2021 Ohio 3828
Ohio Ct. App.2021Background
- On June 28, 2020 Viola requested the Ohio Attorney General (AGO) to search Assistant AG Dan Kasaris’s personal Yahoo account for emails (2013–present) containing specified keywords, including communications with witness Kathryn Clover.
- The AGO denied the portion of the request seeking personal Yahoo account records, stating personal emails are not public records under R.C. 149.011(G) and the request was overly broad.
- Viola filed a complaint under R.C. 2743.75 in the Court of Claims; a special master was appointed and mediation occurred; parts of an earlier request were resolved but the Yahoo-account issue remained in dispute.
- Kasaris submitted an affidavit stating he rarely used Yahoo for AGO business, that any AGO emails forwarded to Yahoo were duplicates and were deleted after the related criminal matter concluded, and that his Yahoo search using Viola’s keywords found no AGO-related emails.
- The special master concluded the AGO did not violate R.C. 149.43; the Court of Claims adopted that recommendation, finding Viola failed to show by clear and convincing evidence that responsive public records exist or that the AGO improperly processed the request.
- Viola appealed; the Tenth District affirmed, holding Viola did not meet the burden to prove the existence of responsive public records and the court need not decide the broader question whether private-account emails can be public records under the Public Records Act.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Must AGO search Kasaris’s personal Yahoo account for responsive emails? | Viola: Kasaris admitted using Yahoo for official business; AGO must search and produce any public records there. | AGO: Only the office responsible for records must produce them; Kasaris’s Yahoo is personal and his affidavit says no AGO-related emails exist. | Held: No. Viola failed to show by clear and convincing evidence that responsive public records exist on the Yahoo account, so AGO had no duty to search/produce them. |
| Did Viola meet the burden to prove records exist and that AGO violated R.C. 149.43(B)? | Viola: He has a reasonable belief emails exist (including communications with witness Clover) and interest of justice favors disclosure. | AGO: Viola’s belief is insufficient; requester must plead and prove existence by clear and convincing evidence. | Held: Viola did not meet the burden; speculation or belief is insufficient to establish existence of records. |
| Are emails between a prosecutor and a government witness necessarily ‘‘public records’’? | Viola: Such emails relate to prosecutions (core functions) and thus should be treated as official/public. | AGO: Whether such emails are public records depends on whether they were created/received by or came under jurisdiction of the office and document office functions. | Held: Court declined to decide the general legal question because it found the specific request did not involve records subject to R.C. 149.43 given the record before it. |
| Was the special master required to determine alleged material falsity of Kasaris’s affidavit? | Viola: Special master should have resolved whether Kasaris submitted a materially false affidavit. | AGO: The special master need not resolve every collateral factual attack; R.C. 2743.75 limits scope of required determinations. | Held: Court of Claims correctly concluded the special master was not required to resolve that collateral issue for purposes of the R.C. 2743.75 proceeding. |
Key Cases Cited
- State ex rel. Glasgow v. Jones, 119 Ohio St.3d 391 (2008) (articulates test for when e-mail messages qualify as "records" under R.C. 149.011(G))
- State ex rel. Dispatch Printing Co. v. Johnson, 106 Ohio St.3d 160 (2005) (applies Public Records Act test to e-mail messages)
- Welsh-Huggins v. Jefferson Cty. Prosecutor's Office, 163 Ohio St.3d 337 (2020) (explains R.C. 2743.75 procedure and burden of proof parallels mandamus actions under R.C. 149.43)
- State ex rel. McDougald v. Greene, 163 Ohio St.3d 471 (2020) (public office has no duty to provide a nonexistent record)
- State ex rel. McCaffrey v. Mahoning Cty. Prosecutor's Office, 133 Ohio St.3d 139 (2012) (requester’s good-faith belief records exist does not satisfy burden to show they do)