[Cite as Cincinnati Enquirer v. Cincinnati, 2019-Ohio-1613.]




THE CINCINNATI ENQUIRER, A                             Case No. 2018-01339PQ
DIVISION OF GANNETT GP MEDIA,
INC.                                                   Judge Patrick M. McGrath

       Requester                                       ENTRY ADOPTING
                                                       RECOMMENDATION OF
       v.                                              SPECIAL MASTER

CITY OF CINCINNATI

       Respondent

        {¶1} On April 18, 2018, Reporter Sharon Coolidge made a public records request
on behalf of requester Cincinnati Enquirer, a Division of Gannett GP Media, Inc.
(Enquirer) to the council members of respondent City of Cincinnati that stated, in
pertinent part:
        I am writing to request that you produce communications or
        correspondence (including e-mails and text messages) between five
        council members: P.G. Sittenfeld, Greg Landsman, Tamaya Dennard,
        Wendell Young and Chris Seelbach.

        The time frame for this request is from Jan. 1, 2018 to April 30, 2018.

(Complaint, Exh. A.) The Enquirer’s counsel engaged in follow-up correspondence with
the City (Id., Exh. B-D), but no records were produced.
        {¶2} On October 5, 2018, the Enquirer filed this action under R.C. 2743.75,
alleging denial of access to public records by the City in violation of R.C. 149.43(B).
Following mediation that resolved the email portion of the request, the City filed a
response and motion to dismiss regarding the claim for production of text messages on
the grounds that 1) text messages of council members on a personal, privately-paid cell
phone are not records of the City and are not kept by the City, and, 2) the request was
overly broad and therefore unenforceable.
Case No. 2018-01339PQ                       -2-                                    ENTRY


        {¶3} The special master found that text messages are subject to the Public
Records Act if their content meets the definition of a “record” in R.C. 149.43(G) and the
definition of “public record” in R.C. 149.43(A)(1). The special master found that storage
in a personal, privately-paid cell phone did not automatically exclude a text message
from either definition. The special master further found that the request was overly
broad in asking for all communications between five officials, not limited by subject
content, over a substantial period of four months. The special master found that the City
had failed to offer the Enquirer information and opportunity to revise this overly broad
request, in violation of R.C. 149.43(B)(2). The special master recommended that the
court issue an order granting respondent’s motion to dismiss the complaint because it is
based on a request that was overly broad and therefore unenforceable.
        {¶4} R.C. 2743.75(F)(2) states, in part: “Either party may object to the report and
recommendation within seven business days after receiving the report and
recommendation by filing a written objection with the clerk * * * .” No objections were
filed by either party. The court determines that there is no error of law or other defect
evident on the face of the special master’s decision. Therefore, the court adopts the
special master’s report and recommendation as its own, including findings of fact and
conclusions of law contained therein.
        {¶5} Court costs are assessed equally between the parties. The clerk shall serve
upon all parties notice of this judgment and its date of entry upon the journal.




                                           PATRICK M. MCGRATH
                                           Judge

Filed March 13, 2019
Sent to S.C. Reporter 4/30/19
