Archive for July, 2011

 Court’s decision could create yet another barrier to public records destruction lawsuits

(Posted by Troy Harter, OEC Summer Associate and Law Student at Capital University Law School)

On July 8, 2011, the Supreme Court of Ohio ruled on Rhodes v. New Philadelphia.  In a unanimous decision, the Court held that destruction of a public record in violation of Ohio Revised Code Section 149.351 gives rise to civil forfeiture only if the person requesting the public records was “aggrieved” by the destruction.  The Court held that a claimant is not “aggrieved” when the objective behind the public records request was not to receive the record, but to claim the forfeiture for the wrongful destruction as a means of financial gain.

The plaintiff/appellee in this case was Timothy Rhodes, a citizen of Ohio who sent requests for public records to several Ohio cities, villages, and public entities.  The defendant/appellant in the cast was the city of New Philadelphia, a recipient of one such request that was potentially subject to a large forfeiture because it had recycled a number of reel-to-reel tape records.

The single issue before the Court was the meaning of the term “aggrieved” as used in R.C. 149.351.  The specific question posed was whether a party is automatically aggrieved when a request for public records was denied due to destruction of the records, as was held by the Court of Appeals of Ohio, Fifth District.

Rhodes put forth the argument that a person is “aggrieved” as soon as he or she makes a request for public records and is denied because of the unlawful destruction of those records.  Rhodes stressed that the motive behind such a request was not relevant, and if the Legislature had intended to qualify what constituted being “aggrieved,” it would have done so in the language of R.C. 149.351.

New Philadelphia’s position was that a person is not automatically “aggrieved” after a denial of a public records request.  Instead, New Philadelphia urged that the Court must give effect to the usual, normal or customary meaning of all the words of the statute, and, per Black’s Law Dictionary, an “aggrieved” person is one who has had a legal right infringed or adversely affected.  According to New Philadelphia, the legal right that must be infringed in cases such as this was the right to review public records in order to scrutinize and evaluate government activity.  Because the statutory language granted the power of recovery to those who were “aggrieved” and not just “any person,” New Philadelphia argued that the Legislature intended to limit recovery to those who actually wanted to review the public record but could not do so because of its destruction.  New Philadelphia also stressed that allowing automatic liability for denial of a request for public records would lead to limitless liability for public entities and waves of suits from opportunistic claimants seeking financial gain.  Such a result would be absurd and unreasonable, and was not the intent of the Legislature when enacting the statute.

The Supreme Court of Ohio unanimously agreed with New Philadelphia’s assertion that a claimant is not automatically “aggrieved” when a request for public records is denied because of a wrongful destruction of the records.  The Court accepted New Philadelphia’s definition of “aggrieved person” as one who has had a legal right infringed or adversely affected.  The Court emphasized the language of different sections of the Ohio Revised Code, pointing out that Section 149.43 states that “any person” has the right to access public records without any need to provide an explanation for their request.  In contrast, Section 149.351 limits the enforcement mechanism of forfeiture to only an “aggrieved person.”  This difference in language was crucial in the Court’s holding.  The Court reasoned that the right that must be infringed in order to give rise to forfeiture is the right to review such records in order to evaluate or scrutinize the government.  The Court did not believe that the General Assembly would have included the word “aggrieved” in the language if it intended to impose forfeiture when the requesting party had no interest in actually viewing such records.  A person whose only interest was proving the non-existence of public records and receiving financial gain has not had any right infringed, according to the Court.

The Court stated that there is a presumption that claimants requesting to review public records actually wish to review those records, but defendant public entities can defend themselves from liability by demonstrating through competent, credible evidence that the claimant did not actually desire to view the records.  In this case, New Philadelphia’s evidence was enough to convince the unanimous trial jury that Rhodes did not desire to review the public records and was, therefore, not aggrieved.

The Court’s holding in Rhodes provides guidance as to who qualifies as an “aggrieved person” for the purposes of the forfeiture provisions of the Public Records Act.  This guidance creates a substantial barrier to those claimants who bring suits under the Public Records Act only for financial gain in the form of forfeiture.  However, the ruling comes just days after the adoption of an amendment to R.C. 149.351 that unnecessarily constricts any claimant’s (legitimate or not) ability to bring an action.  While the amendment expressly states that a person is not “aggrieved” if clear and convincing evidence shows that he or she made a request for a record solely as a pretext to create potential liability, it also places a cap of $10,000 on the forfeiture award and a cap on attorneys’ fees not to exceed the forfeiture award.  In addition, the amendment blocks subsequent claimants from bringing an action under the section if forfeiture has already been awarded to a previous claimant.  Finally, the amendment creates a 5-year statute of limitations for bringing a claim under the section, which begins to run the day after the section was violated or threatened to be violated.

While these amendments help protect public entities from attack by opportunistic claimants, they also create nearly insurmountable obstacles for those claimants with a legitimate interest in reviewing public records that were unlawfully destroyed.  The $10,000 recovery cap is preventative because the costs of records destruction cases typically exceed $10,000 before attorney fees are even considered.  Very few claimants will bring a case where they will lose money no matter what the outcome.  The cap also could encourage the unlawful destruction of public records in order to cover up improper behavior because public entities will no longer have to fear large penalties, and may not have to fear any suits at all.  After all, a $10,000 fine is an easy punishment when compared to the penalties that could be exercised if public records revealed unlawful behavior.  In addition, the one-time only forfeiture prevents claimants with worthy complaints from bringing an action at all.  Finally, the 5 year statute of limitations creates an unnecessary barrier to legitimate claimants who did not realize they had a claim until after the running of the limitations period.

The amendment to R.C. 149.351 was a legislative response to fears and assertions that public entities were being financially bled by waves of never-ending multi-million dollar claims.  The truth of the matter is that only one large civil forfeiture has withstood appellate court scrutiny.  The legislature took action without waiting for the Supreme Court of Ohio to rule on Rhodes v. New Philadelphia.  With the holding of Rhodes, the concerns of public entities and municipalities have been addressed, and the attempts of opportunistic claimants to use R.C. 149.351 have largely been defeated by judicial action.  Simply put, the amendment to R.C. 149.351 was unnecessary and the motivation behind it revealed as hollow in light of the Supreme Court’s ruling in Rhodes v. New Philadelphia.  The Supreme Court’s ruling shows that there was nothing wrong with R.C. 149.351 as written, and the legislature reached too far in its attempt to correct a non-existent problem.

The amendment’s passage through the budget bill also may raise a constitutional issue.  Article II Section 15D of the Ohio Constitution states that no bill is allowed to contain more than one subject.  This rule’s purpose is to prevent the consolidation of several matters into a single bill for the purpose of obtaining approval for proposals that would never obtain a majority if voted on separately.  The one-subject rule is violated when there is a lack of common purpose or relationship between provisions of a bill and no discernible practical, rational, or legitimate reasons for their combination.  A common situation in which courts consider the rule to have been violated occurs when, as is the case here, the challenged provision is a very small part of bill that is hundreds of pages long and full of provisions completely unrelated to the one being challenged.  Such hidden provisions are riders that share little common purpose with other provisions of the bill.  Many would argue that a provision setting out the right of aggrieved citizens to enforce the Ohio Public Records Act has little to do with the other hundreds of provisions of a bill that is summarized as making operating appropriations for the biennium and authorizing reforms for effective operation of state and local government.

While the decision in Rhodes has provided a standard by which courts can determine just who an “aggrieved person” is, it also leaves concerns that will have to be decided in the future.  Other courts may have different interpretations of whether a requesting party actually wants the records, and the standard may prove to be amorphous and hard to define.  Another concern is that those with knowledge of a record’s destruction may be barred from bringing an action, even if their purpose is legitimate.  After all, according to the rationale of the Rhodes ruling, a person cannot actually want records that are known to be destroyed.  Also, the Court in Rhodes focuses its holding on the facts of the case, in which a request has been made for public records that are subject to a public records request.  However, numerous types of records (including many important government records) are not public records subject to a public records request.  Will such records also be protected from unlawful destruction or can government officials destroy them with no threat of a penalty for their actions?

The above-mentioned concerns go beyond the facts of the Rhodes case, and they will likely be considered and clarified by the courts in the future.  As far as the facts of this and similar cases are concerned, the decision in Rhodes has provided a significant hurdle for opportunistic claimants seeking to use the Ohio Public Records Act for financial gain.  In doing so, the Supreme Court of Ohio addressed a concern of many public entities, but not before the Ohio Legislature passed a sweeping and unnecessary new law to deal with the issue.

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Partisan blustering shines light on need for accountability reform in Ohio
(Posted by Trent A. Dougherty, Director of Legal Affairs, Ohio Environmental Council)

In a press release today, State Reps. Ted Celeste (D-Grandview Heights), Jay P. Goyal (D-Mansfield) and Matt Lundy (D-Elyria) criticized Republicans for moving Ohio away from open, accountable and transparent state government.

The lawmakers pointed out a number of examples of Republicans attempting to hide their actions behind a vault of secrecy, including putting major new policy directives into the state budget without any public hearings, stonewalling virtually all open records requests, exempting JobsOhio from public records and allowing lobbyists to work directly with the non-partisan Legislative Services Commission to write bill language.

While the tenor of the legislators’ criticism was highly partisan, to say the least, the underlying message is an important one — Government transparency is critical to a fully functioning democracy, and Ohio is in desperate need of real policy change.  No matter the party or faction leading the legislature, the process needs to be conducted properly, ethically, transparently.

The three legislators, to that end, have or are planning to introduce three bills:

  • Rep. Lundy is the sponsor of the ‘Taxpayer’s Right to Know Act’ (HB 113) which requires that all records from the performance or assistance of a public-private partnership with state functions are public records, and that such entities must conduct official business in open meetings.
  • Reps. Celeste and Goyal have introduced legislation to limit special interest groups’ access to the bill-writing process. House Bill 294 – The Commonsense Transparency Bill – prohibits outside parties and individuals from meeting with the Legislative Services Commission (LSC) without a member of the General Assembly or their staff present. LSC is the non-partisan agency that assists the legislature in writing the specific language of bills. The Commonsense Transparency Bill also specifies any form of written, oral, or electronic communication as a meeting that must include either a member or their staff.
  • Reps. Goyal and Lundy are planning to introduce legislation soon to roll back Republican attempts to make it easier for officials to stonewall public records requests.

While I work for a “special interest” organization (although surely not the nefarious kind suggested in the press release, I hope) and I do not subscribe wholly to the partisan and political rhetoric, I applaud and support the legislation proposed by Reps Goyal, Lundy, and Celeste.  The collective goal of these proposed bills is to provide transparency in the legislative process and full accountability of our elected leaders.

However, even this is not enough.  I must also offer my own recommendations for legislation that go even farther to providing the necessary government accountability and transparency Ohio needs. I call for a larger Statehouse Accountability and Public Empowerment Act that would provide for:

  • Transparency and Accountability through transcription of legislative committee hearings, including testimony, questions from legislators, answers, and commentary; as well as transcription of legislative floor sessions and debates. Further we will seek Transparency and Accountability through advocating for the codification of legislative intent to provide not only better judicial interpretation of laws, but most importantly, will be a transparent way of keeping legislators accountable for why they vote for or against a law.
  • Transparency and Accountability through Increased use of technology (such as SKYPE and Closed Circuit television) to allow citizens to view and participate in legislative committee hearings without necessarily traveling across the state.  There is precedent already for SKYPE being used to allow a witness from across the country testify on a bill in Committee during the anti-abortion bills this spring.  Using this precedent, the General Assembly should develop a mechanism in both the House and Senate to permit citizen witnesses to contact the committee chair and request to testify on a piece of legislation via SKYPE at a specified time during the committee proceeding.  Further, as the Ohio General Assembly “televises” its floor sessions on the internet based “Ohio Channel”, similar technology could be used for all legislative proceedings to allow for the public to view committee hearings without traveling to Columbus.
  • Timely dissemination of legislative committee and floor session transcripts via readily available websites or otherwise easily accessible media.  While the hope would be for the state to disseminate these documents and notify/educate the public on legislative participation mechanism, OEC along with colleague groups will develop a public outreach and information dissemination campaign.
  • Truth in testimony, by requiring those who testify before committees to take an oath or otherwise affirm the truth of their testimony in face of perjury.

I urge legislators on both sides of the aisle to critically review our legislative process to ensure transparency and accountability.  Ohioans deserve to know what is going on in the hallowed halls of Capitol Square, and that policies are in place to provide public awareness of the work their elected officials do (or not do).  And those policies must have one goal in mind — keep legislators accountable for what they say, do, and for positions that they take that otherwise may go unnoticed.

Other recommendations for executive agency transparency and accountability (as well as recommendations to protect Ohio’s Air, Land, and Water) can be found in the Ohio Environmental Council’s 2011 Ohio Environmental-Conservation Legislative Briefing Book.



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The benefits of the Cross-State Air Pollution Rule far outweigh the costs of the rule by a 300 to 1 margin

(Posted by David Fox, University of Toledo Law Student and OELC Summer Associate)

Americans living in the eastern and central parts of the country will soon be able to breathe a little bit easier.  On July 6, 2011, the U.S. EPA finalized a new air pollution transport rule.  The Cross-State Air Pollution Rule (CSAPR) targets ground-level ozone and fine particulate matter pollution resulting from emissions from fossil-fuel-fired power plants in the eastern and Midwestern United States.  By targeting the industrial sector most responsible for the emissions of air pollutants that contribute to this pollution, this rule is a necessary and long overdue step towards meeting the Clean Air Act’s National Ambient Air Quality Standards (NAAQS).

Ohio and Pennsylvania are projected to be the states to most benefit from CSAPR.  Ohio is expected to see annual mortality decrease from 800 to 3,300, and see monetary benefits of $7 to $27 billion – Source USEPA

CSAPR replaces the EPA’s 2005 Clean Air Interstate Rule (CAIR), which was found to be defective in a December 2008 U.S. Court of Appeals decision.  CSAPR requires 27 states in the eastern half of the U.S. to significantly improve air quality by reducing power plant emissions that cross state lines and contribute to ground-level ozone and fine particle pollution in other states.  A supplemental proposal, if finalized, would bring the total number of covered states to 28.    CSAPR would cover a total of 3,642 electric generating units (EGUs) at 1,081 coal-, gas-, and oil-fired generating facilities across these28 states.

Many counties within the states covered by CSAPR are still in nonattainment with the 1997 NAAQS for ozone and the 1997 and 2006 PM2.5 NAAQS.  In Ohio, twenty-one counties remain in nonattainment with one or more of those NAAQS.  This includes some of the most populous counties in the state, such as Cuyahoga, Franklin, Hamilton, Montgomery, and Summit.  In some of these counties, attainment with the NAAQS cannot be met unless upwind sources of air pollutants are regulated.  This rule is designed to address this problem by reducing emissions of SO2 and NOx in the covered states.  These air pollutants contribute to particulate and ozone pollution and are capable of being transported across great distances to downwind sites.

In promulgating this rule, the EPA adopted a state-specific framework to identify the emissions reductions that would need to occur in order to avoid violating the Clean Air Act’s prohibition on emissions that significantly contribute to downwind nonattainment.  The EPA developed an emissions budget for each state, which represents the quantity of emissions that would remain after elimination of this significant contribution to downwind nonattainment.  Because of the need to promptly respond to the 2008 judicial remand, the EPA is establishing Federal Implementation Plans (FIPs) for all of the covered states.  These FIPs will allocate emissions allowances to each EGU in a covered state.  The EPA’s allocation of these allowances is based on historical heat-input data for each of the covered EGUs.

Emission reductions under CSAPR will take effect quickly.  Beginning January 1, 2012, the first phase of compliance begins for SO2 and annual NOx reductions.  Ozone-season NOx reductions begin on May 1, 2012.  The second phase of SO2 reductions begins January 1, 2014.  According to the EPA, by 2014, CSAPR and other final state and EPA actions will reduce SO2 emissions from power plants by 73% and NOx emissions by 54% compared to 2005 levels.  The rule also establishes a process for determining the responsibility of upwind states’ to protect air quality downwind.  EPA can apply this process to determine if interstate pollution transport contributes to exceedances of the NAAQS and, if so, can impose additional emission reductions on the upwind states.

The benefits of the new rule far outweigh the costs of compliance.  The EPA estimates that $800 million will be spent on this rule in 2014, on top of the roughly $1.6 billion spent on capital investments each year as a result of CAIR.  However, the rule is expected to improve air quality for more than 240 million Americans, resulting in up to $280 billion in annual benefits (a 300:1 return on investment!), including the value of avoiding up to 34,000 premature deaths each year.  The rule is also expected to prevent 19,000 cases of acute bronchitis, 15,000 nonfatal heart attacks, 19,000 hospital and emergency room visits, 1.8 million missed-work or school days, 400,000 cases of aggravated asthma, and 420,000 cases of upper and lower respiratory symptoms each year.  There are also a number of unquantifiable benefits that will result from this rule, including enhanced crop and commercial forest yields, improvements in visibility, reductions in nitrogen and acid deposition, and health and environmental benefits resulting from associated reductions in mercury emissions.

Given these expected benefits, it is evident that CSAPR should be welcomed in the affected states.  While energy prices may rise slightly, any such rises are expected to be within the range associated with typical price variability.  Moreover, the health and environmental benefits are well worth the minimal costs.  This is particularly true in Ohio where the number of counties in nonattainment with the 1997 NAAQS for ozone and/or the 1997 or 2006 PM2.5 NAAQS is expected to drop from twenty-one to zero by 2014.

Benefits for Ohio

1. The rule will reduce Ohio’s contribution to neighboring states’ dirty air.  According to USEPA, currently, Ohio sources significantly contribute to:

  • fine particle pollution in the following 15 states and the District of Columbia:Maryland, New Jersey, Connecticut, Pennsylvania, Indiana, Delaware, New York, Michigan, West Virginia, Georgia, Kentucky, Alabama, North Carolina, Tennessee & Illinois
  • ground-level ozone pollution in the following 9 states and the District of Columbia:Maryland, New Jersey, Connecticut, Pennsylvania, Virginia, Rhode Island, Delaware, New York & Michigan

2. The rule will also make Ohio’s air cleaner, and save Ohioan’s lives and quality of life.

  • Ohio’s fine particle air quality will improve because of reductions of SO2 and NOx in:Alabama, Georgia, Illinois, Indiana, Kentucky, Michigan, Pennsylvania, Tennessee & West Virginia
  • Ohio’s ground-level ozone air quality will improve because of reductions of NOx in:Illinois, Indiana, Kentucky, Michigan & Missouri

3. The number of counties in nonattainment with the 1997 NAAQS for ozone and/or the 1997 or 2006 PM2.5 NAAQS is expected to drop from twenty-one to zero by 2014.

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