Tuesday, May 24, 2011

Ohio public records controversy

Apologies for the virtually non-existent posting during the past few weeks. I've spent three of the past four weeks attending to family matters, and I've simply had to put this blog and a bunch of other things on the back burner.

At the moment, I'm in Ohio, which is the site of a fascinating court case centering upon management of and access to public records. Ohio's Public Records Law currently allows citizens to receive civil forfeitures from local governments that have improperly destroyed requested records, and late last month the Ohio Supreme Court heard oral arguments in a case involving Timothy Rhodes, who originally sought approximately $5 million in damages from the city of New Philadelphia, which destroyed audio recordings of roughly 20 years of 911 calls.

Rhodes initially submitted identical requests to several Ohio communities, all of which had destroyed their recordings. However, New Philadelphia was the only one that did not have an Ohio Historical Society-approved records schedule that gave it the legal right to destroy the recordings after they reached the end of their retention period.

New Philadelphia contends that Rhodes' multiple requests prove that he had no interest in the content of the records themselves and was seeking to exploit the Public Records Law for personal gain. Rhodes asserts that even though he did have a legitimate need for the information in the records -- he was involved in a group that opposed tax increases earmarked for countywide 911 services -- the Ohio Public Records Act states very plainly that records requesters do not need to explain why they want to see records or what they plan to do with the information the records contain.

A lower-court jury determined that Rhodes was seeking financial gain and ruled in favor of the city, an appeals court overturned the verdict on the grounds that Rhodes' motives were irrelevant, and now the matter is in the hands of the Supreme Court. Local governments throughout the state are eagerly awaiting the Supreme Court's ruling. Several other small cities are currently being sued by requesters seeking millions of dollars in civil penalties, and many, many others fear that a ruling in Rhodes' favor will lead to a deluge of requests from citizens seeking to turn bad records management practices into a source of personal income.

For what it's worth, I'm really of two minds about this case. I understand the fear of officials in New Philadelphia -- which is about an hour southeast of my current location -- and other localities about the ramifications of a ruling in Rhodes' favor. I don't have ready access to any statistics regarding open records requests, but my own experience and that of many colleagues at all levels of government suggest that public records requests are increasing in both volume and complexity. My experience also suggests that the local governments that would be most negatively affected by such a ruling are those that are least able to bear the burden: northern cities battered by decades of deindustrialization and southern small towns that struggled even when the rest of the state prospered and now compete to attract minimum-wage jobs.

At the same time, I believe that governments should take their records management responsibilities seriously, that citizens have the right to access public records, and that they shouldn't have to explain why they wish to access records. It's been a while since I've been in contact with anyone at the Ohio Historical Society, which serves as Ohio's state archives and records management agency, but it seems to me that the financial penalties outlined in the Public Records Act is a powerful inducement to get one's records management house in order; of course, one might ask whether the financial penalties for non-compliance might best be directed to a dedicated records management improvement fund or otherwise amended to reduce profiteering.

I have no idea when the Ohio Supreme Court will hand down its ruling, but I'm certainly looking forward to reading it.

1 comment:

records management said...

Fascinating! I find it ironic that most people keep records for legal liability issues and now Rhodes is suing because these records were deleted.