Mail and email distribution lists for a township newsletter are public records, the Supreme Court of Ohio ruled today.

A divided Supreme Court found Union Township in Clermont County was required to turn over the distribution lists for the township newsletter, rejecting the township’s argument that the lists were exempt from the Ohio Public Records Act.

Writing for the Court majority, Justice Michael P. Donnelly explained records that document the functions and procedures of a public office are public, and the distribution lists meet the definition because they reveal how and to whom the township’s newsletter is regularly distributed.

The records were requested in 2022 by Christopher Hicks. The ruling reversed decisions by the Ohio Court of Claims and the Twelfth District Court of Appeals, which found the newsletter, but not the distribution lists, were public records.

Chief Justice Sharon L. Kennedy and Justices Jennifer Brunner and Joseph T. Deters joined Justice Donnelly’s opinion.

Justice R. Patrick DeWine concurred but wrote a separate opinion to caution that the decision is limited. He wrote the Court did not address the question of whether a mailing list maintained by an outside vendor, like the one in this case, necessarily satisfies the requirement that a record be “kept” by a public office. Because the parties in the case did not raise the issue, the opinion should not be read as deciding that point.

In a dissenting opinion, Justice Patrick F. Fischer wrote the lists have no connection to the functions of the township and are not public records. Justice Melody Stewart joined Justice Fischer’s dissent.

Distribution List Request Rejected
In January 2022, Hicks asked Union Township to provide him with the email- and mail-distribution lists for the township newsletter. The township denied the request, telling Hicks the lists do not document the activity and function of the township and are not public records. Hicks filed a complaint with the Court of Claims, arguing the township violated the Public Records Act,  R.C. 149.43. He argued the lists are used to distribute the newsletter to some or all addresses in the township and contain no personal information that would exempt them from disclosure.

The township administrator told the Court of Claims that while township employees craft the newsletter, it is mailed by a vendor that sends the newsletter to all township addresses. Cincinnati Print Solutions, which prints the newsletter, developed and maintained the mailing list in conjunction with the local post office.

The email distribution list contained only the names and email addresses of those who subscribe to receive an electronic version of the newsletter.

Hicks argued the lists are essential to evaluate the conduct of the newsletter program and to learn whether some residents were omitted from the lists. The Court of Claims concluded the lists did not document the township’s operations and did not meet the definition of a “public record” under R.C. 149.011(G). The court concluded the contact lists are used as a matter of “administrative convenience.”

Hicks appealed to the Twelfth District, which affirmed the Court of Claims decision. Hicks appealed to the Supreme Court, which agreed to hear the case.

Supreme Court Analyzed Public Records Act
Justice Donnelly explained the Public Records Act is to be viewed in favor of broad public access, and any doubt about a record is to be resolved in favor of disclosure. He noted that state law allows local governments, such as the township, to use public funds to publish and distribute newsletters about the plans, policies, and operations of the government body. Hicks and the township do not dispute the newsletter is a public record.

To establish that the lists are public records, Hicks had to prove three points, the opinion stated. First, the lists must be “documents, devices, or items,” and second, they must be “created or received by or coming under the jurisdiction of the state agencies.” Finally, the lists “must serve to document the organization, functions, policies, decisions, procedures, operations, or other activities of the office.”

The Court majority found there was no dispute the lists met the first two requirements because they are items created and maintained by the township to disseminate its newsletters.

The lists are more than a convenience, as found by the lower courts, the opinion stated. Rather they are “central to connecting the township with its constituents, which is the purpose of the newsletter,” the Court stated.

The Court ruled the lists meet the definition of a public record because they document how the newsletters are distributed and the intention behind the practice.

“Though the distribution lists assist an administrative function, they also allow citizens to ‘evaluate the conduct of the newsletter program,’ which is a function and activity of the township,” the opinion stated.

The Court noted the Public Records Act has some provisions exempting the disclosure of addresses, but there is no “universal address exception” that would prevent the township from disclosing the addresses and email addresses of its newsletter recipients.

Ownership Remains Unanalyzed, Concurrence Asserted
In his concurrence, Justice DeWine noted the parties focused their legal arguments on whether the lists do or do not document a public function. They do not address the “ownership” prong, which requires the records to be “created or received by or coming under the jurisdiction of the state agencies.”

Township officials explained the mailing list was created and maintained by Cincinnati Print Solutions, which the township hired to mail the newsletter. Justice DeWine wrote that it is unclear if the list falls “under the jurisdiction” of the township as required by R.C. 149.011(G).

He noted that on one end of the spectrum, a local government might contract with a vendor to send the newsletter to a designated geographic area without further involvement in maintaining the list. On the other end, the vendor may create a list with the active involvement of the local government, and under those circumstances, it would be a stronger argument that the list is owned by the government.

“Based on the record before us, it is impossible to tell where the mailing list at issue falls on these two ends of the spectrum,” he wrote.

Justice DeWine stated today’s decision sets no precedent on whether the ownership requirement is met when a government agency has a vendor produce and maintain a mailing list.

Lists Do Not Document Government Business, Dissent Maintained
Justice Fischer wrote the Court majority relied on a 2008 Supreme Court decision, in which the Court found a state database containing names and addresses of foster caregivers was public because maintaining the list was part of the Ohio Department of Jobs and Family Services’ duty to certify foster caregivers. In that case, the department had a duty by law to administer federal payments for foster care, and the database documented how the department conducted its required operations, he stated.

He pointed to the Court’s 2005 State ex rel. Dispatch Printing Co. v. Johnson decision, where the Court ruled the home addresses of state employees were not public records. The Court found the address lists had no connection to the conduct of state government. He wrote the township’s policies and procedures for creating and maintaining a database to distribute a newsletter may document the procedures of a public office, but the home addresses themselves do not and are not public records.

2023-0580. Hicks v. Union Twp., Clermont Cty. Bd. of Trustees, Slip Opinion No. 2024-Ohio-5449.

View oral argument video of this case.

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