E-mail not public unless it documents official policies

OHIO–E-mail messages between public employees using public electronic mail systems will not be considered public records unless the messages document departmental policies or procedures, the Ohio Supreme Court ruled in late May.

The ruling stems from a lawsuit filed by Trudy Wilson-Simmons, a corrections officer at the Lake County Sheriff’s Department in Painesville. In 1995, Wilson-Simmons asked the department to release the e-mail of five fellow corrections officers for a one-month period, after a colleague told her that several Lake County corrections officers were using the jail’s e-mail system to make racial slurs about her.

The officer was told that although the e-mail was a public record and she had a right to view it, she would have to pay more than $2,500 in charges for a computer specialist to “reconstruct” the e-mail. This was necessary, the department said, because after one day all e-mail is relegated to a back-up system that is not readily accessible without expert “reconstruction.”

Wilson-Simmons subsequently filed a writ of mandamus with the state Supreme Court in Columbus, seeking to compel the sheriff’s department to provide access to the e-mail at a minimal fee.

The court unanimously ruled in late May that the requested e-mail was not a public record. It wrote, “There is no evidence or allegation that the alleged racist e-mail documented sheriff’s department policy or procedures.” The court noted that the Ohio Public Records Act defines “public record” as any item that “serves to document the organization, functions, policies, decisions, procedures, operations, or other activities of the state.”

David Marburger, a Cleveland attorney, wrote in the Ohio Newspaper Association Bulletin that the court’s ruling may have some unintended consequences. “Its logical extension would shield from public scrutiny any documentation, electronic or paper, of improper or even unlawful use of public facilities on public time by public officials simply because the public office did not authorize it. . . . That contravenes one of the public oversight purposes of the Act.”

However, the court said it rejected completely the sheriff’s department assertion that no public e-mail could ever be considered public record. “Sometimes, public office e-mail can document the organization, functions, policies, decisions, procedures, operations, or other activities of the public office.” (Ohio ex rel. Wilson-Simmons v. Lake County Sheriff’s Department; Petitioner’s Counsel: Joseph Compoli Jr. and James Goodluck, Cleveland)