A new decision from the Eighth District Court of Appeals denied a reporter’s request for an order to produce three years of e-mails, finding it was too broad to be enforced.

In State ex rel. Dissell v. City of Cleveland, decided last week, reporter Rachel Dissell requested access to every e-mail sent to the “Mayor’s Action Center” for a three-year span. The City denied the request, claiming it was too broad; instead, it invited Dissell to narrow and resubmit her request. The reporter challenged the denial, but the City continued to refuse to produce the records.

As the parties continued their negotiations, the City agreed to release one month of records, yielding a production of nearly 9,000 pages. Negotiations apparently broke down thereafter, and Dissell asked the courts to intervene.

The City argued that the request was overly broad because it sought everything received at a single address, over a three-year period, regardless of the messages’ topics or subject line. But Dissell pointed to a binding decision from the Ohio Supreme Court explaining that a request is overbroad when it fails to identify the records sought or when it seeks entire categories of files without limitation by either content or time period. Because the City knew exactly what records she wanted, and because she had narrowed them to a three-year span, she argued, the request was neither overbroad nor improper.

Nonetheless, the Eighth District entered judgment for Cleveland because she had limited her request only by time, not by subject. The court acknowledged the rule that “no pleading of too much expense or too much time involved” can excuse a government’s failure to produce requested records, but it nonetheless concluded that the response to Dissell’s request would be too “voluminous” to be required under the law.

The rationale is a curious one, as the court went on to explain that the subjects of the records she sought were wildly diverse, including forwarded news articles, complaints about garbage pick-up, and a rave review of DJ Kishka. It is unclear why the court believed she could predict the topics of these e-mails, or why she should be required to; a journalist can’t report that Issue X is the most pressing concern for citizens if she doesn’t know how many requests come in for any other issues.

It therefore denied her petition for a writ of mandamus, as well as her request for statutory damages and court costs. Instead, it applauded the City’s “attitude of cooperation” in trying to resolve the request.

The decision is a powerful reminder of two important lessons for requesters and government agencies alike. First, the Ohio Public Records Act is far squishier than its strong language might suggest to the lay reader. When called on to enforce its mandates, courts regularly reach conclusions that can seem completely incompatible with each other, and they often interpret the law’s mandates in ways that many people think contrary to its actual language. Sometimes these seemingly anomalous decisions break in favor of the requester, and sometimes they break in favor of the government.

Second: This means that in public-records litigation, having the better argument about the letter of the law is rarely enough to win. Instead, courts are perpetually looking at these cases and making ad hoc assessments of which party has behaved more reasonably in trying to resolve the request. More often than not, the court will enter a judgment for that party.

This means that in litigation, it is rarely enough for a requester to simply catch the government in a violation of the law or find a precedent that says you should win your case. Before moving to litigation, requesters need to evaluate the scope of their request, the reasonableness of their efforts to resolve the request, and how friendly or hostile their venue will be to their request.

If you’re running into trouble accessing records, call Speech Law LLC for a consultation about your options for improving your request or asking the courts to enforce your rights.

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