Inadvertent Destruction of Files Results in $860,000 - Are You at Risk?

In a warning to all municipalities and other political subdivisions to properly maintain and manage their document retention programs, the Ohio Supreme Court determined in Kish v. Akron, ______ Ohio St. 3d ______, 2006 Ohio 1244, that Ohio law allowed two employees of the City of Akron to recover an $860,000 forfeiture from the city for its inadvertent disposal of 860 compensatory-time (comp-time) sheets submitted by those employees to the city.

In a 4-3 split, a majority of the court determined that each comp-time sheet was a “record” and that the destruction of each record was a “violation” of R.C § 149.351, which authorizes a person aggrieved by the destruction of records to recover a $1,000 forfeiture for each violation.  Kish stands as a stark reminder to municipalities, as noted by the court, that “open access to government papers is an integral entitlement of the people,” which the courts will enforce “with vigilance and vigor.”

The genesis of Kish was a complaint brought in federal court by two employees of Akron’s Plans and Permits Division, alleging violations of the Fair Labor Standards Act, Ohio’s public records retention law and spoliation of evidence.  The employees had participated in an informal comp-time program that was ended after Kish filed a grievance arguing that the program violated the employees’ collective bargaining agreement.  After the program had been terminated, the comp-time forms were destroyed by a city employee who recently had assumed responsibility over them. 

Ultimately, a federal court jury awarded the two employees judgments of roughly $900 for the unused comp-time and $860,000 for the destruction of the records.  Akron appealed to the Sixth Circuit Court of Appeals which, finding itself faced with novel questions of Ohio public records law, certified those questions to the Ohio Supreme Court.

Akron argued on appeal that the $860,000 forfeiture was calculated improperly because there were no more than three “records” – the two files of comp-time sheets maintained for each employee plus a book containing a tally of the total comp time submitted by each employee.  Also, because the files and tally book were discarded in one action, Akron argued that there was only one, and certainly no more than three, “violations.”  As a result, the Sixth Circuit certified two questions to the Ohio Supreme Court:  (1) what constitutes a record as that term is used in R.C. § 149.351, and (2) what constitutes a violation as that term is used in R.C. § 149.351?

The Supreme Court answered the questions in simple, broad terms, holding that:

• a “record” may be a single document within a larger file of documents as well as a compilation of documents and can be any document, regardless of physical form or characteristic, whether in draft, compiled, raw or refined form, that is created or received or used by a public office or official in the organization, functions, policies, decisions, procedures, operations or other activities of the office; and
• a “violation” means any attempted or actual removal, mutilation, destruction, transfer or damage to a public record that is not permitted by law.

Applying these definitions, the Supreme Court held that each of the 860 comp-time forms submitted by an employee was a record, and that the destruction of each record was a violation.  Notably, while a “record” as defined in R.C. 149.011 must be a document that “serves to document the organization, functions, policies, decisions, procedures, operations, or other activities” a public office, the Supreme Court rewrote this definition to include any document that is “created, or received or used by a public office or official in the organization, functions, policies, decisions, procedures, operations, or other activities” of the office.

Public officials should consider at least two issues as a result of the Kish decision:

• First, no record can be destroyed safely unless its disposal is permitted by law.  For the state, this means that disposal must be in accordance with the state records program under R.C. §§ 149.33, 149.331, 149.332, 149.333 and 149.34.  For counties, municipal corporations, school districts and educational service centers, and townships this means that disposal must be in accordance with a retention schedule created and updated by a records commission (as provided in R.C. §§ 149.38, 149.39, 149.41 and 149.42, respectively). 

Other types of public offices may be able to create retention schedules under their statutory powers of operation.  In addition, any retention schedule must address all types of records, including drafts, and different physical forms of records, such as paper or electronic forms.  Notably, the Ohio Supreme Court held in Keller v. Columbus that a retention schedule, which addressed paper records, did not cover electronic versions of the same records.

• Second, this decision has in fact interpreted the definition of “record” so broadly that it could cover virtually any document kept by a public office. 

For years, Ohio courts have held that certain documents kept by a public office are not “records” because they did not document the “organization, functions, policies, decisions, procedures, operations or other activities” of the public office as required by law (for example, documents containing personal information of private citizens).  In light of the Kish decision, it is not clear whether public officials still can rely upon those holdings.  To be safe, public offices now may be required to take the anomalous step of assuring that disposal of items that arguably may not be “records” is nonetheless addressed in their records retention schedule. 

In other words, if the Kish decision does hold that virtually anything is a record, then a records retention schedule must cover virtually everything.

For further information on this or other legal issues, call or email your regular contact at Calfee or contact:  Jim Lang at 216.622.8563, jlang@calfee.com; Mark Wallach mwallach@calfee.comat 216.622.8344, ; or Stan Dobrowski at 614.621.7003, sdobrowski@calfee.com.