A court of appeals must reexamine the scope of discovery in an Ohio Public Records Act case brought by a government watchdog group, Center for Media and Democracy, against Ohio Attorney General Dave Yost’s office regarding his activities with two national organizations, the Supreme Court of Ohio ruled today.

David Armiak, the center’s research director, sought public records about the attorney general’s involvement with the Republican Attorneys General Association (RAGA) and the Rule of Law Defense Fund (RLDF) and Yost’s attendance at RAGA’s 2020 winter meeting.  In discovery, the Tenth District Court of Appeals ordered Yost to produce various documents, respond to interrogatories, and sit for a two-hour deposition.

In a 6-1 decision, the Supreme Court found the Tenth District Court of Appeals misapplied the law and abused its discretion when it directed Yost and his office to respond and produce documents that were not relevant nor proportional to the needs of the public records action presented by the center. The Court vacated the Tenth District’s discovery order and ruled the appeals court did not adequately justify why Yost should be questioned in a deposition.

Writing for the Court majority, Justice Patrick F. Fischer explained that when a court orders discovery, it must limit the information to be exchanged to what is “relevant and proportional” under the Ohio Rules of Civil Procedure.

In a public records request, the relevant and proportional standard requires that discoverable information be limited to relevant information concerning whether the records requested by Armiak are public records under the Public Records Act and information concerning the attorney general’s defenses that the requested records are not public records under the act. The Tenth District directed the attorney general’s office to produce information beyond the scope of those limited issues, he stated.

“The court of appeals, in our view, placed the proverbial cart before the horse,” he wrote.
Chief Justice Sharon L. Kennedy and Justices R. Patrick DeWine, Joseph T. Deters, Daniel R. Hawkins, and Megan E. Shanahan joined Justice Fischer’s opinion.

In a dissenting opinion, Justice Jennifer Brunner wrote that the majority opinion did not provide guidance for a new or more measured way for courts to establish the proper scope of discovery in a public records case, but rather substituted its judgment for that of the Tenth District.

She noted that during the extensive legal proceedings between Armiak and Yost, the attorney general’s defenses for not releasing information have shifted and evolved. At one point, Yost admitted some documents in his office relating to RAGA and RDLF may be records subject to the Public Records Act.

“The approach employed by the court of appeals in determining what information would be relevant to the claims and defenses of the parties was not unreasonable, especially in light of the attorney general’s office’s evasive conduct and evolving defenses,” she wrote.

Group Seeks Public Records
The Center for Media and Democracy describes itself as a “nonpartisan anti-corruption watchdog group.” Armiak submitted the group’s public records request to the attorney general’s office in March 2020, asking for all records that Yost possessed pertaining to RAGA, RLDF, and the RAGA winter meeting. The request sought information from Yost and his chief of staff. It indicated the records should include “emails, attachments, both sent and received, draft records, briefing books, memo, notes, minutes, scheduling records, text messages, other correspondence (internal and external), and all other records.”

The attorney general’s office declined to produce the requested records, stating that the documents are not records of the office. Armiak responded with an email stating that the attorney general’s and chief of staff’s interactions with RAGA and RLDF involved “extensive matters of public policy and the conduct of public business.” He wrote that Yost and his staff members attended events of both groups in their official capacities.

The office informed Armiak it had no “email, test, drafts, memo, minutes, or other correspondence records” that were requested, and the other information he sought did not meet the definition of a “record” under the Public Records Act, R.C. 149.43.

Armiak sought a writ of mandamus from the Tenth District to compel the attorney general to fulfill his public records request. An appeals court magistrate was assigned to oversee the case. The magistrate granted Armiak’s request for discovery so that he could challenge the attorney general’s contention that the requested records he sought were not public records.

Armiak presented the attorney general with eight interrogatories, and 16 requests for documents. The attorney general’s office rejected most of the requests, arguing that the information Armiak was seeking covered far more topics than what was in his public records request. The magistrate granted Armiak’s request to force Yost to produce the information requested in discovery, some of which would go to the magistrate first for an in camera review to determine if they should be released.

Armiak also requested and received permission to take the depositions of several Yost staff members. Yost sought a protective order to prevent Armiak from deposing him and his former solicitor general.

Yost appealed the order and requirement that he sit for a deposition to the Supreme Court.

Supreme Court Analyzed Scope of Discovery
Under the Public Records Act, any person can request a public record from a public office, the opinion noted. For a document to be considered a “public record,” it must first meet the definition of a “record” under R.C. 149.011(G), which states that records are “any document, device, or item … created or received by or coming under the jurisdiction of any public office of the state … which serves to document the organization, functions, policies, decisions, procedures, operations, or other activities of the office.”  However, some records are exempt from disclosure under R.C. 149.43, because they do not meet the definition of public record.

Justice Fischer wrote the rules of discovery allow for access to information that is relevant to the parties' claims or defenses and that is proportional to the needs of the case.  But he emphasized that a court’s discovery order cannot act as a tool to circumvent the restrictions in R.C. 149.43(A)(1) and allow parties to access documents that the law does not require to be disclosed.

The opinion noted that discovery in Ohio courts is governed by Civil Rule 26, and the exchange of information between parties must be limited to what is relevant and proportional, which takes into consideration such things as the parties’ access to information, the importance of the information in resolving the dispute, and whether the burden and expense of gathering the information outweigh the benefits.

The Court looked at how federal courts oversee discovery in federal Freedom of Information Act lawsuits where federal government offices are asked to produce records. Based on its review, the Court concluded that discovery in a state public records act case should be limited the nature of the public office’s search for responsive records and information relevant to the claims and defenses asserted by the parties.

In relation to Armiak’s claims, the court should have limited discovery to evidence that he made a proper  public records request and the office withheld records that constitute public records. Questions related to Yost’s defenses should have been limited to evidence that the items Armiak requested did not meet the definition of a record maintained by the attorney general’s office.

The Court remanded the matter to the Tenth District to refine the scope of discovery Armiak may request.

Ruling Limits Transparency, Dissent Asserts
In her dissent, Justice Brunner maintained that the appellate magistrate’s discovery order was consistent with the three rules regarding discovery in public records cases outlined by the Court’s majority. She criticized the majority opinion for not announcing any new standards, but instead, limiting the broad discretion a court of appeals has in overseeing discovery during a lawsuit filed originally in that court.

She stated that both the limits the high court decision places on Armiak’s request and the order vacating the appellate court’s order to depose Yost limit transparency in Ohio’s government. Public scrutiny through broad access is a right of Ohioans, she wrote, and she expressed “grave doubt that the people of Ohio consent to their government operating in secrecy.”

2023-0270. State ex rel. Ctr. For Media & Democracy v. Yost, Slip Opinion No. 2026-Ohio-1899.

View oral argument video of this case.

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