The Montgomery County Board of Elections must release two emails related to the contested placement of a county commissioner candidate on the 2024 primary election ballot, the Supreme Court of Ohio ruled today.

A Supreme Court majority found the Board of Elections improperly withheld emails from the county prosecutor that included an attached legal memorandum regarding a protest by leaders of the Montgomery County Democratic Party to the placement of Mary McDonald on the primary election ballot as a Republican candidate for county commissioner. The Court also ordered the board to turn over an email from the board’s assistant director that he emailed to his personal account, which led to the leak of the prosecutor’s legal recommendations to the board.

The Court’s per curiam opinion awarded Joseph J. Platt, who is only identified as an Ohio resident, $1,000 in statutory damages from the board, court costs, and attorney fees. Documents filed in the case indicated that Platt’s attorney, Curt Hartman, represented McDonald during the challenge to her candidacy.

Russell Joseph, the board’s deputy director, admitted during the board’s internal investigation of the leak that he forwarded the memo to Mohamed Al-Hamdani, the chairman of the Montgomery County Democratic Party. The board issued Joseph a “letter of counseling” and required him to undergo public records training.

Chief Justice Sharon L. Kennedy and Justices R. Patrick DeWine, Jennifer Brunner, Joseph T. Deters, Daniel R. Hawkins, and Megan E. Shanahan joined the opinion.

Justice Patrick F. Fischer concurred in part and dissented in part without a written opinion. He stated he would not have awarded damages.

Memo Circulated Among Politically Connected Readers
In December 2023, McDonald filed a petition to be on the March 2024 primary election ballot as a  Republican challenger for a seat on the Montgomery County Board of Commissioners. The Democratic candidate for the seat was the unopposed incumbent Debbie Lieberman.

Al-Hamdani, along with Brenda Blausser, challenged McDonald’s placement. The protestors alleged McDonald was not qualified to be on the ballot as a Republican candidate because she was an elected member of the Montgomery County Democratic Party Central Committee and had not resigned from that office.

Al-Hamdani is not only the party chair but also a partner of the law firm Flanagan, Lieberman & Rambo. Another partner in the firm is Dennis Lieberman, the husband of Debbie Lieberman, McDonald’s would-be opponent in the general election.

The board conducted a protest hearing. The lawyer representing the protestors referred to a “legal memorandum from the county prosecutor’s office,” and said he received the memo from Dennis Lieberman. At the hearing, Jeff Rezabek, the elections board director, stated the memo was a legal opinion requested by the board  and was not to be disclosed because it was covered by “attorney-client privilege.”

Election Matter Settled, But Records Dispute Continued
After hearing the protest, the board deadlocked 2-2 on whether to place McDonald on the ballot. Secretary of State Frank LaRose cast the tie-breaking vote to allow McDonald to be on the primary ballot, and she was selected as the Republican candidate. She went on to defeat Lieberman in the November 2024 general election.

Rezabek called for a full investigation into the leak of the memorandum. The investigation found the prosecutor’s memo was emailed to the four board members, Rezabek, and Joseph. Shortly after receiving the memo, Joseph forwarded the email, which had the memo as an attachment, to his personal email account.

Joseph forwarded the email from his personal account to Al-Hamdani. Al-Hamdani forwarded it to Dennis Lieberman, who forwarded the memo to the attorney representing the protestors at the hearing.

As the investigation was pending, Hartman, as Platt’s attorney, requested from Rezabek all emails regarding the prosecutor’s memo. Hartman noted he was not seeking the memo itself, but rather the emails indicating who was transmitting them.

Rezabek replied that the documents Hartman requested were exempt from the Ohio Public Records Act by attorney-client privilege and that the board had no access to the other records Hartman requested. Hartman clarified that his records request was only for emails transmitting the memo, including emails by the board and its staff forwarding the memo to their personal email accounts.

Rezabek replied that some of the confusion is attributed to the board not maintaining its own email system but rather using an email system maintained and managed by the secretary of state’s office.

When the email request was denied, Platt sought a writ of mandamus from the Supreme Court in March 2024 to compel the board to release the emails. In his complaint, Platt contends the “leaking” of the memo “to operatives of the Montgomery County Democratic Party” was part of an effort to keep McDonald from challenging Lieberman for the commissioner seat.

The board asked the Court to dismiss the suit, arguing it had fully responded to the records request and complied with the law. The board had also waived the attorney-client privilege and made the prosecutor’s legal memorandum available.

The Court rejected the request to dismiss the case and ordered the board to file the disputed records for an in-camera inspection.

Supreme Court Analyzed Records Request
The Court noted that under a provision of the Public Records Act, R.C. 149.43(B)(1), a public office must make copies of public records available within a reasonable period of time.

The opinion noted that Platt’s request focused on three emails sent on Jan. 10, 2024, as the board prepared to conduct the hearing protesting McDonald’s candidacy. The emails included the one sent by the prosecutor’s office with the legal memo attached to the board members, Rezabek, and Joseph. The other two emails were the one Joseph sent from his board email account forwarding the legal memo to his personal account and the email from Joseph’s personal account that he sent to party chairman Al-Hamdani.

The Court noted that Platt indicated he was not seeking the memo itself. Platt wanted to see the rest of the content of the email that was transmitted. The opinion stated the Court has found a communication does not have to contain purely legal advice to still be protected from disclosure by the attorney-client privilege. If the communication “would facilitate the rendition of legal services or advice,” then the communication does not have to be released, the opinion stated.

After reviewing the email, the Court found the only legal advice the prosecutor provided was in the attached memo, not the email itself.

“The email did not reveal any client confidences or contain any substantive text relating to the legal advice from the prosecutor’s office to the board,” the opinion stated.

The Court ordered the transmittal email from the prosecutor’s office to be released to Platt.

The Court also found Joseph forwarded the prosecutor’s email to his personal account 23 minutes after receiving it from the prosecutor’s office. The email had no text in the message section. It only had the attached memo, and was sent only to Joseph’s email.

The board argued that Joseph’s email to himself is not a public record because it does not meet the definition of a “record” under R.C. 149.011(G). The board maintained it is not a record because it does not document the public business of the board.

The Court disagreed, finding that Joseph’s act of forwarding the memo documented the board's activity, even if the act was unauthorized. The forwarded prosecutor’s email documented activity of the board, namely, the provision of legal advice the board requested. Joseph’s email from his board email account forwarding the memo documents board activity regardless of whether it is documented authorized or unauthorized activity, the Court concluded.

The Court ordered the email be disclosed to Platt.

The board argued there was no obligation to provide the third email, from Joseph to Al-Hamdani, because it was not a public record. The board maintained it was not “created or received” by the board. Platt argued the email reveals “malfeasance or misfeasance in office” and any emails revealing the behavior are public records that must be disclosed.

The Court noted that any records kept by a public office that reveal misconduct or malfeasance by a public official are public records. However, this case is different. The email sent from Joseph’s personal account was not a record kept by the board, which would make it a public record, the Court concluded.

Because two emails withheld from Platt were public records, however, the Court found the board violated the Public Records Act. It awarded Platt the maximum $1,000 in damages and court costs. Platt can seek attorney fees from the board, and the Court ordered him to file a statement indicating the amount of attorney fees he incurred.

2024-0325. State ex rel. Platt v. Montgomery Cty. Bd. of Elections, Slip Opinion No. 2025-Ohio-2079.

Please note: Opinion summaries are prepared by the Office of Public Information for the general public and news media. Opinion summaries are not prepared for every opinion, but only for noteworthy cases. Opinion summaries are not to be considered as official headnotes or syllabi of court opinions. The full text of this and other court opinions are available online.

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