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.