Records: Burn ‘Em If You Got ‘Em, Ohio Pol Says…

A troubling legislative proposal in FOI-Land often involves an isolated example, coupled with narrow self-interest. Here is a beauty in Ohio, courtesy of IndieOnline.com:

A movement by some state lawmakers to significantly curb the penalty for destroying public records comes in direct response to two Massillon-area men who, critics say, are trying to profit from the system.

Ed Davila, of Jackson Township, is awaiting resolution to a records lawsuit in Bucyrus, where he initially was awarded $1.4 million in damages.

Massillon resident Timothy Rhodes’ case, in which he sought $4.9 million in damages from the city of New Philadelphia, is in front of the Ohio Supreme Court.

Those cases — paired with a slew of similar records requests by the men throughout the state — led to language in the proposed state budget that will protect local governments from large payouts.

State Sen. Bill Seitz, R-8, inserted language into Senate Bill 178 — the state budget — that will cap damages, known as civil forfeitures, at $10,000. State law calls for maximum damages of $1,000 for each destroyed record.

But public-records proponents say the proposal goes too far.

“We are opposed to this measure, though we understand the concern of local governments about those who would profit from wanting a record not to exist — which is the opposite intent of seeking a public record,” Dennis Hetzel, executive director of the Ohio Newspaper Association, said in an email. “However, we believe this measure would discourage cases involving legitimate records requests and could actually make it more attractive to a governmental body to destroy a record than fight disclosure of it.”

‘BIG BONANZA’

Seitz, of the Cincinnati area, said he was approached in December by a city solicitor in his district who was concerned about records-destruction cases in Bucyrus and New Philadelphia.

“There are plaintiff lawyers around the state that see this as a big bonanza for them,” Seitz said.

In crafting the language, Seitz sought “joint recommendations” from the state’s County Commissioners’ Association, Township Association, Municipal League, School Boards Association and Ohio Historical Society.

“These are taxpayer dollars,” he said. “To tell these small jurisdictions like a Massillon or a Bucyrus in these fiscally constrained times that they are potentially on the hook for six-figure or seven-figure damages for the routine destruction of records that are old makes very little sense. Why should the taxpayers be subject to that kind of a hit?”

The language also sets a four-year statute of limitations on seeking damages. It widens the class of documents that can be destroyed without approval from the Ohio Historical Society, the state archivist of public records. Attorney’s fees also would be limited to half of the forfeiture amount.

“It’s certainly not a license to destroy records,” Seitz said.

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