1. What kind of records are covered?

All "public records" are available for public inspection and copying. A "public record" is any record that is "kept by any public office." Ohio Rev. Code § 149.43(A),(B). A "record" is "any document, device, or item . . . which serves to document the organization, functions, policies, decisions, procedures, operations, or other activities of the office." Ohio Rev. Code § 149.011(G).

The statute used to define "public record" as those records required by law to be kept by a public office, but the Ohio General Assembly amended the statute to delete that language. The statute now defines "public record" as simply "records kept by any public office," which broadens the scope of what kinds of records qualify as public records.

Notwithstanding that legislative amendment, the Ohio Supreme Court has ruled that a variety of recorded information kept by a public office fails to qualify as a "record" under Ohio Rev. Code §  149.011 (G), and therefore cannot be a "public record." The court ruled that unsolicited letters received and read by a judge in which the authors advocated leniency in the sentencing of a convicted rapist did not count as "records" because the judge testified that she did not base her subsequent sentencing decision on anything in the letters. State ex rel. Beacon Journal Publishing Co. v. Whitmore, 83 Ohio St. 3d 61 (1998). See also State ex rel. Sensel v. Leone, 85 Ohio St. 3d 152, 707 N.E.2d 496 (1999) (reinstating trial court's judgment that unsolicited letters from parents received and read by public school superintendent and high school principal, which criticized and praised controversial high school basketball coach, were not "records" and could be thrown away at the sole discretion of the public school officials).

A city employee's personal handwritten notes were not "records" because they were taken for his own convenience, were not kept as part of the city's official records, and no other city officials had access to or used the notes. State ex rel. Cranford v. Cleveland, 103 Ohio St. 3d 196, 814 N.E.2d 1218 (2004).

Jury questionnaire questions are "records," but the responses are not "records" because the court does not use the answers "in rendering its decision, but rather collect[s] the questionnaires for the benefit of litigants." State ex rel. Beacon Journal Publ'g Co. v. Bond, 98 Ohio St. 3d 146, 781 N.E.2d 180 (2002) (ordering disclosure of the questionnaire responses, juror names, and juror addresses on constitutional grounds).

State employee home addresses are not "records" because they do not "document the organization, functions, policies, decisions, procedures, operations, or other activities" of the state agencies and are kept by the state only as an administrative convenience. State ex rel. Dispatch Printing Co. v. Johnson, 106 Ohio St. 3d 160, 833 N.E.2d 274 (2005).

The court also ruled that a roster of names and addresses of minors who signed up for a municipal recreation department's voluntary identification-badge program was not a "record." State ex rel. McCleary v. Roberts, 88 Ohio St. 3d 365, 725 N.E.2d 1144 (2000).  But see State ex rel. O’Shea & Assocs. Co., L.P.A. v. Cuyahoga Metro. Hous. Auth., 190 Ohio App.3d 218, 941 n.E.2d 807 (questionnaires and releases which identify children suspected of having been exposed to lead are public records, as they “do not contain the comprehensive personal, family, and medical information described in the records at issues in McCleary.”)

Internal e-mails generated by county employees on county time using county computer systems, which allegedly contained racist epithets, did not qualify as "records" because the e-mails did not document the activities of that county agency. State ex rel. Wilson-Simmons v. Lake County Sheriff's Dept., 82 Ohio St. 3d 37, 693, N.E.2d 789 (1998).

The court has not adopted a clear doctrinal interpretation of the threshold statutory term, "record." To qualify as a "record," the court seems to require that the recorded information be clearly linked to functions of a public office that state or local law requires the office to undertake.

A "record" does not lose its status as a "public record" though its possession is transferred to a private party. The statute allows a mandamus action against either the public office or the person responsible for a public record. Ohio Rev. Code § 149.43(C). "[T]he disjunctive used in R.C. 149.43(C) manifests an intent to afford access to public records, even when a private entity is responsible for the records.” State ex rel. Mazzaro v. Ferguson, 49 Ohio St. 3d 37, 550 N.E.2d 464 (1990); State ex rel. The Cincinnati Enquirer v. Krings, 2000 Ohio App. LEXIS 5854 (Hamilton App. Dec. 15, 2000) (No. C-000408) ("The respondents in this case cannot play a shell game with public records. The public has a right of access to the records, regardless of where they are physically located, or in whose possession they may be."); State ex rel. Findlay Publ'g Co. v. Hancock Cty. Bd. of Comm'rs, 80 Ohio St. 3d 134, 684 N.E.2d 1222 (1997) (ordering disclosure of settlement agreement when county's attorney possessed the agreement).