[Cite as State ex rel. Bowman v. Jackson City School Dist., 2011-Ohio-2228.]


                      IN THE COURT OF APPEALS OF OHIO
                         FOURTH APPELLATE DISTRICT
                              JACKSON COUNTY

STATE OF OHIO ex rel.,          :
DIANA BOWMAN,                   :
                                :
     Relator-Appellant,         : Case No. 10CA3
                                :
     vs.                        : Released: May 5, 2011
                                :
JACKSON CITY SCHOOL             : DECISION AND JUDGMENT
DISTRICT,                       : ENTRY
                                :
     Respondent-Appellee.       :
_____________________________________________________________
                          APPEARANCES:

Edward L. Ostrowski, Jr., Dublin, Ohio, for Relator-Appellant.

Dane A. Gaschen, and Daniel C. Gibson, Bricker & Eckler LLP, Columbus,
Ohio, for Respondent-Appellee.
_____________________________________________________________

McFarland, J.:

        {¶1} Relator-Appellant, Diana Bowman, appeals the Jackson County

Common Pleas Court’s denial of her petition for a writ of mandamus against

Respondent-Appellee, Jackson City School District, to compel compliance

with the Public Records Act. On appeal, Relator-Appellant contends that the

trial court erred when it determined that the documents requested are not

public records pursuant to R.C. 149.011(G) and denied the petition for a writ

of mandamus. We agree with Relator-Appellant and therefore sustain her
Jackson App. No. 10CA3                                                           2


sole assignment of error. As such, the decision of the trial court is reversed

and remanded for further action consistent with this opinion.

                                   FACTS

      {¶2} On March 12, 2009, Jackson City School Superintendent, Phil

Howard, notified the Ohio Department of Education (hereinafter “ODE”)

that an employed teacher, Christy Parks, had “engaged or may have engaged

in conduct unbecoming to the teaching profession.” This notification was

made via completion of a School District, MRDD & Community School

Educator Misconduct Reporting Form. Attached to the form was a letter

from Superintendent Howard explaining that after being asked to check

Parks’ use of school email, it was discovered that “she had sent

inappropriate emails during the time that should have been teaching[,]” and

that the “email correspondence was between her and another adult and had

nothing to do with any of our students or any other child.” In the letter,

Superintendent Howard also informed ODE that Parks, among other

sanctions, had been suspended without pay for forty-five days.

      {¶3} The record further reflects that, prior to the report to ODE,

Respondent-Appellant, Jackson City School District, and Parks entered into

a “Last Chance Agreement” dated March 5, 2009, whereby the parties

acknowledged that Parks had “improperly used school computers for
Jackson App. No. 10CA3                                                                                    3


excessive amounts of email during which time she should have been

teaching as well as the inappropriate content of such email[.]”

         {¶4} At some point thereafter, Respondent-Appellant, Diana

Bowman, made a public records request to Respondent-Appellee seeking

“all emails and all other supporting documents, in the disciplinary case of

Kristy Parks, March 2009.”1 By letter dated October 22, 2009,

Superintendent Howard refused to provide the requested records, explaining

that the emails requested were not public records in that they did not serve to

document the organization, functions, procedures, policies, or other

activities of the school district, citing State ex. rel Glasgow v. Jones, 119

Ohio St.3d 391, 2008-Ohio-4788, 894 N.E.2d 686, in support.2 Respondent-

Appellant made another request by letter dated November 18, 2009. This

time, Relator-Appellant requested “to see the separate public file referred to

by Ohio Department of Education,”3 explaining that the file “should show a

pattern of excessive and inappropriate emails.” On November 24, 2009,

Superintendent Howard responded to the records request by enclosing the

1
  This public records request was undated.
2
  We note the representation made in Superintendent Howard’s letter is incomplete in quoting from State ex
rel. Glasgow v. Jones. That case at ¶ 20 states that emails, text messages and other correspondence are
“records” under the Public Records Act if they “serve to document the organization, functions, policies,
decisions, procedures, operations, or other activities of the office.” (Emphasis added). As will be
discussed more fully infra, the inclusion of the word “decisions” is integral to the resolution of the issue
presented in the current appeal.
3
  The “separate public file” was created at the direction of ODE after Superintendent Howard reported
Parks’ misconduct to ODE. Upon receiving the report, ODE advised Respondent-Appellee that it was to
“remove all reports of the board’s or chief administrator’s investigation regarding this issue from Parks’
personnel file to a separate, public file.
Jackson App. No. 10CA3                                                           4


records contained in the separate public file, but again denied production of

the requested emails, citing its prior reasoning.

      {¶5} On December 16, 2009, Respondent-Appellant filed a petition

for a writ of mandamus in Jackson County Court of Common Pleas seeking

production of the requested emails. In a decision and order dated February

25, 2009, the trial court denied the petition for mandamus. In reaching its

decision, the trial court noted that “the emails were used as the basis of

discipline against the teacher who wrote them.” However, the trial court

ultimately reasoned that “[t]he fact that the use of a public email system for

private purposes may result to disciplinary actions for the employee does not

render the contents public.”

      {¶6} It is from this decision and order that Respondent-Appellant now

brings her timely appeal, setting forth a single assignment of error for our

review.

                         ASSIGNMENT OF ERROR

“I.   THE TRIAL COURT ERRED WHEN IT DETERMINED THAT
      DOCUMENTS REQUESTED BY RELATOR ARE NOT PUBLIC
      RECORDS PURSUANT TO R.C. 149.011(G), AND DENIED
      RELATOR’S PETITION FOR A WRIT OF MANDAMUS.”

                               LEGAL ANALYSIS

      {¶7} In her sole assignment of error, Respondent-Appellant contends

that the trial court erred when it determined that documents requested by her
Jackson App. No. 10CA3                                                         5


are not public records pursuant to R.C. 149.011(G) and denied her petition

for a writ of mandamus. “We review a trial court's denial of a writ of

mandamus under the abuse of discretion standard.” Athens County

Commissioners v. Ohio Patrolmen’s Benevolent Association, Athens App.

No. 06CA49, 2007-Ohio-6895 at ¶45; citing, Truman v. Village of Clay

Center, 160 Ohio App.3d 78, 83, 2005-Ohio-1385, 825 N.E.2d 1182.

       {¶8} “ ‘Mandamus is the appropriate remedy to compel compliance

with R.C. 149.43, Ohio's Public Records Act.’ ” State ex rel. Toledo Blade

Co. v. Seneca Cty. Bd. of Commrs., 120 Ohio St.3d 372, 2008-Ohio-6253,

899 N.E.2d 961 at ¶17; citing, State ex rel. Physicians Commt. for

Responsible Medicine v. Ohio State Univ. Bd. of Trustees, 108 Ohio St.3d

288, 2006-Ohio-903, 843 N.E.2d 174 at ¶ 6; R.C. 149.43(C). “We construe

R.C. 149.43 liberally in favor of broad access and resolve any doubt in favor

of public records.” State ex rel. Toledo Blade Company at ¶17; citing, State

ex rel. Carr v. Akron, 112 Ohio St.3d 351, 2006-Ohio-6714, 859 N.E.2d 948

at ¶ 29.

       {¶9} “ ‘Public record’ means records kept by any public office,

including * * * school district units.” R.C. 149.43(A)(1). It is undisputed

that the Jackson City School District is a public office subject to R.C.

149.43. See, Ellis v. Cleveland Municipal School District, 309 F.Supp.2d
Jackson App. No. 10CA3                                                        6


1019 (N.D. Ohio, 2004) (reasoning “public records include those kept by

school district units and public employee personnel records, including

records reflecting discipline, are generally regarded as public records absent

proof of an exception.).

      {¶10} Turning our attention to the specific records requested, we note

that the requested e-mail messages are “records” subject to the Public

Records Act if they are “(1) documents, devices, or items, (2) created or

received by or coming under the jurisdiction of the state agencies, (3) which

serve to document the organization, functions, policies, decisions,

procedures, operations, or other activities of the office.” State ex rel.

Glasgow v. Jones, supra, at ¶ 20; citing State ex rel. Dispatch Printing Co. v.

Johnson, 106 Ohio St.3d 160, 2005-Ohio-4384, 833 N.E.2d 274 at ¶ 19;

R.C. 149.011(G). (Emphasis added). First, e-mail messages and

correspondence are “documents, devices, or items” under the first prong of

the definition of “records.” State ex rel. Glasgow v. Jones at ¶ 20. More

specifically, e-mail messages constitute electronic records under R.C.

1306.01(G) because they are records “created, generated, sent,

communicated, received, or stored by electronic means.” Id.; see, also R.C.

149.011(G) (which includes “an electronic record as defined in section
Jackson App. No. 10CA3                                                         7


1306.01 of the Revised Code” as a “document, device, or item” within the

definition of “record.”).

      {¶11} Secondly, the e-mail messages requested are those sent and

received by an employed teacher through Respondent school district’s public

email system during business hours. The record further indicates that these

emails were sent and received “during time that she should have been

teaching.” Thus, the requested emails meet the second prong of the

definition of “records.”

      {¶12} It is primarily the final requirement upon which the parties

herein disagree. Relator-Appellant, Diana Bowman, contends that the

requested emails are public records subject to disclosure because the emails

served as the basis for Respondent-Appellee’s decision to discipline Parks.

More specifically, Relator-Appellant argues that private emails sent over a

public office computer become public records when they are utilized to

make decisions in the public office. Respondent-Appellee contends that the

emails requested are not public records because they were personal in nature

and did not serve to “document the organization, functions, policies,

decisions, procedures, operations, or other activities of the office” as

provided in R.C. 149.011(G). For the following reasons, we agree with

Relator-Appellant.
Jackson App. No. 10CA3                                                      8


      {¶13} As set forth above, the record before us includes a “School

District, MRDD & Community School Educator Misconduct Reporting

Form” completed by Respondent-Appellee’s superintendent, Phil Howard.

The form, which was provided to the Ohio Department of Education,

indicates that teacher Christy A. Parks “has engaged or may have engaged in

conduct unbecoming to the teaching profession.” Attached to the form is a

letter from Superintendent Howard, explaining that an investigation had

been performed in which it was discovered that Christy Parks “had sent

inappropriate emails during time that she should have been teaching.” The

letter further stated that the “email correspondence was between her and

another adult and had nothing to do with any of our students or any other

child.”

      {¶14} The record before us also includes a “Last Chance Agreement”

entered into by Parks and Respondent-Appellee. In the agreement, the

parties stipulate that Parks “improperly used school computers for excessive

amounts of email during which time she should have been teaching as well

as the inappropriate content of such email.” Both the letter to the Ohio

Department of Education and the Last Chance Agreement indicate that, as a

result of the findings of the investigation, Parks would be disciplined.
Jackson App. No. 10CA3                                                           9


Among other sanctions, Parks was suspended without pay for forty-five

days.

        {¶15} Any email “which serves to document the organization,

functions, policies, decisions, procedures, operations, or other activities of

the office” constitutes a public record under R.C. 149.011(G). (Emphasis

added). We conclude that because Respondent’s decision to discipline Parks

was related to her inappropriate use of email during time that she should

have been teaching, the emails that were discovered during the course of the

investigation are public records. Specifically, we conclude that because the

superintendent relied upon the emails in reaching his decision to discipline

Parks, the emails themselves constitute public records. See State ex rel.

Freedom Communications, Inc. v. Elida Community Fire Company et al.,

82 Ohio St.3d 578, 581, 1998-Ohio-411, 697 N.E.2d 210 (reasoning that

records documenting investigation and decision to terminate two volunteers

related to employment and personnel matters and were public records).

        {¶16} Further, in State ex rel. Highlander v. Rudduck, 103 Ohio St.3d

370, 2004-Ohio-4952, 816 N.E.2d 213, the Supreme Court of Ohio reasoned

that “ ‘[A]ny record used by a court to render a decision is a record subject

to R.C. 149.43.’ State ex rel. WBNS TV, Inc. v. Dues, 101 Ohio St.3d 406,

2004-Ohio-1497, 805 N.E.2d 1116, ¶ 27.” In State ex rel. WBNS TV, Inc.,
Jackson App. No. 10CA3                                                         10


an unredacted application for approval of a settlement agreement was

sought. The Supreme Court of Ohio reasoned that “any record used by a

court to render a decision is a record subject to R.C. 149.43,” specifically

citing the fact that the judge used the redacted information from the sealed

application to decide whether to approve the settlement and whether to grant

the estate’s motion for attorney fees. Id.

      {¶17} Both court records and school district records are subject to

R.C. 149.43. Much like the judge relied on certain information to reach

decisions in Highlander and WBNS, the superintendent relied on the emails

in question in reaching his decision to discipline Parks, enter into a Last

Chance Agreement with her, and report her to the Ohio Department of

Education, all of which were “decisions, procedures, operations, or other

activities of the office” as per R.C. 149.011(G). Thus, we conclude, despite

the allegedly private nature of the emails, the superintendent’s reliance upon

them in reaching his decision makes them public records subject to

disclosure.

      {¶18} As such, Relator-Appellant’s sole assignment of error is

sustained and the decision of the trial court denying her petition for a writ of

mandamus compelling the release of the requested records is reversed.
Jackson App. No. 10CA3                                                11


Accordingly, this matter is remanded to the trial court for further

proceedings consistent with this opinion.

                                            JUDGMENT REVERSED AND
                                                  CAUSE REMANDED.
Jackson App. No. 10CA3                                                          12


                           JUDGMENT ENTRY

      It is ordered that the JUDGMENT BE REVERSED AND THE
CAUSE REMANDED and that the Appellant recover of Appellee costs
herein taxed.

      The Court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this Court directing
the Jackson County Common Pleas Court to carry this judgment into
execution.

       Any stay previously granted by this Court is hereby terminated as of
the date of this entry.

      A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
Exceptions.

Kline, J.: Concurs in Judgment and Opinion.
Abele, J.: Dissents.



                                        For the Court,


                                        BY: _________________________
                                            Judge Matthew W. McFarland




                          NOTICE TO COUNSEL

      Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from
the date of filing with the clerk.
