Provision provides Incentive to Shred Controversial Public Records
(Posted by Trent A. Dougherty, Director of Legal Affairs)
For decades the Public Records Act in Ohio has held governmental officials accountable by making records of state and local government actions fully open and accessible. To put necessary teeth in the Public Records Act, the Revised Code Section 149.351 not only bans the destruction of public records (except in accordance with duly adopted retention schedules), but provides for civil penalties, citizen enforcement, and recovery of attorneys’ fees. The existing law has served as an effective deterrent against destruction of these records through the risk of significant civil penalties. The cases brought under this law generate necessary public exposure while allowing aggrieved citizens to recover their fees along with sufficient penalties to cover their personal expenses and the actual costs of suit.
Yet, without a single committee hearing, tucked inside of the voluminous Senate Finance Committee Omnibus Amendment to the state budget, is an amendment that can spell the death of public records as we know it.
The budget provision, which mirrors similar provisions in SB 178 (Seitz, Wilson), will:
- Provide a cap of $10,000 on all judgments against illegal public records destruction;
- Put a cap on attorneys fees;
- Tighten standing to bring suit under the law;
- Put a four years statute of limitations from the date of illegal destruction;
One of the biggest deterrents to governmental destruction of controversial public records, and one of the most important components of governmental transparency, is enforceable civil penalties against disreputable officials that illegally destroy public records. Those civil penalties would never be sought if aggrieved individuals performing this public service did not receive their reasonable attorneys’ fees.
Under this new provision, local governments now have a statutory incentive to burn, shred, and desecrate records, and merely have to pay a $10,000 penalty. Yet, even that penalty is speculative considering if and whether there is someone who is willing (or can afford) to enforce such a breach of the public trust in court.
The Senate amendments are overkill — they effectively repeal the law by making sure no one will enforce it.
The justification for such a provision has been that there is a cottage industry of nefarious attorneys seeking to bankrupt small towns across Ohio using the Public Records Act. There is a single case, currently in front of the Ohio Supreme Court, where a multimillion dollar verdict was handed down from lower courts.
On Friday, the Ohio Environmental Council, The Ohio Newspaper Association, the Ohio Association for Justice, and the Ohio Employment Lawyers Association delivered a joint letter urging the Ohio General Assembly to delete this provision from the budget bill. The Groups object to the proposed changes to existing Section 149.351 of the Revised Code for the following reasons:
1) The justification for rewriting the law is based on misleading information;
2) The existing law is working as intended: to help enable the public to hold rogue government officials accountable for misfeasance, malfeasance, and nonfeasance;
3) The cap placed on civil penalties and attorneys’ fees will preclude all but a few well-funded plaintiffs from pursuing public records cases;
4) Huge civil penalties are rare.
The letter explains how unnecessary such an over reach actually is: “In the 26 years this statute has been the law of Ohio, the Ohio Supreme Court has only once allowed a significantly large civil penalty and that was in a case involving the intentional destruction of overtime records which prevented city employees from proving how much unpaid overtime they were owed. Currently, despite the claims of those who advocated the budget bill changes to this records protection law, there are no multimillion dollar awards which have survived appellate scrutiny.”
The fears are unwarranted, the reasoning is unjustified, the substance is unfair, and the process is undemocratic. If a change is going to be made to drastically reduce the effectiveness of the Public Records Act, then there should be a full and public debate. If the upcoming ruling of the Ohio Supreme Court reveals defects or loopholes in this statute, they can be readily corrected, through a complete legislative process.
Simply, dismantling the Sunshine Laws should at least be done in the light of day, not in the darkness of a budget amendment; and not provide a clear enticement to destroy controversial public records.