At issue is whether Yost should be required to provide records to an appeals court that had been requested by the Center for Media and Democracy.
In Columbus, Ohio, the Ohio Supreme Court recently held oral arguments in a prolonged legal battle over public records. The case involves the state’s Attorney General, who is facing scrutiny from a national watchdog group investigating his connections with the Republican Attorneys General Association.
The main issue revolves around whether Attorney General Dave Yost should disclose requested records to an appeals court. These records, sought by the Center for Media and Democracy, relate to the nonprofit Republican association and its fundraising entity, the Rule of Law Defense Fund. Yost’s office is contesting a magistrate’s directive to have the attorney general submit to questioning in this ongoing case that has spanned five years.
The Center for Media and Democracy, an investigative organization, aims to obtain records from a period when the Republican Attorneys General Association, which accepts corporate donations, coordinated a letter opposing environmental regulations to the U.S. Environmental Protection Agency. More recently, the association faced criticism for mobilizing thousands of Donald Trump supporters to participate in the January 6, 2021, march on the U.S. Capitol.
Chief Deputy Ohio Solicitor General Michael Hendershot told the court Wednesday that its decision could have ramifications for public records law in the state.
“Essentially, this is a question of if a precedent is set for a deposition of an attorney general in this case, it would be open season for lawfare and the weaponization of the public records act for witchhunts by everybody,” Hendershot said.
The center initially requested the documents in March 2020, including records associated with RAGA’s winter meeting of that year.
Yost, who has announced his intentions to run for Ohio governor in 2026, responded at the time that his office had no pertinent records to turn over or that the information being sought wasn’t a record. 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 subsequently directed him to produce certain documents for private, in-camera review.
The lower court said a review of the requested materials would help it determine whether they were public records or not — dependent on factors such as whether the communications were carried out on state time, were conducted by public employees or involved Yost’s official duties.
Yost appealed the magistrate’s orders to the state’s high court, arguing in part that searching for the requested records would potentially reach into the communications of Republican attorneys general in other states as well as his own staff’s personal and campaign email accounts.
He has also said that the discovery could potentially sweep in irrelevant information having nothing to do with RAGA or its fundraising arm, such as communications about multistate lawsuits his office might be involved in, say, against an e-cigarette maker or Google.
Chief Justice Sharon Kennedy asked Wednesday whether the lower court’s order might be asking too much of the state — for it to produce information, as opposed to records. Justice Jennifer Brunner, the panel’s lone Democrat, asked whether allowing the public official to determine on their own that records aren’t public would be a slippery slope.
“Depending on how this decision comes out, if an official decided to engage in illegal or unethical behavior, he would just simply do it on a private email and the public would probably not be able to find out,” she said.
Jeffrey Vardaro, the Center for Media and Democracy’s attorney, reminded the court that the outstanding order would merely allow the Tenth District magistrate — not the center or the public at large — to review certain documents. He said that undercuts the state’s argument that the lawsuit is intended to harass or embarrass Yost, who he reminded has the job of enforcing Ohio’s public records law.
Vardara warned the court against making a decision that could allow a public official to unilaterally determine that “entire categories of what should be public records are not public,” prevent courts from weighing in, and empower the official to “refuse to testify about what the records were even about.”
“And so it would take the Sunshine Act and turn it into a black box,” he added.
