Two anonymous Hamilton County Democrats are suing the City of Cincinnati, the company it contracted to extract texts from elected officials' phones and the attorney who sued to obtain those texts, claiming the release of the messages violated their constitutional rights.
The results of the suit could help settle a vexing question: Which communications sent by public officials are public records?
In the lawsuit filed June 24 in U.S. District Court, the two unnamed Hamilton County residents say they corresponded with some of the five members of Cincinnati City Council caught up in a complex controversy originally stemming from the attempted ouster of Cincinnati City Manager Harry Black by Mayor John Cranley last year. But that correspondence wasn't about city business, the plaintiffs say, and the collection of those messages about social plans, political organizing and other items unrelated to official city business is a violation of their civil rights.
After council members Tamaya Dennard, Greg Landsman, Chris Seelbach, P.G. Sittenfeld and Wendell Young released a joint statement protesting Black's impending firing, conservative activist Mark Miller and his attorney Brian Shrive filed public records requests and a lawsuit in April last year, saying that texting among the five amounted to open meetings violations.
The city released some of those texts among the five council members last year. After Hamilton County Judge Robert Ruehlman ruled in favor of Miller and Shrive, the city paid $101,000 in legal fees and penalties and over time released more than 600 pages of text messages among and between the five council members, Cranley, Black and politically-involved private citizens, including former Cincinnati mayor Dwight Tillery and others.
According to the suit, Binary Intelligence copied the entire contents of council members' private cell phones generated between January and October of 2018.
It is unclear who filed the lawsuit. The plaintiffs have asked Judge Michael Barrett to keep their identities secret to protect their privacy. The suit alleges that the collection of the text messages, ordered by the city after requests from Shrive and carried out by a company called Binary Intelligence, violates the plaintiffs' First Amendment free speech rights, their Fourth Amendment protections from search and seizure without a warrant and for Fourteenth Amendment due process rights. The lawsuit also alleges that Shrive unlawfully released the texts to media outlets.
"The City had no probable cause to believe that John Doe 1, John Doe 2, and the class’s communication with the council members constituted a crime or was evidence of any crime," the lawsuit filed by attorney Jennifer Kinsley states. "As such, the City had no basis for seizing the communication and has no basis for continuing to maintain and review it."
The lawsuit is seeking monetary damages as well as a court order preventing any party from holding on to, reading or sharing any messages involving the plaintiffs. The plaintiffs have also requested that Barrett allow the suit class-action status, which could open it up to any other member of the public who corresponded with the five council members during the period in question.