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STEPHEN P. POSTALAKIS B L A U G R U N D , H E R B E R T , K E S S L E R , M I L L E R ,

M Y E R S & P O S T A L A K I S , I N C O R P O R A T E D 3 0 0 W E S T W I L S O N B R I D G E R O A D , S U I T E 1 0 0

W O R T H I N G T O N , O H I O 4 3 0 8 5 ( 6 1 4 ) 9 2 3 - 3 1 1 2

S P P @ B H M L A W . C O M

O H I O A S S O C I A T I O N O F C O U N T Y B O A R D S S E R V I N G P E O P L E W I T H

D E V E L O P M E N T A L D I S A B I L I T I E S 2 0 1 3 A N N U A L C O N V E N T I O N

Ohios Public Records Law and

Text Messages

Introduction

Public records means records kept by any public office . See R.C. 149.43(A)(1).

County Board is a public office. See R.C. 149.011(A). Records are 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 public office, (3) which serve to document the organization, functions,

policies, decisions, procedures, operations, or other activities of the office. State ex rel. Dispatch Printing Co. v. Johnson, 106 Ohio St.3d 160, 2005-Ohio-4384, 833 N.E.2d 274, 19; R.C. 149.011(G).

State ex rel. Glasgow v. Jones, 119 Ohio St.3d 391, 2008 -Ohio- 4788

Attorney requested the following records from state representative: All email, text messages, and written correspondence,

sent or received by the representative, from the date of your service as such Representative, specifically including, but not limited to, any e-mails having as their subject matter Substitute House Bill 151 of the 127th General Assembly or discussions that led to the introduction of Substitute House Bill 151 or any predecessor bill. Rep. Jones interpreted the request addressed to her to be limited

to records related to H.B. No. 151 or the general subject of divestiture of investments in Iran and Sudan.

State ex rel. Glasgow v. Jones, 119 Ohio St.3d 391, 2008 -Ohio- 4788

Jones contended that a request for all e-mail messages, text messages, and correspondence sent to and from a public official is not a proper public-records request.

The Court agreed: we hold that insofar as Glasgow broadly sought all of

Jones's work-related e-mail messages, text messages, and correspondence during her entire tenure as state representative, his request was improper because it was overly broad. In essence, Glasgow's general request impermissibly sought what approximated a complete duplication of Jones's files.

Court then looked at records related to H.B. No. 151 and the divestiture of investments in Iran and Sudan.

State ex rel. Glasgow v. Jones, 119 Ohio St.3d 391, 2008 -Ohio- 4788

Rep. Jones did not dispute that work-related emails were public records:

Court: E-mail messages and correspondence are documents,

devices, or items under the first prong of the definition of records. 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. See R.C. 149.011(G), which includes an electronic record as defined in section 1306.01 of the Revised Code as a document, device, or item within the definition of record.

State ex rel. Glasgow v. Jones, 119 Ohio St.3d 391, 2008 -Ohio- 4788

Court held that the text messages were not records. The requested text messages , however, are not records.

The evidence is uncontroverted that Jones's text messages do not document work-related matters. They are therefore not records subject to R.C. 149.43. Johnson, 106 Ohio St.3d 160, 2005-Ohio-4384, 833 N.E.2d 274, 25.

Interestingly, though, the Court also refused to state whether text messages would ever constitute a public record: In so holding, we need not decide the issue of whether text

messages could generally constitute items subject to disclosure under the Public Records Act.

Court decisions since 2008

Have found no other Ohio case that addressed text messages under Public Records law. Given the definitions of records, public

records, including electronic record, it would appear that text messages would be public records if they are created or received by or coming under the jurisdiction of the public office, and serve to document the organization, functions, policies, decisions, procedures, operations, or other activities of the office.

Record Retention

Glasgow Court: Our decision in no way restricts a public office from

disposing of items, including transient and other documents (e.g., e-mail messages) that are no longer of administrative value and are not otherwise required to be kept, in accordance with the office's properly adopted policy for records retention and disposal. See R.C. 149.351. Nor does our decision suggest that the Public Records Act prohibits a public office from determining the period of time after which its e-mail messages can be routinely deleted as part of the duly adopted records-retention policy.

THANKS FOR ATTENDING!

QUESTIONS?

STEPHEN P. POSTALAKIS B L A U G R U N D , H E R B E R T , K E S S L E R , M I L L E R ,

M Y E R S & P O S T A L A K I S , I N C O R P O R A T E D 3 0 0 W E S T W I L S O N B R I D G E R O A D , S U I T E 1 0 0

W O R T H I N G T O N , O H I O 4 3 0 8 5 ( 6 1 4 ) 9 2 3 - 3 1 1 2

S P P @ B H M L A W . C O M

O H I O A S S O C I A T I O N O F C O U N T Y B O A R D S S E R V I N G P E O P L E W I T H

D E V E L O P M E N T A L D I S A B I L I T I E S 2 0 1 3 A N N U A L C O N V E N T I O N

Physical Examinations

OAC 5123:2-1-02(I)

(5) The county board shall maintain in a separate medical file a record of a physical examination current within sixty days of the date of hire (a physical examination completed within one year prior to the date of hire is acceptable). The county board may not require the applicant to pay the cost of a physical examination as a condition of employment.

The Law - ADA

The ADA allows medical examinations only after an applicant has been given a conditional job offer.

The ADA prohibits asking an applicant disability related questions prior to extending a conditional offer. Asking an applicant if they can perform the job

with or without a reasonable accommodation, or even asking them to demonstrate how they would perform the job is lawful.

The Law

Employer may require a medical examination after making an offer of employment to an applicant and before the applicant begins his/her employment duties, and may condition an offer of employment on the results of such examination, if all entering employees in the same job category are subjected to such an examination regardless of disability. See 29 C.F.R. 1630.14(b).

Such medical examinations do not have to be job-related and consistent with business necessity. However, if certain criteria are used to screen out an employee or employees with disabilities as a result of such an examination or inquiry, the exclusionary criteria must be job-related and consistent with business necessity, and performance of the essential job functions cannot be accomplished with reasonable accommodation. See 29 CFR 1630.14(b)(3).

The Other Law - GINA

Genetic Information Nondiscrimination Act of 2008 prohibits employers from using, or even acquiring genetic information.

Genetic Information includes family history, genetic tests, information about the manifestation of any disease, information about the persons request for or receipt of genetic services, or participation in any clinical research that involves genetic information.

Both ADA and GINA Prohibit

Discrimination Harassment Retaliation Disclosure/Possession of health information It is easier to defend accusations of a violation if you

do not possess the information at all, and a complete physical examination would likely reveal the information.

So How Does a Board Comply With the Law?

Unless employee has a record of a physical examination in the past year, simply ask the physician to determine whether the employee can perform the essential functions of the job, providing a job description.

Also make certain the health care provider doesnt give you health information you cannot have.

GINA Warning to Health Care Providers

The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of an individual or family member of the individual, except as specifically allowed by this law. To comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information. "Genetic information," as defined by GINA, includes an individual's family medical history, the results of an individual's or family member's genetic tests, the fact that an individual or an individual's family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual's family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services.

Use the GINA Warning when:

Requesting information from a health care provider: Physical examination upon hire For FMLA certification Fitness for duty testing Sick leave verification/investigation Drug testing

Best to use the safe harbor clause every time health information is request