State ex rel. Toledo Blade Company v. Seneca County Board of Commissioners, 2008 WL 5157733 (Ohio Dec. 9, 2008).
Take Away: Entities subject to public records requests should consider the defensibility of any retention/destruction plan currently in place and monitor compliance. In Ohio, an original writ of mandamus is a means of compelling compliance with the Public Records Act.
This case involved a public records request by the Toledo Blade for email relevant to the decision of the Seneca County Board of Commissioners (the “Board”) to demolish the County courthouse. When it became apparent that the Board would not be supplying all the requested email because much of it had been earlier deleted, the Blade brought an original writ of mandamus to compel the Board to forensically recover the deleted (but not destroyed) email. As noted by the Supreme Court, “[m]andamus is the appropriate remedy to compel compliance with R.C. 149.43, Ohio’s Public Record Act.” ¶ 17.
The unique issue taken up by the Court was to determine what a public office’s obligations are under R.C. 149.43 if e-mails that constitute public records are deleted in violation of a records-retention policy. ¶ 22. The Court was careful to emphasize that in cases in which public records, including e-mails, are properly disposed of in accordance with a duly adopted records-retention policy, there is no entitlement to these records under the Public Records Act. ¶ 23. Provided, of course, that the policy itself doesn’t violate the Act.
In this case, the County’s schedule for records retention and disposition, specified that e-mail that has “significant administrative, fiscal, legal, or historic value” must be retained, and e-mail that has “no significant value” can be erased. Under the Board’s policy, individual computer users were allowed to decide whether their own e-mail should be deleted under these guidelines. Such individual discretion is not unlimited. The Court rejected an invitation to construe Ohio’s Public Records Act in a manner “that vests individual government employees with unreviewable authority to delete work-related emails” noting that such an interpretation “would authorize the unfettered destruction of public records.” ¶ 31.
The Blade produced sufficient evidence that the e-mails had significant value, had been deleted in violation of the retention policy, and still existed on the Board’s computers (i.e., the e-mails had been deleted but not destroyed). The Board failed to rebut any of these points. The Court concluded that the e-mails, which were public records, had been unlawfully deleted in violation of the County’s records retention policy and ordered the Board to recover them.
The Court then considered the issue of which party should pay for the forensic retrieval of the deleted email. The Court recognized that “because the cost of retrieving deleted electronic data can be high, the costs of such retrieval may be shifted to the party seeking discovery [in] some circumstances.” Nonetheless, the Court ordered the Board to pay for the recovery efforts. In doing so, the Court relied in large part upon the public policy behind Ohio’s public records statute, including that requesters of public records are not required to pay a fee to inspect public records and noncompliance with the statute is not justified by a claim of exorbitant expense. Further, the Court cited the Board’s failure to maintain the e-mails in accordance with its own retention policy – which is a relevant factor in a cost-shifting analysis in non-public records cases also.