In Inside Courts, retired judge Tom Hodson explains the complexities of the law and legal cases, helping you understand what’s at stake — and how it affects you.
Since passing public records statutes in 1963 and the open meeting statutes in 1974, Ohio has been in the vanguard demanding public office transparency.
The original legislation was passed when Republican Governor James Rhodes held office. The open meeting laws were passed under Democrat John Gilligan. This shows that public record disclosure was not a partisan issue.
The Republican-dominated Ohio Supreme Court just threw a giant wrench into the gears of Ohio’s public records laws, causing major damage to people seeking public documents.
Republicans no longer want transparency or disclosure. They want to control the documents and control the public narrative.
On May 27, the six Republicans on the court banded together to halt discovery proceedings in a case that required the production of certain public records and the deposition (oral testimony under oath before trial) of then Ohio Attorney General David Yost.
The court sent the case back to the 10th District Court of Appeals (Franklin County) for that court to review and amend the scope of discovery limiting what the plaintiff could rightfully demand in seeking public records.
Why you should care
The right for anyone to be able to see and receive public records should be inviolate. We must be able to see exactly how our public institutions are operating. We need to be able to peek behind the curtains of governmental secrecy at any time.
Our right to public records should not be compromised or politicized.
The majority decision by the Ohio Supreme Court was a political one. It supported a Republican Attorney General who is trying to evade Ohio’s clear public record statutes to protect his pro-Trump political activities.
It is as if the justices knew the decision they wanted to make to support Yost and then tortured their legal arguments and reasoning to support that decision.
More importantly, I see a Republican-dominated Ohio Supreme Court chipping away at the state’s public records statutes to promote secrecy in government, as a tenet of the MAGA form of Republicanism.
Ohio once was a bipartisan pioneer in public transparency. It is sad to see strong public records laws being diluted by legislative fiats and partisan Supreme Court decisions.
Unfortunately, what the United States Supreme Court is to the Trump Administration, the Ohio Supreme Court is to the MAGA Ohio General Assembly.
This Ohio Supreme Court even has gone so far as to now allow elected judges in Ohio to endorse candidates for any political office.
In April the Ohio Supreme Court, in a 5-1 decision overturned the state’s decades-old ban on judges publicly endorsing political candidates.
That made Ohio the first — and only — state in the nation to explicitly allow state judges and judicial candidates to endorse politicians running for office.
I have no faith in Ohio’s top court to call out governmental impropriety or secrecy.
Therefore, we need to fight all the harder in our local courts to make sure our public offices, and public officials comply with public records statutes and open meeting laws. We must fight back.
Every time a city, the county, or Ohio University refuses to give public records, we must fight them in court to demand the people’s right to information.
If not, we will have a government dominated by secrecy and deceit, and not a government open to the people.
Case breakdown
Let me break down the case of Center for Media and Democracy v. Attorney General David Yost.
The parties
The plaintiff describes itself as a governmental nonpartisan anti-corruption watchdog group called the Center for Media and Democracy. An active party on behalf of the plaintiff is David Armiak, who heads research for the center.
The defendant is David Yost, who was Ohio Attorney General at the time. He resigned in early May to the Alliance Defending Freedom, a conservative Christian advocacy group.
The facts
In 2020, the Center, through Armiak, asked Yost and his chief of staff to provide copies of records related to his involvement with the Republican Attorneys General Association (RAGA), the Rule of Law Defense Fund (RLDF), and his attendance at RAGA’s 2020 winter meeting. These are conservative, GOP-based organizations that promote litigation to support President Donald Trump.
The center asked for:
All records that pertain to [RAGA], [RLDF], and the RAGA Winter Meeting held February 29 through March 2 from the Office of Attorney General Dave Yost. The scope of this request includes the Attorney General and Chief of Staff. The scope of this request should include but is not limited to emails, attachments, both sent and received, all draft records, briefing books, memos, notes, minutes, scheduling records, text messages, other correspondence (internal and external) and all other records.
Yost responded that the documents being sought were not records of his office, but instead were personal records and therefore did not come under the public records umbrella.
Armiak disagreed and sent an email to the attorney general stating that Yost and his chief of staff’s interactions with RAGA and RLFD were laced with extensive matters of public policy, and that while participating Yost and his staff were conducting public business. He also stated that Yost and his staff attended events sponsored by RAGA and RLFD in their “official capacities” representing the State of Ohio.
Yost countered saying that his office had no “email, test, drafts, memo, minutes, or other correspondence records” requested and repeated that other information was not public record.
Tenth District Court of Appeals
The center did not believe Yost and filed a legal action against him to provide the records. The lawsuit was for a writ of mandamus from the Tenth District Court of Appeals. In essence, the center was asking the court to mandate that the attorney general and his office provide the public records requested.
The court of appeals appointed a magistrate (a lawyer who is not a judge but makes recommendations to the judges) to hear the case.
As part of that litigation, the center attempted to get the documents through a civil discovery process. Discovery is a multifaceted process for gaining information from opponents prior to a case going to trial.
The center used 16 requests for production of documents which, in a civil case, demands that the opponent provide documents prior to trial for the parties’ and the court’s review.
The center also issued eight interrogatories to Yost. Interrogatories are written questions that need to be answered under oath by a party prior to trial.
Additionally, the center asked that Yost sit for a two-hour, under oath, deposition to answer questions about the documents that were not provided. Depositions were also requested from several of Yost’s staff members.
The Tenth District Court of Appeals gave the center the right to pursue these forms of discovery. The magistrate granted the center’s demand that Yost produce documents, with the caveat that some of the documents would be reviewed privately by the magistrate (in camera review) to determine if they should be given to the center.
The magistrate also ordered Yost and his staff members to participate in the depositions.
Yost disagreed with the magistrate’s rulings and appealed the Tenth District’s ruling to the Ohio Supreme Court, consisting of seven justices chosen in statewide elections.
The Supreme Court decision
In a 6-1 decision, the Ohio Supreme Court struck down the Tenth District’s ruling, thereby vacating the Tenth District’s discovery order.
The six members of the court agreeing with Yost are all Republicans, as is Yost. The lone Democrat on the court, Justice Jennifer Brunner, filed a written dissenting opinion.
The decision, written by Justice Patrick F. Fischer, vacated the orders, saying the Tenth District Court of Appeals “misapplied the law and abused its discretion” in granting the center’s motion to compel the attorney general to comply with discovery measures.
The court vacated the Tenth District’s order demanding discovery compliance and remanded it (sent it back) to the court of appeals for that court to properly apply the discovery rules as outlined by the supreme court.
Let’s try to succinctly summarize the court’s 28-page decision.
The decision states that court-mandated discovery must be limited to what is “relevant and proportional” to the case. The court used the Ohio Rules of Civil Procedure (rules governing how a civil case proceeds) as authority.
The supreme court said that in a public records request case, the “relevant and proportional” standard goes to whether the documents requested are or are not public records under the statutory definition.
Discovery must be limited to arguments that the documents are public records and defenses that they are not, according to the court.
Justice Fischer’s opinion stated that the Tenth District’s order inappropriately mandated the attorney general to produce information beyond what was “relevant and proportional” to the question of whether the documents requested fit the definition of “public records.”
“The court of appeals, in our view, placed the proverbial cart before the horse,” Fischer stated.
The dissenting opinion
Democratic Justice Jennifer Brunner issued an 18-page written dissent. A “dissenting opinion” does not carry the weight of a majority opinion, but it does state a firm position of a justice against the majority view.
In essence, she said the court’s majority substituted its judgment in favor of the attorney general over the broad discretion given, by law, to the Tenth District Court of Appeals.
She also noted that the court did not give the appellate courts any guidance for managing discovery in a public records case.
She argues that the court of appeals, in fact, applied the discovery rules properly, especially given the behavior of the attorney general and his office and the appellate orders should have been maintained.
Justice Brunner stated that the attorney general’s reasoning for not releasing the documents had shifted and evolved — at one point, he even said some of the documents were, in fact, public records. Therefore, she thinks the many and varied attempts for discovery to lock him down was appropriate by the court of appeals.
“The approach employed by the court of appeals in determining what information would be relevant to the claims and defenses of the parties was not unreasonable, especially in the light of the attorney general’s office’s evasive conduct and evolving defenses,” the dissent says.
Justice Brunner says that the court’s majority opinion limits governmental transparency.
Although the decision may be in sync with the new era of governmental secrecy, Brunner disagrees.
She ends her dissent saying: “Public scrutiny through broad access to public records is a fundamental tenet of the people of Ohio’s right to exercise self-governance. … As this court continues to whittle the public’s right to examine the public’s own records into almost nothing, I ask the people of Ohio to consider whether this is consistent with their collective ideas and values. I have grave doubt that the people of Ohio consent to their government operating in secrecy. I therefore continue my adamant dissent to this court’s path of enabling the government to do so.”
