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City should pay six-figure fine for destruction of records

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NEWS MEDIA UPDATE   ·   OHIO   ·   Freedom of Information   ·   March 24, 2006

City should pay six-figure fine for destruction of records

  • In a 4-3 decision, the state Supreme Court ruled in an advisory opinion that the city of Akron should pay a $1,000 fine for each of hundreds of public records it destroyed, a sum believed to be the largest ever under Ohio’s open records law.

March 24, 2006  ·   The city of Akron could face an $860,000 fine for destroying hundreds of employee time sheets, each of which is considered a separate public record under state law, the Ohio Supreme Court ruled Monday.

The 4-3 ruling said each of 860 time sheets destroyed more than five years ago was an individual public record, and that the city should pay a $1,000 fine for the destruction of each one. The divided court rejected the city’s argument that the time sheets should be considered as a whole rather than individually.

The time sheets recorded time off owed two secretaries in lieu of overtime pay. After the city ended its practice of offering compensated time for overtime pay on an hour-by-hour basis, another employee destroyed the records, according to court documents. Elizabeth Kish and Victoria Elder then sued in federal court for their unpaid time off, alleging that the records were destroyed to damage their case.

Asked by the U.S. Court of Appeals in Cincinnati (6th Cir.) to clarify state law regarding the destruction of public records, the Ohio Supreme Court focused its advisory opinion on the definitions of “record” and “violation” under state open records law.

The majority supported a broad definition of “records,” ruling that “almost all documents memorializing the activities of a public office can satisfy the definition.” In finding that each time sheet had “independent meaning and function,” the court declared each one an individual public record.

The court then rejected the city’s argument that the definition of “violation” under the law should consider whether the documents were destroyed together or in hundreds of separate incidents. That logic, the majority said, is unworkable and “at worst, it is nonsensical.”

“It defies logic to believe that the General Assembly intended for more sophisticated participants in the unlawful destruction of public documents to escape the more serious penalties (a forfeiture linked to each document destroyed) simply by premeditating a wholesale destruction of hundreds or thousands of documents . . . while the hapless or inadvertent spoliator who destroys five documents at five different times would face five times the penalty,” Justice Maureen O’Connor wrote for the majority. Chief Justice Thomas Moyer and Justices Alice Robie Resnick and Paul Pfeifer joined her.

In dissent, Justice Judith Ann Lanzinger, joined by Justices Evelyn Lundberg Stratton and Terrence O’Donnell, cautioned that the majority ruling could mean municipalities will face “potentially crippling penalties for even inadvertent violations of public records law.”

But the consequences of fines are for the legislature, not the court, to consider, O’Connor wrote.

Cleveland attorney Jennifer Corso, who represents Kish and Elder, said that while critics of the decision might call the fine unreasonable, the city had more than one chance to compensate the women for the unpaid comp time they sought — equivalent to less than $1,000 each in pay.

“This is a problem that the city created for themselves,” Corso said. “I don’t think there should be a pity factor going on there.”

Her clients’ case now returns to the federal appeals court in Cincinnati, which is reviewing a 2001 federal district court decision in favor of the employees. The $860,000 fine was awarded when the case was in the lower court. It is up to the appeals court to decide whether the fine should be levied and other issues in the case, Corso said.

The $860,000 fine is believed to be the highest ever awarded under Ohio’s open records law.

“I’ve been at this for 15 years, and this is clearly the highest amount that I’ve seen, by far,” said Frank Deaner, executive director of the Ohio Newspaper Association and president of the Ohio Coalition for Open Government. The organizations filed friend-of-the-court briefs in the case.

Corso and Deaner said the decision is good news for public records preservation in Ohio.

“What this does is it sends a very clear message to public entities in Ohio that says you may not destroy public records,” Corso said. “Access is meaningless if public entities are allowed to legally destroy records.”

Akron attorney Bruce Christensen Jr. did not return a call for comment.

(Kish et al. v. City of Akron; Requester’s counsel: Jennifer A. Corso, Wegman Hessler & Vanderburg, Cleveland, Ohio)AB

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