Introduction
Recent actions by the Ohio Supreme Court and the Ohio General Assembly significantly change Ohio law concerning the unauthorized destruction of records (ORC 149.351).House Bill 153 (the 129th General Assembly’s budget bill) limits public office liability for the unlawful destruction of records by restricting who can bring these lawsuits and the total amount of damages a public office may face.Similarly, in Rhodes v. New Philadelphia,1 the Ohio Supreme Court also restricted the persons entitled to recover against a public office for the unauthorized destruction of records to only those truly “aggrieved” by the destruction of a record.
Changes to ORC 149.351 in HB 153
The relevant portion of House Bill 153 (HB 153), which becomes effective on September 29th, 2011,2 makes several major changes to ORC 149.351, the statutory provision detailing the remedies available when a public office destroys, damages, or otherwise disposes of records unlawfully.
First, when a civil forfeiture action is filed, HB 153 limits a public office’s liability for the unlawful destruction of records to a maximum possible civil forfeiture of $10,000 in any one forfeiture action, no matter how many violations occurred.3 The new language also limits the award of reasonable attorney’s fees to an amount that cannot exceed the total amount of the civil forfeiture.4
Second, HB 153 provides a defense to civil forfeiture actions if the public office can show by “clear and convincing evidence” that the underlying records request was “contrived as a pretext to create potential liability.”5 In other words, if a person makes a public records request solely in an attempt to collect a civil forfeiture award, they will not be considered an “aggrieved” party and will not likely prevail.6
Third, HB 153 states that once a person recovers a civil forfeiture for the unauthorized destruction of a record no one else can recover for the destruction of that same record.7
Finally, a specific statute of limitations was added by HB 153.Now actions brought for the unauthorized destruction of records under ORC 149.351(B)(2) must be brought within five years after the alleged violation.8
Rhodes v. New Philadelphia
At the same time the General Assembly was debating the budget bill, the Ohio Supreme Court was considering an appeal in the case of Rhodes v. New Philadelphia (cite).In Rhodes, the requester asked for the daily reel-to-reel tape recordings for the years 1975 through 1995 made on antiquated equipment by the city’s police dispatch department.9 When the New Philadelphia police chief explained that the department had disposed of the recordings without having records retention schedules that permitted such destruction, the requester filed a complaint for civil forfeiture under ORC 149.351.10
The question before the Ohio Supreme Court was how to define an “aggrieved” person for the purposes of recovering a civil forfeiture for the destruction of records.The Court found that a person is not “aggrieved” by the destruction of a record when the person’s objective in requesting the record is not actually to obtain the record, but to seek a forfeiture award for the wrongful destruction of the record.11 Because the requester was only requesting records so he could pursue a forfeiture award, the City of New Philadelphia was not liable for, and was not assessed civil penalties for, destroying the records without complying with records retention laws.The Court distinguished this case from Kish v. Akron (109 Ohio St.3d 162) and Morgan v. New Lexington (112 Ohio St.3d 33), in which it was clear that the requesters actually wanted the records for which they submitted public records requests.By contrast, Rhodes only requested records that he knew did not exist for the purpose of obtaining the forfeiture award.
1 Rhodes v. New Philadelphia, Slip Opinion No. 2011-Ohio-3279.
2 Effective date as determined by the Ohio Secretary of State.See, http://www.sos.state.oh.us/sos/upload/records/journal/acts_129.pdf
3 Am.Sub.H.B No. 153, Part I, 285-86.
4 Id.
5 Id.
6 Id.
7 Am.Sub.H.B No. 153, Part I, 285-86.
8 Id.
9 Rhodes, at ¶2.
10 Id. at ¶2-4.
11 Id. at ¶27-28.