive
a permit. Balew v. Giles County Adult-Oriented Establishment Bd, 2005 U.S. Dist. LEXIS
46996 (M.D. TN 2005). Rather, the City Solicitor’s Office has acted on behalf of its clients
to take steps to avoid unintentional destruction of public records and assist in compliance
with Ohio Public Records law. It appears that Plaintiffs are arguing that even by retaining
But Plaintiffs’ arguments rest on a faulty premise: that the Councilmembers will
message that is not a public record. And even assuming that an associational right is
“One of the salutary purposes of the Public Records Law is to ensure accountability of
government to those being governed.” Kallstrom v. City of Columbus, 136 F.3d 1055,
1065 (6th Cir. 1998), citing State ex rel. Strothers v. Wertheim, 80 Ohio St.3d 155 (1997).
As Plaintiffs cannot establish the City has or will reveal non-public record, its First
Amendment case for support. In order to establish a procedural due process violation,
Plaintiffs must first identify a life, liberty, or property interest protected by the Due
Process Clause. Doe v. Ohio State, 136 F.Supp. 3d 854, 866 (S.D. OH 2016). Plaintiffs
have not identified the interest that is at stake by the City’s actions. And while it is true
that the Sixth Circuit has recognized a protected privacy interest that prohibits some
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information from release under public records law, that type of information is not at issue
here. Kallstrom v. City of Columbus, 136 F.3d 1055 (6th Cir. 1998).
nondisclosure only where the release of information would rise to the level of threatening
the personal security and bodily integrity of the police officers involved. Id. at 1064.
Plaintiffs have made no argument that their personal security or bodily integrity is at
stake, unlike the police officers in Kallstrom who reasonably feared for their safety if gang
members received their identities. Id. at 1065. At most, Plaintiffs have identified
information they assert the City possesses that would not constitute public record. And if
the information is not subject to disclosure under the public record act, then the City will
Plaintiffs’ argument is similar to the one raised in Doe v. Ohio State. 136 F.Supp.
3d 854, 869 (S.D. OH 2016). In that case, the Court declined to issue a preliminary
injunction prohibiting Ohio State from investigating Doe. Id. Doe was concerned that
records of the investigation might be disclosed in the future. Id. The Court rejected Doe’s
speculation as a basis for an injunction, finding that FERPA prohibited the release of the
records that would be created. Id. Similarly, Plaintiffs have only presented the Court with
the same type of speculation. It should be rejected, and the injunction request should be
denied.
2744.02(A)(1); see also Sollenberger v. Sollenberger, 173 F.Supp. 3d 608, 627 (S.D. OH
2016). And even if immunity did not apply, Plaintiffs cannot establish an invasion of
privacy claim because the City’s actions were not done in a way that would “outrage or
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v. Zang, 2018 U.S. Dist. LEXIS 58753 (S.D. OH 2018). Therefore, Plaintiffs have no
speculation and baseless conspiracy claims. The Plaintiffs only speculate that the City will
release non-public record communications with Councilmembers. They also imply that
the City would do this without its client’s consent to further some kind of conspiracy with
Mr. Shrive.
Nothing could be farther from the truth. The Court should reject this notion out of
hand.
City has done to date is respond to public records requests by producing responsive public
records, yet Plaintiffs have still brought this suit. This indicates that they have a different
idea of what is public record (likely one that is unsupported by Ohio law). Therefore,
contrary to their assertions, this restraining order will touch on the City’s ability to
respond to public records requests within the reasonable amount of time required under
the law. The Sixth Circuit has indicated that access to government information is a
compelling interest. See Kallstrom v. City of Columbus, 136 F.3d 1055, 1065 (6th Cir.
Court issues an injunction. Therefore, these factors both weigh against issuance of an
injunction.
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IV. Conclusion
The City has complied with the law and not violated anyone’s constitutionally
recognized privacy rights. The Court should deny Plaintiffs’ motion for a temporary
restraining order.
Respectfully submitted,
CERTIFICATE OF SERVICE
I hereby certify that on July 2, 2019, a true and accurate copy of the foregoing was
filed electronically. Notice of this filing will be sent to all parties by operation of the Court’s
electronic filing system. No copies of this filing are being mailed to any parties, as all
parties are currently being served via the Court’s electronic filing system and thereby may
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