Party must be 'aggrieved' for public records destruction forfeiture
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The Supreme Court of Ohio this week ruled 7-0 that the destruction of a public record in violation of R.C. 149.351(A) gives rise to a forfeiture only if the requester was “aggrieved” by the destruction. The Supreme Court found that a party is not aggrieved if it cannot demonstrate that it actually wanted the records sought.
A provision of the Ohio Public Records Act provides that if a city or other political subdivision of the state destroys or otherwise disposes of public records in a manner that is not authorized under the city’s official records retention policy, or without authorization from the Ohio Historical Society (OHS), any person who is “aggrieved” by the improper destruction of those records may file suit and obtain a $1,000 civil forfeiture (cash award) from the political subdivision for each record that was improperly disposed. In this case, the Supreme Court was asked whether a person requesting public records that have been improperly destroyed is automatically “aggrieved” and therefore eligible to recover a civil forfeiture simply because the requested records were not available, or if a person seeking the records must show that he or she suffered some actual harm or prejudice as a result of the destruction of the records.
In 2007, Timothy Rhodes sent public records requests to the city of New Philadelphia and several other northeast Ohio communities asking for access to reel-to-reel audio tapes the cities’ police departments may have used to document the daily radio calls made to and from their police dispatchers between 1975 and 1995. All of the communities responded that they had long since ceased using that technology and had disposed of the tapes and tape machines, and therefore were unable to provide the requested records. All of the jurisdictions except New Philadelphia also documented that their destruction of tapes had been accomplished pursuant to their official records retention policies and with the consent of the OHS. Upon further inquiry, Rhodes determined that New Philadelphia had never adopted or filed a city records retention schedule/disposal policy with the OHS, and had not obtained the society’s authorization before erasing and ultimately disposing of the reel-to-reel tapes it had used to document dispatcher calls between March 1989 and December 1995.
After obtaining that information, Rhodes filed suit against New Philadelphia under R.C. 149.351(B)(2), alleging that the city’s disposal of its dispatcher tapes had not been accomplished in compliance with the Public Records Act. Based on the fact that the New Philadelphia police had reused the same tapes over a period of more than six years, erasing the contents of two tapes each day and reusing them to record the new day’s calls, Rhodes asserted that the city had improperly destroyed 730 public records each year for six years and nine months, totaling 4,968 violations. Based on that calculation, Rhodes sought a $1,000 civil forfeiture for each violation, resulting in a total claim of $4,968,000.
Both the city and Rhodes filed motions for summary judgment. The trial court denied both sides’ motions, finding that there was a material question of fact regarding whether Rhodes was “aggrieved” by the city’s failure to provide the requested tapes. When the case was tried to a jury, evidence was presented showing that Rhodes had no interest in actually receiving or reviewing the missing tapes, but had requested them for the sole purpose of collecting forfeitures from the city based on their improper destruction. The jury entered a verdict in favor of the city, finding that Rhodes was not “aggrieved” by the destruction of the tapes.
Rhodes appealed. On review, the Fifth District Court of Appeals vacated the trial court’s judgment and remanded the case with a directive to issue summary judgment in favor of Rhodes on the question of liability (i.e., to find that Rhodes qualified as an aggrieved person eligible to seek forfeitures for the missing records), and to conduct a new trial limited to the issue of how many “violations” of the Public Records Act had been committed by the city’s erasures of its dispatcher tapes. In its opinion, the appeals court specifically held that the trial court should have granted Rhodes’ pretrial motion for summary judgment because the only showing a plaintiff must make to qualify as an aggrieved person under R.C. 149.351(B)(2) is that he or she had been denied access to requested public records because those records had been unlawfully destroyed.
New Philadelphia sought and was granted Supreme Court review of the Fifth District’s ruling. Oral argument took place on April 20.
In an opinion authored by Justice Yvette McGee Brown, the Supreme Court reversed the decision of the Fifth District Court of Appeals finding that Rhodes was not aggrieved by New Philadelphia’s improper destruction of the recordings on its reel-to-reel tapes.
“If a public office is able to establish that the requester did not actually want the records and instead wanted the request to be denied, then a finder of fact may conclude that the requester was not aggrieved by the destruction,” Justice McGee Brown wrote. “New Philadelphia was able to establish through competent credible evidence that Rhodes’s objective was not to obtain the records he requested but to receive notice that the records had been destroyed in violation of R.C. 149.351(A) so that he could seek forfeiture awards.”
In her analysis, Justice McGee Brown distinguished between the terms “aggrieved” and “any person” seeking public records.
“We cannot ignore the General Assembly’s use of the term ‘aggrieved,’ and we conclude that the General Assembly did not intend to impose a forfeiture when it can be proved that the requester’s legal rights were not infringed, because the requester’s only intent was to prove the nonexistence of the records,” she wrote.
“The requirement of aggrievement indicates that a forfeiture is not available to ‘any person’ who has made a request and discovered that the records were not available due to the public office’s violation of R.C. 149.351; it is available only to a person who made a request with the goal being to access the public records,” she continued. “If the goal is to seek a forfeiture, then the requester is not aggrieved. The presumption, however, is that a request for public records is made in order to access the records.”
To illustrate the distinction, Justice McGee Brown cited two previous Supreme Court cases: Kish v. Akron and State ex rel. Morgan v. New Lexington.
“Like the relator in Morgan, Rhodes was under no obligation to explain his reason for wanting the public records in order for his request to be valid,” she wrote. “What distinguishes Rhodes’s case from cases such as Morgan and Kish is the simple fact that Rhodes did not actually want the records.
“When a party requests access to public records with the specific desire for access to be denied, it cannot be said that the party is using the request in order to access public records; he is only feigning that intent,” she continued. “Here, Rhodes feigned his intent to access public records when his actual intent was to seek forfeiture awards. Consequently, the jury correctly concluded that Rhodes was not aggrieved by the destruction of the records he had requested. The trial court’s denial of Rhodes’s motion for summary judgment on the issue of aggrievement and the entry of the jury’s verdict in favor of New Philadelphia therefore did not contain reversible error.”[[In-content Ad]]
A provision of the Ohio Public Records Act provides that if a city or other political subdivision of the state destroys or otherwise disposes of public records in a manner that is not authorized under the city’s official records retention policy, or without authorization from the Ohio Historical Society (OHS), any person who is “aggrieved” by the improper destruction of those records may file suit and obtain a $1,000 civil forfeiture (cash award) from the political subdivision for each record that was improperly disposed. In this case, the Supreme Court was asked whether a person requesting public records that have been improperly destroyed is automatically “aggrieved” and therefore eligible to recover a civil forfeiture simply because the requested records were not available, or if a person seeking the records must show that he or she suffered some actual harm or prejudice as a result of the destruction of the records.
In 2007, Timothy Rhodes sent public records requests to the city of New Philadelphia and several other northeast Ohio communities asking for access to reel-to-reel audio tapes the cities’ police departments may have used to document the daily radio calls made to and from their police dispatchers between 1975 and 1995. All of the communities responded that they had long since ceased using that technology and had disposed of the tapes and tape machines, and therefore were unable to provide the requested records. All of the jurisdictions except New Philadelphia also documented that their destruction of tapes had been accomplished pursuant to their official records retention policies and with the consent of the OHS. Upon further inquiry, Rhodes determined that New Philadelphia had never adopted or filed a city records retention schedule/disposal policy with the OHS, and had not obtained the society’s authorization before erasing and ultimately disposing of the reel-to-reel tapes it had used to document dispatcher calls between March 1989 and December 1995.
After obtaining that information, Rhodes filed suit against New Philadelphia under R.C. 149.351(B)(2), alleging that the city’s disposal of its dispatcher tapes had not been accomplished in compliance with the Public Records Act. Based on the fact that the New Philadelphia police had reused the same tapes over a period of more than six years, erasing the contents of two tapes each day and reusing them to record the new day’s calls, Rhodes asserted that the city had improperly destroyed 730 public records each year for six years and nine months, totaling 4,968 violations. Based on that calculation, Rhodes sought a $1,000 civil forfeiture for each violation, resulting in a total claim of $4,968,000.
Both the city and Rhodes filed motions for summary judgment. The trial court denied both sides’ motions, finding that there was a material question of fact regarding whether Rhodes was “aggrieved” by the city’s failure to provide the requested tapes. When the case was tried to a jury, evidence was presented showing that Rhodes had no interest in actually receiving or reviewing the missing tapes, but had requested them for the sole purpose of collecting forfeitures from the city based on their improper destruction. The jury entered a verdict in favor of the city, finding that Rhodes was not “aggrieved” by the destruction of the tapes.
Rhodes appealed. On review, the Fifth District Court of Appeals vacated the trial court’s judgment and remanded the case with a directive to issue summary judgment in favor of Rhodes on the question of liability (i.e., to find that Rhodes qualified as an aggrieved person eligible to seek forfeitures for the missing records), and to conduct a new trial limited to the issue of how many “violations” of the Public Records Act had been committed by the city’s erasures of its dispatcher tapes. In its opinion, the appeals court specifically held that the trial court should have granted Rhodes’ pretrial motion for summary judgment because the only showing a plaintiff must make to qualify as an aggrieved person under R.C. 149.351(B)(2) is that he or she had been denied access to requested public records because those records had been unlawfully destroyed.
New Philadelphia sought and was granted Supreme Court review of the Fifth District’s ruling. Oral argument took place on April 20.
In an opinion authored by Justice Yvette McGee Brown, the Supreme Court reversed the decision of the Fifth District Court of Appeals finding that Rhodes was not aggrieved by New Philadelphia’s improper destruction of the recordings on its reel-to-reel tapes.
“If a public office is able to establish that the requester did not actually want the records and instead wanted the request to be denied, then a finder of fact may conclude that the requester was not aggrieved by the destruction,” Justice McGee Brown wrote. “New Philadelphia was able to establish through competent credible evidence that Rhodes’s objective was not to obtain the records he requested but to receive notice that the records had been destroyed in violation of R.C. 149.351(A) so that he could seek forfeiture awards.”
In her analysis, Justice McGee Brown distinguished between the terms “aggrieved” and “any person” seeking public records.
“We cannot ignore the General Assembly’s use of the term ‘aggrieved,’ and we conclude that the General Assembly did not intend to impose a forfeiture when it can be proved that the requester’s legal rights were not infringed, because the requester’s only intent was to prove the nonexistence of the records,” she wrote.
“The requirement of aggrievement indicates that a forfeiture is not available to ‘any person’ who has made a request and discovered that the records were not available due to the public office’s violation of R.C. 149.351; it is available only to a person who made a request with the goal being to access the public records,” she continued. “If the goal is to seek a forfeiture, then the requester is not aggrieved. The presumption, however, is that a request for public records is made in order to access the records.”
To illustrate the distinction, Justice McGee Brown cited two previous Supreme Court cases: Kish v. Akron and State ex rel. Morgan v. New Lexington.
“Like the relator in Morgan, Rhodes was under no obligation to explain his reason for wanting the public records in order for his request to be valid,” she wrote. “What distinguishes Rhodes’s case from cases such as Morgan and Kish is the simple fact that Rhodes did not actually want the records.
“When a party requests access to public records with the specific desire for access to be denied, it cannot be said that the party is using the request in order to access public records; he is only feigning that intent,” she continued. “Here, Rhodes feigned his intent to access public records when his actual intent was to seek forfeiture awards. Consequently, the jury correctly concluded that Rhodes was not aggrieved by the destruction of the records he had requested. The trial court’s denial of Rhodes’s motion for summary judgment on the issue of aggrievement and the entry of the jury’s verdict in favor of New Philadelphia therefore did not contain reversible error.”[[In-content Ad]]