“From Privileged Memo to Public Record” – The Ohio Supreme Court’s New Two-Track Rule on Transmittal E-mails and Unauthorized Forwards
Commentary on State ex rel. Platt v. Montgomery Cty. Bd. of Elections, 2025-Ohio-2079

1. Introduction

The Supreme Court of Ohio’s opinion in State ex rel. Platt v. Montgomery Cty. Bd. of Elections delivers one of the most nuanced clarifications of Ohio’s Public Records Act (R.C. 149.43) in recent memory. Arising out of a highly charged partisan battle over a county-commissioner candidacy, the case pits Relator Joseph J. Platt—through counsel Curt Hartman—against Respondents, the Montgomery County Board of Elections (BOE) and its Deputy Director, Russell M. Joseph.

Central to the dispute were three January 10 2024 e-mails that transmitted a confidential legal memorandum (“the memo”) authored by the Montgomery County Prosecutor’s Office:

1. The prosecutor’s office e-mail to BOE members and staff attaching the memo.
2. Deputy Director Joseph’s forward of that e-mail (with attachment) from his BOE account to his personal account.
3. Joseph’s further forward from his personal account to Mohamed Al-Hamdani, chair of the County Democratic Party.

Platt requested copies of the e-mails only (not the memo) under the Public Records Act. The BOE refused, citing attorney–client privilege and lack of access. Litigation followed, raising three core issues:

• Are bare transmittal e-mails that attach a privileged memo themselves privileged?
• Does an unauthorized self-forward by a public official, using an official account, qualify as a public record?
• Does a similar forward, once it leaves government infrastructure (personal-to-private), remain a public record?

2. Summary of the Judgment

Delivering a per curiam opinion, the Court (Kennedy, C.J., joined by DeWine, Brunner, Deters, Hawkins, Shanahan; Fischer concurring in part/dissenting on damages) granted Platt partial mandamus relief:

• Ordered Disclosure of the prosecutor’s initial transmittal e-mail (not the attached memo) and of Joseph’s BOE-to-personal forward.
• Denied Disclosure of Joseph’s personal-to-party-chair forward, finding it not “kept by” a public office.
• Rejected Platt’s request for an organizational records mandate.
• Awarded statutory damages (maximum $1,000), court costs, and attorney-fee eligibility (subject to fee petition).

Two doctrinal pillars emerged:

1. Transmittal-Only E-mails are not automatically cloaked by attorney–client privilege when they merely shuttle an attached privileged document and contain no substantive client confidences.
2. An e-mail can be a “public record” even if the activity it documents was unauthorized by policy; the question is whether it documents the office’s activities, not whether those activities were proper.

3. Detailed Analysis

3.1 Precedents Cited and Their Influence

• State ex rel. Dispatch Printing Co. v. Johnson, 2005-Ohio-4384 – foundational three-part test defining a public record. The Court relied on its “documents, received/created, and documentation of activity” prongs.
• State ex rel. Lanham v. DeWine, 2013-Ohio-199 – recognized attorney–client privilege as “state law prohibiting release.” Used to frame—but ultimately distinguish—the privilege question.
• State ex rel. Leslie v. Ohio Hous. Fin. Agency, 2005-Ohio-1508 – articulated eight-factor test for attorney–client privilege; cited to show privilege scope.
• State ex rel. McCaffrey v. Mahoning Cty. Prosecutor’s Office, 2012-Ohio-4246 – precedent for redaction rather than wholesale withholding.
• Federal persuasive authority: Gucci America, Inc. v. Guess?, Inc., 271 F.R.D. 58 (S.D.N.Y. 2010) & companion district-court cases finding transmittal e-mails non-privileged. Though not binding, these cases supplied the analytical rationale adopted.
• State ex rel. Brinkman v. Toledo City School Dist. Bd. of Edn., 2024-Ohio-5063 – cited both for discretion in using federal guidance and for attorney-fee standards.

The Court wove this precedent into a two-step approach: first, assess privilege; second, assess public-record status. Federal transmittal-e-mail jurisprudence filled a lacuna in Ohio authority, enabling the Court to draw a sharp privilege boundary.

3.2 The Court’s Legal Reasoning

3.2.1 Privilege Analysis

“Though the subject line discloses the matter to which the legal advice pertains, that fact does not make the e-mail privileged.”  — Opinion ¶ 24

Applying the Lanham/Leslie factors, the Court found that only communications relating substantive legal advice or revealing client confidences are privileged. The transmittal e-mail merely said “Attached please find …” and therefore failed factor 3 (communication “relating to legal advice”) and factor 4 (made in confidence). Even if the attachment was privileged, the container was not.

3.2.2 Public-Record Analysis

For Joseph’s BOE-to-personal forward, respondents argued illegality/policy violation negated record status. The Court rejected that “authorization” overlay, stressing textual fidelity to R.C. 149.011(G): any document that “serves to document” activity is a record. Whether the activity is authorized, unauthorized, or downright wrongful is irrelevant.

Conversely, the personal-to-party-chair e-mail flunked the “kept by a public office” element; the BOE never possessed or maintained it. The Court drew a bright line: once a record leaves governmental custody and resides solely on a private platform, it is not subject to the Act—unless later reacquired or used by the agency.

3.2.3 Damages & Fees

Finding a violation of R.C. 149.43(B) triggered mandatory statutory damages and costs. The Court further clarified that bad faith is not a prerequisite for attorney fees when a writ actually issues; bad faith matters only when disclosure occurs pre-judgment.

3.3 Anticipated Impact

• Day-to-day records compliance: Public offices must treat every transmittal e-mail as potentially disclosable, irrespective of any privileged attachment. IT departments may need new retention tags distinguishing “cover e-mails” from content.
• Training & discipline: Unauthorized forwards are now explicitly deemed disclosable. Employees may face a paradox: policy prohibits forwarding, but doing so enlarges the universe of public records subject to inspection.
• Litigation strategy: Requesters can surgically tailor requests to avoid privilege tangles by seeking only metadata or cover e-mails. Conversely, offices must assert privilege with precision, redacting rather than wholesale withholding.
• Attorney–client doctrine: The decision aligns Ohio with federal authority limiting privilege to substantive exchanges, guarding against over-broad privilege claims that impede transparency.
• Cloud & third-party servers: Hosting by another state entity (the Secretary of State here) does not absolve an agency of access duty. Agencies cannot use outsourced infrastructure as a shield.

4. Complex Concepts Simplified

Mandamus

A court order compelling a public official to perform a clear legal duty.

Public Record (Ohio)

Any item kept by a public office that documents its activities, provided no statutory exemption applies.

Attorney–Client Privilege

Legal rule keeping confidential communications between lawyer and client secret, but only when the communication seeks or gives legal advice.

Transmittal E-mail

A “cover” e-mail whose sole purpose is to attach or forward another document, typically containing no substantive text.

Statutory Damages

Fixed monetary amount ($100/day up to $1,000) awarded when a public office unlawfully withholds records.

5. Conclusion

Platt cements two critical propositions in Ohio public-records jurisprudence:

1. E-mails that merely convey privileged documents are not necessarily privileged themselves.
2. An e-mail documenting agency activity is a public record even if the act was unauthorized, whereas an e-mail never possessed or maintained by the agency is not.

By disentangling privilege from transmission and by focusing on documentation—not legitimacy—of government activity, the Court fortifies transparency while preserving genuine attorney-client confidences. Public bodies must now audit their e-mail practices, and requesters gain a clearer roadmap for targeted records requests. In an era where information often moves at the click of “Forward,” Platt recalibrates the interface between confidentiality and accountability for Ohio’s digital governance landscape.