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Ohio Supreme Court rules against Akron records destruction

By The Associated Press

COLUMBUS, Ohio — The city of Akron could be forced to pay $860,000 for destroying records that documented how much time off two secretaries earned, the Ohio Supreme Court ruled yesterday.

The court's 4-3 decision said that the 860 time sheets were each an individual document under the state's open-records law and not part of a bigger record, meaning the city must pay $1,000 for the destruction of each document.

The $860,000 fine levied by a federal jury in 2001 was the largest ever awarded under state law dealing with destruction of records, according to attorneys on both sides.

Open-records advocates said yesterday's ruling sent a "monumental" message about the importance of public records. Representatives of local governments had a different take on the meaning of the decision.

"It allows people who have had small infractions with a lot of paper involved to make a lot of money easily," said attorney John Gotherman, representing the Ohio Municipal League.

The court clarified state law regarding the destruction of public records at the request of the 6th U.S. Circuit Court of Appeals in Cincinnati, which is hearing Akron's appeal of the jury's decision.

The secretaries used the time sheets to record how much time off they were owed as part of an informal system for awarding the time in lieu of overtime pay. The secretaries worked in the city's permits and plans division, where another employee destroyed the records after the city ended the practice.

Elizabeth Kish and Victoria Elder sued Akron for their unpaid time off and alleged the records were destroyed to thwart their efforts.

Each of the employees' time sheets had an independent role in documenting how a public office functioned, as defined under Ohio's public-records laws, said Justice Maureen O'Connor, writing for the majority.

Ohio laws regarding the creation and retention of public records "reinforce the understanding that open access to government papers is an integral entitlement of the people, to be preserved with vigilance and vigor," O'Connor wrote.

She rejected Akron's argument that violations should be judged by the purpose of the document and the number of acts of destruction.

That approach could reward "more sophisticated participants in the unlawful destruction of public documents" because they arranged "a wholesale destruction of hundreds or thousands of documents in one single event or transaction," O'Connor said.

She was joined by Chief Justice Thomas Moyer and justices Alice Robie Resnick and Paul Pfeifer.

In a dissent, Justice Judith Ann Lanzinger said the time sheets only documented the office's function when they were combined into one file.

The result of the decision could spell "catastrophic financial consequences for municipalities, townships, and agencies," Lanzinger said. She was joined by justices Evelyn Lundberg Stratton and Terrence O'Donnell.

Akron lawyer Bruce Christensen called the judgment a windfall for individuals who sue when a city employee makes a mistake handling public documents.

The money Akron would have to pay means fewer police and firefighters the city can hire, said Christensen, an assistant city law director. "I don't think that was intent of the Legislature," he said.

The lawyer representing Kish and Elder said the ruling made it clear that open records must be preserved.

"Ohio has a very strong public-records access law, which truly would be meaningless if you didn't have any teeth behind the law that says you must preserve the records," attorney Jennifer Corso said.

The federal appeals court will rely heavily on the decision, predicted David Marburger, an attorney representing the Ohio Newspaper Association.

"It's monumental," he said. "It sounds like a powerful message that you better not destroy records if you don't have authority to do that."


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