Ohio Public Records Update: Rhodes v. New Philadelphia - A Person Must Intend To Access Records To Be Entitled To Civil Forfeiture Damages
Ohio law requires that public entities maintain public records for a certain period of time. Any person who has been "aggrieved" by the improper disposal of a public record can file a lawsuit against the public entity. The penalty is $1,000 per violation.
On July 7, 2011, the Supreme Court of Ohio held that only those people who intend to access public records can seek the penalty. Previously, anyone could simply request old, outdated documents from a public entity, with the sole purpose of learning that the records no longer existed. Then, if the entity's response revealed that the records had not been disposed of properly, the records-seeker could obtain a civil forfeiture of $1,000 per record improperly disposed of. These awards have reached into the millions.
But now, Rhodes v. New Philadelphia limits the class of potential plaintiffs. The facts were straightforward. Rhodes sent requests to eight different public entities for old reel-to-reel tapes. New Philadelphia was one of the entities. It had erased over the tapes, and therefore not properly disposed of them. Rhodes filed suit against New Philadelphia, seeking $1,000 for every record disposed of improperly. The legal issue was whether Rhodes was an "aggrieved" party under the statute.
The Ohio Supreme Court held that an "aggrieved" party is more than any member of the public who makes a lawful public records request and who is denied those records. An "aggrieved" party is now defined as a member of the public who makes a lawful public records request with the goal being to access the public records (and who is denied those records). If the goal of the request is to seek a forfeiture, then the requester is not an "aggrieved" party, and does not have a cause of action.
In short, New Philadelphia does not limit awards arising from genuine public records requests. But it can reduce the risk of the increasingly common civil forfeiture awards arising from requests for decades old, outdated records. If the requester has no intent of ever accessing those records, they can no longer recover that $1,000 penalty if the records do not exist.
One caveat exists, however. Courts will apply a presumption that a request is made to access the records, so if a public entity wants to rely on this defense, it has to have facts to prove that the requester had no intent to access the records.
If you have any questions about this decision, or how recent changes to Ohio's Public Records Act affect your organization, please contact Tom Allen, or any Ohio member of Frost Brown Todd's Government Services Practice Group.
 Slip Opinion No. 2011-Ohio-3279 (July 7, 2011).