January 11, 2012
Public Records Request

by Justice Paul E. Pfeifer

When Timothy Rhodes mailed a public-records request to the New Philadelphia police department in July 2007, it’s not likely anyone anticipated that the issue would end up coming before us – the Supreme Court of Ohio.

Rhodes requested reel-to-reel tape recordings made by the police dispatch department through the use of a now-antiquated “Dictaphone-Dictatape Logger” system. The tapes recorded all phone calls and radio dispatches in 24-hour increments, meaning there should’ve been one tape for every day of the year.  Rhodes requested access to every tape created from 1975 through 1995. But the department had disposed of the recordings.

Rhodes made similar requests to other towns and cities, but the reel-to-reel system had long since been replaced.  None of the public entities Rhodes contacted had the old tapes, except Medina, which had a few. He went to Medina to see what they looked like but didn’t request copies or listen to them.

The Ohio Public Records Act requires all public offices to make records available in response to a request from “any person.” Public offices are prohibited from destroying or disposing of their records, unless they do so under rules adopted by local records commissions and approved by the Ohio Historical Society and the state auditor.

In accordance with the law, each of the towns that Rhodes contacted had created record-retention schedules through records commissions and had obtained the necessary approval to erase their tapes after 30 days. The sole exception was New Philadelphia.

When he learned of this, Rhodes filed a complaint for civil forfeiture. He claimed that New Philadelphia had acted unlawfully when it destroyed the recordings without approval, that he was aggrieved by the city’s violations, and that he was entitled to a $1,000 forfeiture for each improperly destroyed tape.

Rhodes wasn’t just making this up. Part of the mechanism for enforcing the Public Records Act is a civil action for forfeiture. The law states that “any person who is aggrieved” by the destruction of a record may bring a civil action to recover a forfeiture of a thousand dollars for each violation.

At trial, Rhodes testified that he wanted the tapes because he planned to see how the police department handled dispatch calls. On cross-examination, he admitted that in one of his letters – to the city of Dover – he stated that he would like to request certain public records only if the city didn’t have an approved record-retention policy.

New Philadelphia argued that Rhodes wasn’t an aggrieved party because he didn’t actually want the records.  Rhodes countered that his reason for requesting the tapes was immaterial.

In the end, the jury entered a unanimous verdict in favor of New Philadelphia.  But the court of appeals reversed that finding, concluding that the trial court should have ruled – without a trial – that Rhodes was an aggrieved party.

After that, the case came before us. There was no question that New Philadelphia had destroyed the records without an approved record-retention policy in place and that the city denied Rhodes’s request as a result of the improper destruction. The sole issue was whether Rhodes was “aggrieved” by the destruction of the records.

As mentioned earlier, the law states that “any person aggrieved” by the destruction of public records may bring a civil action in the amount of one thousand dollars for each violation. For Rhodes to succeed in his civil action, he must be aggrieved by the improper destruction of those tapes.  But when the Ohio General Assembly passed the Public Records Law, it didn’t define what it meant by “aggrieved.”

In legal dictionaries, “aggrieved” is commonly defined as “having legal rights that are adversely affected.” The question then is, what are the legal rights conferred and protected by the Public Records Act?

The Act grants the “substantive right to inspect and copy public records.” The purpose of providing public access to government records “is to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed.”

Over the years, our court has consistently held that a public office is obligated to honor a records request by “any person” and that a person doesn’t have to explain his reasons for the request.

This duty that is imposed on public offices may sometimes result in wasted public funds because it obligates prompt reply to all requests, even the frivolous ones. But the legislature balanced the public offices’ interest in fiscal efficiency against the people’s right to monitor their government, and it chose to allow the risk of wasted funds.

But that same choice was not reflected in the section of the law regarding the enforcement mechanism of forfeiture, which allows a thousand dollars for each destroyed record. That section says that forfeiture is available only to a person who has been “aggrieved” by the public office’s violation.

That requirement indicates that a forfeiture is not available to “any person” who has made a request and discovered that the records weren’t available due to an improper destruction. Rather, forfeiture is available only to a person who has made a request with the goal of accessing the public records. But if the goal is to seek a forfeiture, then the requestor is not aggrieved.

In writing the majority opinion for this case, Justice Yvette McGee Brown said that the presumption “is that a request for public records is made in order to access the records.” But when someone requests access with the specific desire for access to be denied, it cannot be said that he is using the request to access public records; he’s only feigning that intent.

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.

Thus, because Rhodes wasn’t aggrieved by the improper destruction of the records, we reversed the judgment of the court of appeals by a seven-to-zero vote.

EDITOR'S NOTE: The case referred to is Rhodes v. New Philadelphia, 129 Ohio St.3d 304, 2011-Ohio-3279. Case No. 2010-0963. Decided July 7, 2011. Majority opinion written by Justice Yvette McGee Brown.