Ohio Supreme Court hears arguments in watchdog group’s records dispute with state attorney general

COLUMBUS, Ohio– The Ohio Supreme Court heard oral arguments Wednesday in a long-running public records case, pitting the state’s top law enforcement official against a national watchdog group investigating his ties to the Republican Attorney Generals Association.

At issue is whether GOP Attorney General Dave Yost should be required to provide records to an appeals court, at the request of the Center for Media and Democracy, relating to the Republican nonprofit and its fundraising section, the Rule of Law Defense. Fund. Yost’s office is also fighting a magistrate’s order requiring the attorney general’s removal in the now five-year-old case.

The center, a research group, is looking for data from a period when RAGA — a nonprofit organization that accepts corporate donations — sent a letter to the U.S. Environmental Protection Agency opposing clean air restrictions, and that was signed by the Republican attorneys general. More recently, the association came under fire for calling on thousands of Donald Trump supporters to march on the US Capitol on January 6, 2021.

Ohio Deputy Chief Attorney General Michael Hendershot told the court Wednesday that his decision could impact the state’s public records law.

“Fundamentally, this is a question of if this case sets a precedent for the impeachment of an attorney general, then it would be open season for lawsuits and the weaponization of the public records for witch hunts by all,” Hendershot said.

The center initially requested the documents in March 2020, including data related to RAGA’s winter meeting that year.

Yost responded at the time that his office had no relevant documents to turn over or that the information sought was not a document. As part of a legal challenge by the center, a Tenth District magistrate ordered his office to answer a series of questions about the communications and then ordered him to produce certain documents for private review behind closed doors.

The lower court said a review of the requested materials would help determine whether they were public documents or not — depending on factors such as whether the communications were conducted on state time, conducted by government employees or related to Yost’s official duties.

Yost appealed the magistrate’s orders to the state Supreme Court, arguing in part that the search for the requested records would potentially reach the communications of Republican attorneys general in other states, as well as the personal email accounts of his own staff and the campaign.

He has also said the discovery could potentially reveal irrelevant information unrelated to RAGA or its fundraising arm, such as communications about lawsuits his office could be involved in, for example against an e-cigarette manufacturer or Google.

Chief Justice Sharon Kennedy wondered Wednesday whether the lower court’s order might be asking too much of the state — producing information instead of documents. Judge Jennifer Brunner, the panel’s only Democrat, wondered whether it would be a slippery slope to let officials decide for themselves that data is not public.

“Depending on how this decision plays out, if an official decides to engage in illegal or unethical behavior, they would simply do so via a private email and the public would likely not be able to find out,” she said.

Jeffrey Vardaro, the attorney for the Center for Media and Democracy, reminded the court that the outstanding order would only allow the Tenth District magistrate — and not the center or the general public — to review certain documents. He said this undermines the state’s argument that the lawsuit is intended to harass or embarrass Yost, who he said is tasked with enforcing Ohio’s public records law.

Vardara warned the court against making a decision that could allow a government official to unilaterally determine that “entire categories of what should be public records are not public,” thus preventing courts from intervening, and the official would allow “to refuse to testify about what the court did.” records even passed.”

“And so the Sunshine Act would turn it into a black box,” he added.

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