The Ohio General Assembly and the Ohio Supreme Court recently took steps to prevent individuals from using Ohio's statute on illegal destruction of records for the sole purpose of seeking large monetary awards against public offices. The statute, Revised Code Section 149.351, provides that an aggrieved person is entitled to a $1,000 civil forfeiture for illegally destroyed public records. In order for a public office to legally destroy a record, it must do so in accordance with a properly adopted records retention schedule or follow the procedures for one-time disposal of obsolete records. In an earlier case, Kish v. City of Akron (2006), 109 Ohio St. 3d. 162, 2006 Ohio 1244, 846 N.E. 2d 811, the Ohio Supreme Court ruled that the $1,000 civil forfeiture applies to each individual record that was illegally destroyed. The Court further clarified that: "'Record,' as used in R.C. 149.351 and defined in R.C. 149.011, may be a single document within a larger file of documents as well as a compilation of documents . . . ." Id. at paragraph 1 of the syllabus.

Based on this statutory framework, some public offices began receiving public records requests that were particularly troubling because the requestor was not actually interested in the records themselves. Instead, the purpose of this type of request was simply to discover large amounts of records that the office was required to keep, but that the office was unable to produce. The object of such a request is to obtain a large judgment against the office. Rhodes v. City of New Philadelphia, Slip Op. No. 2011 Ohio 3279, is just such a case.

In July 2007, Mr. Rhodes mailed a public records request to the City of New Philadelphia for reel-to-reel tape recordings made by the police dispatch department. Id. at ¶ 2. Specifically, he requested a 24 hour-tape for each day of the year for the period stretching from 1975 through 1995. He also submitted similar requests to the Tuscarawas County Sherriff's office, and to Uhrichsville, Gates Mills, Dover, Wooster, Solon, and Medina. None of the public offices had retained the recorders or the reel-to-reel tapes except for Medina, which had kept a few of the tapes. Mr. Rhodes went to Medina to see the tapes, but he never requested copies of them or a means to listen to them. Except for New Philadelphia, the public offices had records retention schedules that allowed them to erase the tapes after 30 days. Id. at ¶ 2-4. Because their schedules allowed for the destruction of the tapes, these public offices were not liable for civil forfeitures.

New Philadelphia, however, had no such provision, and Rhodes sued the City under R.C. 149.351(B), claiming a $1,000 civil forfeiture for each destroyed tape. In particular, Mr. Rhodes claimed he was automatically an aggrieved person under the statute in that he had made a request for the tapes and the City could not produce them because the tapes had been illegally destroyed. In a 7-0 decision, though, the Supreme Court rejected this approach, holding "that 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." Rhodes Slip Op. at ¶ 1.

In analyzing the case, the Court acknowledged that the presumption is that a request for public records is made in order to access the requested records. Id. at ¶ 24. Mr. Rhodes' request, however, was a completely different matter:

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. 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.

Id. at ¶ 26-27. Because Rhodes was not “aggrieved” by the destruction of the reel-to-reel tapes, he was not entitled to the statutory civil forfeiture.

The Court's decision comports with recent amendments made to the statute by the General Assembly as part of H.B. 153, the FY 2012-2103 budget bill. Specifically, the statute has been amended to provide that "A person is not aggrieved . . . if clear and convincing evidence shows that the request for a record was contrived as a pretext to create potential liability under this section." R.C. 149.351(C)(1). It is important to note that this showing must be made by clear and convincing evidence. While this is a difficult standard to meet, the statute also provides that by filing the civil action, the requestor waives his/her right to decline to identify the purpose of the request. Id. This allows the public office the ability to begin to build its case that the request was only made with the goal of seeking the forfeiture.

The newly amended statute also builds in other protections for public offices. First, the statute now caps the civil forfeiture at $10,000 and limits an award of attorney’s fees for an action seeking a civil forfeiture to the amount of the forfeiture. Id. at (C)(2). Second, if the public office shows by clear and convincing evidence that the request was simply a pretext to create potential liability, the public office may be awarded attorney's fees. Id. at (B)(2). Third, the statute now makes it clear that once an aggrieved person obtains a civil forfeiture for a record, other aggrieved persons cannot also obtain a civil forfeiture for the same record. Id. at (D). Finally, R.C. 149.351(E) imposes a five-year statute of limitations for actions based on the illegal destruction of records or the threat of such a violation.

Just as it was before these developments, the safest way to avoid being pulled into a controversy over the destruction of records is for a public office to monitor its records retention schedules, to make sure the schedules are up to date and reflect the office's current practices, and to destroy records only within the purview of such legally adopted record retention schedules. If, on the other hand, a public office finds itself on the receiving end of a public records request that is meant only to create liability under R.C. 149.351, the law now provides clear protections that in the past were uncertain at best.