From Judy Gilleland - City Manager
A recent decision by the Supreme Court of Ohio in the case of Rhodes v. City of New Philadelphia, 2011-Ohio-3279, will result in a significant change to Ohio’s public records law. The Supreme Court stated: The destruction of a public record in violation of R.C. 149.351(A) gives rise to a forfeiture to any person who is “aggrieved” by the destruction – A party is not “aggrieved” by the destruction of a record when the party’s objective in requesting the record is not to obtain the record but to seek a forfeiture for the wrongful destruction of the record.
In this case, Rhodes requested reel-to-reel audio tapes of 911 calls. New Philadelphia had destroyed the tapes without the use of an approved records retention policy. Under R.C. 149.351, Rhodes filed a lawsuit seeking $1,000 for each of the 4,968 violations, which represented each of the calls on all of the tapes, the equivalent of nearly 5 million dollars plus attorneys’ fees.
The primary dispute in the case was whether or not Rhodes was aggrieved by the improper disposal of the 911 tapes. Ultimately, the jury returned with a unanimous verdict in favor of New Philadelphia finding that Rhodes was not aggrieved by the unauthorized disposal of the records. Rhodes filed an appeal with the Fifth District Court of Appeals who reversed the decision of the trial court finding that Rhodes was aggrieved because he made a lawful records request and he was not given those records.
New Philadelphia appealed to the Supreme Court of Ohio who accepted discretionary jurisdiction over the appeal. The Supreme Court ruled that a person is not aggrieved by the destruction of a public record when the requester’s only intent was to prove the non-existence of the record. As a result, New Philadelphia will not have to pay out the nearly $5 million in forfeiture awards.
In other public records law news, prior to the release of the above opinion, the Ohio legislature made significant changes to the penalties for improperly destroying public records. Changes to R.C. 149.351 include the following:
Once a person recovers a forfeiture in a civil action commenced under division (B) (2) of this section, no other person may recover a forfeiture under that division for a violation of division (A) of this section involving the same record, regardless of the number of persons aggrieved by a violation of division (A) of this section or the number of civil actions commenced under this section.
A civil action for injunctive relief under division (B)(1) of this section or a civil action to recover a forfeiture under division (B)(2) of this section shall be commenced within five years after the day in which division (A) of this section was allegedly violated or was threatened to be violated.
A civil action to recover forfeiture in the amount of one thousand dollars for each violation, but not to exceed a cumulative total of ten thousand dollars, regardless of the number of violations, and to obtain an award of the reasonable attorney's fees incurred by the person in the civil action not to exceed the forfeiture amount recovered.
A person is not aggrieved by a violation of division (A) of this section if clear and convincing evidence shows that the request for a record was contrived as a pretext to create potential liability under this section. The commencement of a civil action under division (B) of this section waives any right under this chapter to decline to divulge the purpose for requesting the record, but only to the extent needed to evaluate whether the request was contrived as a pretext to create potential liability under this section.
In a civil action under division (B) of this section, if clear and convincing evidence shows that the request for a record was a pretext to create potential liability under this section, the court may award reasonable attorney's fees to any defendant or defendants in the action.