B. Destruction of Public Records. Rhodes v. City of New Philadelphia

B. Destruction of Public Records Rhodes v. City of New Philadelphia 129 OHIO ST. 3D 304, 2011-OHIO-3279, 951 N.E.2D 782 DECIDED JULY 7, 2011 I. INTRODUCTION In Rhodes v. City of New Philadelphia, 1 the Supreme Court of Ohio was faced with interpreting the language of a statute. The entire case turned on the court s interpretation of a single word aggrieved. 2 The procedural history of the case demonstrates the difficulties in ascribing a meaning to a statutory word that is not defined in the statutory context. 3 The meaning that the Supreme Court of Ohio gave the word creates problems for citizens seeking to hold the government accountable for failure to follow the law. 4 Furthermore, the Ohio Legislature responded to the case by promulgating amendments to the relevant statute that imposes even greater burdens on those citizens. 5 These restrictions impose a limitation on a citizen enforcing his or her right to observe their own government and scrutinize its decisions, 6 that is too great. These limitations strike at the very heart of transparent democracy. 7 II. STATEMENT OF FACTS AND PROCEDURAL HISTORY A. Factual History In July 2007, Appellee, Timothy Rhodes, sent a public-records request to the Police Department of the city of New Philadelphia. 8 He requested recordings called reel-to-reel tapes, which come from a form of technology called Dictaphone-Dictatape Logger, which is no longer used. 9 Rhodes 1. 129 Ohio St. 3d 304, 2011-Ohio-3279, 951 N.E.2d 782 (2011). 2. Id. at 307, 2011-Ohio-3279 13, 951 N.E.2d at 786. 3. See infra Part II.B. 4. See infra Part IV.A. 5. See infra Part IV.B. 6. Rhodes v. City of New Philadelphia, 129 Ohio St. 3d at 308, 2011-Ohio-3279 19, 951 N.E.2d at 786 (citing Kish v. Akron, 109 Ohio St. 3d 162, 846 N.E.2d 811 (2006)). 7. Daxton R. Chip Stewart, Let the Sunshine In, or Else: An Examination of the Teeth of State and Federal Open Meetings and Open Records Laws, 15 COMM. L. & POL Y 265, 265 (2010). 8. Rhodes, 129 Ohio St. 3d at 305, 2011-Ohio-3279 2, 951 N.E.2d at 784. 9. Id., 2011-Ohio-3279 2, 951 N.E.2d at 784. 1311

1312 OHIO NORTHERN UNIVERSITY LAW REVIEW [Vol. 38 wanted twenty years worth of tapes from 1975 to 1995. 10 Each individual tape recorded twenty-four hours worth of the Police Department s happenings through telephone calls and radio dispatches. 11 Rhodes made the same request to a number of other Ohio cities for this outdated form of technology. 12 The majority of the other cities had not saved the reel-to-reel tapes, however they had followed the proper procedures for erasing their recordings as prescribed by section 149.39 of the Ohio Revised Code. 13 All of the public entities, except for the New Philadelphia Police Department, had properly obtained permission from the Ohio Historical Society and Ohio Auditor of State before erasing the tapes. 14 B. Procedural History Rhodes filed a complaint against the New Philadelphia Police Department pursuant to section 149.351(B) of the Ohio Revised Code for the Department s improper erasure of the records. 15 He pled that he was aggrieved by the violation and demanded the statutorily prescribed amount of $1,000 per each reel-to-reel recording destroyed. 16 Both parties filed for summary judgment. 17 The trial court denied the motions, holding that there was still an issue of material fact concerning the amount of alleged violations and about whether Rhodes was actually aggrieved. 18 The issue was thus presented to a jury. 19 At trial, Rhodes testified that his purpose for the record request was to hear how the police department handled dispatch calls. 20 However, in a letter to the city of Dover, Rhodes expressed that he only wanted the records if the city did not have a previously approved schedule for disposition of public records. 21 Rhodes claimed in another letter that the request was important to his research concerning record disposal. 22 Rhodes admitted 10. Id., 2011-Ohio-3279 2, 951 N.E.2d at 784. 11. Id., 2011-Ohio-3279 2, 951 N.E.2d at 784. 12. Id., 2011-Ohio-3279 3, 951 N.E.2d at 784. 13. Rhodes, 129 Ohio St. 3d at 305-06, 2011-Ohio-3279 3-4, 951 N.E.2d at 784 (citing see OHIO REV. CODE ANN. 149.39 (West 2012)). 14. Id. at 305-06, 2011-Ohio-3279 4, 951 N.E.2d at 784 (citing see OHIO REV. CODE ANN. 149.39). 15. Id. at 306, 2011-Ohio-3279 4, 951 N.E.2d at 784-85. 16. Id., 2011-Ohio-3279 4, 951 N.E.2d at 784-85. 17. Id., 2011-Ohio-3279 5, 951 N.E.2d at 785. 18. Rhodes, 129 Ohio St. 3d at 306, 2011-Ohio-3279 5, 951 N.E.2d at 785. 19. Id., 2011-Ohio-3279 5, 951 N.E.2d at 785. 20. Id., 2011-Ohio-3279 6, 951 N.E.2d at 785. 21. Id., 2011-Ohio-3279 6, 951 N.E.2d at 785. 22. Id., 2011-Ohio-3279 6, 951 N.E.2d at 785.

2012] RHODES V. CITY OF NEW PHILADELPHIA 1313 writing those things on cross-examination. 23 He posited that his purpose for the records request was immaterial, as the law requires the public entity to fulfill the request with no inquiry into the purpose of the request. 24 New Philadelphia asserted that Rhodes could not be aggrieved since he did not actually want the records that he was requesting. 25 The trial court issued instructions to the jury that included both parties definitions of aggrieved person. 26 The instructions concerning the definition were as follows: Black s Law Dictionary defines aggrieved as (Of a person or entity) having legal rights that are adversely affected; having been harmed by an infringement of legal rights. Under R.C. 149.351, a person is aggrieved where the improper disposition of a record infringes upon a person s legal right to scrutinize and evaluate a governmental decision. A person s right to access public records is a substantive right. A person does not have to establish a proper purpose or any purpose for seeking public records. 27 The jury found that Rhodes was not aggrieved by New Philadelphia s actions, and a verdict was entered accordingly. 28 On appeal, the Fifth District Court of Appeals reversed and remanded. 29 The court used a different definition of aggrieved person and held that the issue should have never gone before a jury. 30 The court defined it for the purposes of the statute as any member of the public who makes a lawful public records request and is denied those records. 31 The court held that this definition should have been applied at the time of summary judgment, and that Rhodes motion should have been granted. 32 The court remanded 23. Rhodes, 129 Ohio St. 3d at 306, 2011-Ohio-3279 6, 951 N.E.2d at 785. 24. Id., 2011-Ohio-3279 7, 951 N.E.2d at 785. 25. Id., 2011-Ohio-3279 7, 951 N.E.2d at 785. 26. Id., 2011-Ohio-3279 7, 951 N.E.2d at 785. 27. Id. at 306-07, 2011-Ohio-3279 8-10, 951 N.E.2d at 785. 28. Rhodes, 129 Ohio St. 3d at 307, 2011-Ohio-3279 11, 951 N.E.2d at 785. 29. Id., 2011-Ohio-3279 12, 951 N.E.2d at 785. 30. Id., 2011-Ohio-3279 12, 951 N.E.2d at 785. 31. Id., 2011-Ohio-3279 12, 951 N.E.2d at 785 (quoting Rhodes v. New Philadelphia, No. 2009AP020013, 2010-Ohio-1730 32 (Ohio App. 5th Dist. 2010)). 32. Id., 2011-Ohio-3279 12, 951 N.E.2d at 785.

1314 OHIO NORTHERN UNIVERSITY LAW REVIEW [Vol. 38 for a new trial only on the factual question of the number of violations that New Philadelphia had committed. 33 III. DECISION AND RATIONALE A. Majority Opinion of Justice McGee Brown The Supreme Court of Ohio took up the issue of whether Rhodes was an aggrieved person within the definition of section 149.351(B) of the Ohio Revised Code. 34 The facts that New Philadelphia is a public office, that it had reel-to-reel tapes, that the tapes were destroyed without approval, that Rhodes requested the tapes, and that New Philadelphia did not comply with the request because of the unapproved destruction were undisputed. 35 The majority began by discussing the relevant statutory provisions. 36 Section 149.43(B)(1) of the Ohio Revised Code requires that public offices, upon receipt of a request, make public records available for inspection to any person.... 37 The same section prohibits public offices from destroying public records unless it is done according to the law in order to facilitate the availability to the public. 38 The statute also provides a remedy for a civil forfeiture suit with damages of $1,000 per violation and reasonable attorney s fees. 39 The statute describes the individual eligible to bring such a suit as [a]ny person who is aggrieved by the removal, destruction, mutilation, or transfer of, or by other damage to or disposition of a record in violation of division (A) of this section.... 40 Therefore, in order to qualify for the forfeiture action, Rhodes needed to have been aggrieved by an improper disposal of public records by a public office, of whom public records were requested, and who was bound by the above stated statutory requirements. 41 Rhodes did request public records from the New Philadelphia Police Department, which is required to maintain those records according to the statutory requirements, and those records were improperly disposed. 42 The pivotal inquiry was whether Rhodes was 33. Rhodes, 129 Ohio St. 3d at 307, 2011-Ohio-3279 12, 951 N.E.2d at 785. 34. Id., 2011-Ohio-3279 13, 951 N.E.2d at 786. 35. Id., 2011-Ohio-3279 13, 951 N.E.2d at 785-86. 36. Id., 2011-Ohio-3279 14, 951 N.E.2d at 786. 37. Id., 2011-Ohio-3279 14, 951 N.E.2d at 786 (quoting OHIO REV. CODE ANN. 149.43(B)(1)). 38. Rhodes, 129 Ohio St. 3d at 307, 2011-Ohio-3279 14, 951 N.E.2d at 786 (citing OHIO REV. CODE ANN. 149.43(A)). 39. Id. at 308, 2011-Ohio-3279 15, 951 N.E.2d at 786. 40. Id., 2011-Ohio-3279 15, 951 N.E.2d at 786 (quoting OHIO REV. CODE ANN. 149.43(B)). 41. Id., 2011-Ohio-3279 16, 951 N.E.2d at 786. 42. Id. at 307, 2011-Ohio-3279 13, 951 N.E.2d at 785-86.

2012] RHODES V. CITY OF NEW PHILADELPHIA 1315 aggrieved. 43 Unfortunately, the term is not defined for the relevant section in the Ohio Revised Code. 44 Following the rule of construction that the court is to read statutory language in its context and pursuant to the rules of grammar and common usage, the court looked to the plain and ordinary meaning of the word aggrieved. 45 Using Black s Law Dictionary, the court defined aggrieved as having legal rights that are adversely affected; having been harmed by an infringement of legal rights. 46 Per this definition, it is required that New Philadelphia must have infringed on Rhodes legal rights through their conduct. 47 This then led to looking at the nature of the rights conferred and protected by the Public Records Act, in order to ascertain if Rhodes legal rights were infringed upon. 48 The court then examined the purpose of the Public Records Act and how the court has construed the language in past cases. 49 The Ohio Public Records Act codified an individual s right in inspecting public records in order to monitor and hold the government accountable to the citizenry. 50 Precedent has established that section 149.43(B) of the Ohio Revised Code requires that a public office must comply with all requests for public records and that the individual need not disclose his or her purpose for the request. 51 The broad language of the statute that led to this interpretation demonstrated the great importance that the General Assembly placed on the right of individuals to monitor the government through public records. 52 The court acknowledged that this broad interpretation has the potential of wasting public funds since all requests must be fulfilled. 53 However, the court stated that the General Assembly weighed the interests involved and decided that the risk of wasted public funds was worth ensuring that individuals had 43. Rhodes, 129 Ohio St. 3d at 307, 2011-Ohio-3279 13, 951 N.E.2d at 786. 44. Id. at 308, 2011-Ohio-3279 16, 951 N.E.2d at 786. 45. Id., 2011-Ohio-3279 17, 951 N.E.2d at 786 (citing OHIO REV. CODE ANN. 1.42 (West 2012); Sharp v. Union Carbide Corp., 38 Ohio St. 3d 69, 70, 525 N.E.2d 1386, 1387 (1988)). 46. Id., 2011-Ohio-3279 18, 951 N.E.2d at 786 (quoting BLACK S LAW DICTIONARY 77 (9th ed. 2009)). 47. Id., 2011-Ohio-3279 18, 951 N.E.2d at 786. 48. Rhodes, 129 Ohio St. 3d at 308, 2011-Ohio-3279 18, 951 N.E.2d at 786. 49. See id., 2011-Ohio-3279 19, 951 N.E.2d at 786-87. 50. Id., 2011-Ohio-3279 19, 951 N.E.2d at 786-87. 51. Id. at 308-09, 2011-Ohio-3279 20, 951 N.E.2d at 787 (citing State ex rel. Fant v. Enright, 66 Ohio St. 3d 186,188, 610 N.E.2d 997, 998 (1993); Gilbert v. Summit Cty., 104 Ohio St. 3d 660, 662-62, 821 N.E.2d 564, 567 (2004)). 52. Id. at 309, 2011-Ohio-3279 21, 951 N.E.2d at 787. 53. Rhodes, 129 Ohio St. 3d at 309, 2011-Ohio-3279 22, 951 N.E.2d at 787.

1316 OHIO NORTHERN UNIVERSITY LAW REVIEW [Vol. 38 access to public records, as evidenced by the expansive language of the statute. 54 The court then turned to examine the statutory language in dispute. 55 The language of section 149.351 of the Ohio Revised Code is more restrictive in nature. 56 A person who can bring the action is limited to a person that has been aggrieved. 57 This narrows the individuals that the statute applies to, unlike the expansive nature of the request statute. 58 As every term in a statute must be given effect, the court stated: [W]e conclude that the General Assembly did not intend to impose a forfeiture when it can be proved that the requester s legal rights were not infringed, because the requester s only intent was to prove the nonexistence of the records. 59 Due to this limitation of individuals that qualify for a remedy, the court reasoned that the remedy is only available to a person who is actually seeking the records, not seeking forfeiture. 60 The court then looked to precedent in order to support the claim that the idea that an individual must be seeking the actual records has been present in the court s interpretations of other terms in the Ohio Public Records Act. 61 It has only been present as a presumption, but it was present nonetheless. 62 In Morgan v. New Lexington, 63 the Supreme Court of Ohio upheld an individual s right to access public records even though the purpose for accessing those records was likely bad. 64 The court held that neither the moral condition of the requestor nor the purpose for which the records were requested have any relevance to whether the request should be fulfilled. 65 Similarly, in Kish v. Akron, 66 the court upheld an individual s request for records which petitioner intended to use in a court case against the city of Akron. 67 The court reasoned that Rhodes was significantly 54. Id., 2011-Ohio-3279 22, 951 N.E.2d at 787 (citing Kish, 109 Ohio St. 3d at 173, 846 N.E.2d at 822). 55. See id., 2011-Ohio-3279 23, 951 N.E.2d at 787. 56. See id., 2011-Ohio-3279 23, 951 N.E.2d at 787. 57. Id., 2011-Ohio-3279 23, 951 N.E.2d at 787 (citing OHIO REV. CODE. ANN. 149.351(B) (West 2012)). 58. See Rhodes, 129 Ohio St. 3d at 309, 2011-Ohio-3279 23, 951 N.E.2d at 787. 59. Id., 2011-Ohio-3279 23, 951 N.E.2d at 787. 60. Id. at 309-10, 2011-Ohio-3279 24, 951 N.E.2d at 787. 61. Id. at 310, 2011-Ohio-3279 24, 951 N.E.2d at 787-88. 62. See id. at 309-10, 2011-Ohio-3279 24, 951 N.E.2d at 787-88. 63. 112 Ohio St. 3d 33, 2006-Ohio-6365, 857 N.E.2d 1208 (2006). 64. Rhodes, 129 Ohio St. 3d at 310, 2011-Ohio-3279 25, 951 N.E.2d at 788 (citing Morgan v. New Lexington, 112 Ohio St. 3d at 43, 857 N.E.2d at 1219). 65. Id., 2011-Ohio-3279 25, 951 N.E.2d at 788 (citing Morgan, 112 Ohio St. 3d at 43, 857 N.E.2d at 1219). 66. 109 Ohio St. 3d 162, 2006-Ohio-1244, 846 N.E.2d 811. 67. Rhodes, 129 Ohio St. 3d at 310, 2011-Ohio-3279 25, 951 N.E.2d at 788 (citing Kish, 109 Ohio St. 3d at 163-64, 846 N.E.2d at 814).

2012] RHODES V. CITY OF NEW PHILADELPHIA 1317 different from this precedent because each one of the petitioners wanted the actual public records, despite their underlying purposes. 68 The court characterized Rhodes intent as feigned. 69 The court held that when an individual does not actually want the public records and is instead hoping that the request is denied, the individual is not aggrieved by an improper destruction, and therefore the person is not entitled to a forfeiture action. 70 In a unanimous decision, the Fifth District Court of Appeals was reversed. 71 IV. ANALYSIS The impact that this decision will have on the public s ability to enforce their rights to obtain public records is substantial and imposes too great of a burden on citizens. However, even if one believes that the court did not impose too great a burden, it cannot be ignored that the Ohio Legislature moved quickly to limit forfeiture suits. 72 The extent to which the Ohio Legislature limited the public s access to public records is well beyond the limitation that the court placed on the right. 73 The combination of Rhodes and the new statutory changes chips away at the public s practical ability to access public records and exercise their important right of monitoring the government. A. The Court Placed a New Burden on Citizens Enforcement is a crucial component of ensuring compliance with public access laws, which are at the heart of transparent democracy. 74 The civil remedies that states enact to punish violating public entities are done in an attempt to rectify past bad actions and to deter further violations. 75 But the ability of these laws to serve the purposes for which they were written is severely limited if the courts chip away at when the right applies, resulting in the court tak[ing] the teeth out of the provisions. 76 Thirty-two audits of open records requests between 1997 and 2004 revealed that public entities 68. Id., 2011-Ohio-3279 26, 951 N.E.2d at 788. 69. Id., 2011-Ohio-3279 27, 951 N.E.2d at 788. 70. Id., 2011-Ohio-3279 28, 951 N.E.2d at 788. 71. Id. at 311, 2011-Ohio-3279 28, 951 N.E.2d at 788. 72. See Sunshine Law News: Recently Enacted Changes to R.C. 149.351 and Rhodes v. New Philadelphia, OHIO ATT Y GEN. MIKE DEWINE (Aug. 2, 2011), http://www.ohioattorneygeneral.gov/ Briefing-Room/Newsletters/Legal-news/August-2011/Recently-Enacted-Changes-to-R-C--149-351-and- Rhode [hereinafter MIKE DEWINE]. 73. See id. 74. Stewart, supra note 7, at 265. 75. Id. at 267. 76. Id. at 269.

1318 OHIO NORTHERN UNIVERSITY LAW REVIEW [Vol. 38 only comply fifty-nine percent of the time. 77 Such a number is not unique to one geographic area and similarly low percentages of compliance can be found throughout the United States. 78 In a country that is in part defined by the public s access to records as a way to monitor the government, this number is simply not acceptable. 79 Courts should be protecting the citizen s right to access those public records, not placing more limits on the process, like the Supreme Court of Ohio does in Rhodes. 80 The court in Rhodes created a mechanism by which public entities can now destroy public records with limited repercussions. 81 This is not evident on the face of the opinion; however, it is the practical result of the court s decision. The court s opinion on the face still says that public entities must comply with the request for records from any person, and therefore, at first glance, seems to uphold that unapproved record destruction is not permitted. 82 However, by limiting so severely those to whom a remedy is available for the public entity s incorrect disposal of public records, the court has ensured that only those individuals that demonstrate a legitimate purpose for the records have the opportunity to hold the public entity accountable for such a failure. 83 This allows a public entity, when confronted with its failure to properly maintain public records, to respond by pointing the finger at the citizen and stating, Well, he did not really want it anyway. 84 The court makes such a defense legitimate. 85 The laws in place across the country that relate to public records are already difficult to enforce on a practical level. 86 Across the board, the remedies available to individuals who have been denied access to public records are weak. 87 This leaves citizens to bear the financial costs of litigation, as well as the time and effort of trial for a minimal recovery. 88 The Supreme Court of Ohio only increases the burden on individuals in Ohio wishing to hold a public entity accountable. 89 Instead of having the reasonable burden of demonstrating that the respondent was a public entity subject to the requirements imposed upon public records, that a request was 77. Id. 78. See id. at 270-71. 79. See Stewart, supra note 7, at 268-69. 80. See Rhodes, 129 Ohio St. 3d at 310-11, 2011-Ohio 3279 28, 951 N.E.2d at 788. 81. See id., 2011-Ohio 3279 28, 951 N.E.2d at 788. 82. Id. at 308-09, 2011-Ohio 3279 20-21, 951 N.E.2d at 787. 83. See id. at 310, 2011-Ohio 3279 28, 951 N.E.2d at 788. 84. See id., 2011-Ohio 3279 28, 951 N.E.2d at 788. 85. See Rhodes, 129 Ohio St. 3d at 310, 2011-Ohio 3279 28, 951 N.E.2d at 788. 86. See Stewart, supra note 7, at 298. 87. See id. at 300. 88. See id. 89. See Rhodes, 129 Ohio St. 3d at 310, 2011-Ohio 3279 28, 951 N.E.2d at 788.

2012] RHODES V. CITY OF NEW PHILADELPHIA 1319 made for those public records, and that it was denied because of improper disposal, the individual has a much greater burden. 90 The petitioner must now be prepared to respond to an allegation that his or her purpose for requesting the document was not one of the approved purposes for which relief could be granted. 91 This increased burden will only deter citizens from attempting to hold public entities accountable through the courts. The public entity now has even less impetus for complying with the public records statutes as a result of the court s decision. B. The Ohio Legislature Placed Great Burdens on Citizens Even if the court s decision stood up to critical evaluation, the action of the Ohio Legislature has created burdens that should not be allowed to remain. Not willing to leave the outcome up to the then-pending case in the Supreme Court of Ohio, the legislature responded by quickly amending the statute in question in Rhodes. 92 The new changes to section 149.351 of the Ohio Revised Code are significant and place greater limits on civil forfeiture actions for unauthorized destruction of public records than previously in Ohio. 93 This burden is much too great when weighed against the court-recognized right to monitor the government through public records. 94 The first change is that the previous amount of $1,000 per violation 95 is now limited to $10,000 total. 96 Also, the previously unlimited reasonable attorney s fees, 97 can now be no more than the total amount of the civil forfeiture. 98 The amended statute also provides a defense for the public entity in a forfeiture action. 99 If the public office can show, with clear and convincing evidence, that the individual just requested the records for the purpose of filing a civil forfeiture act, the plaintiff will be deemed not aggrieved and will not succeed. 100 Also, the statute provides that after one person has recovered under this statute that no one else can recover for the 90. Id. at 308, 2011-Ohio 3279 16, 951 N.E.2d at 786. 91. See id. at 310, 2011-Ohio 3279 28, 951 N.E.2d at 788. 92. See MIKE DEWINE, supra note 72. 93. See id. 94. See Rhodes, 129 Ohio St. 3d at 308, 2011-Ohio-3279 19, 951 N.E.2d at 786-87. 95. Id. at 305 n.1, 2011-Ohio-3279 1 n.1, 951 N.E.2d at 784 n.1 (quoting OHIO REV. CODE ANN. 149.351(B)(1)). 96. MIKE DEWINE, supra note 72. 97. Rhodes, 129 Ohio St. 3d at 305 n.1, 2011-Ohio-3279 1 n.1, 951 N.E.2d at 784 n.1 (quoting OHIO REV. CODE ANN. 149.351(B)(1)). 98. MIKE DEWINE, supra note 72. 99. Id. 100. Id.

1320 OHIO NORTHERN UNIVERSITY LAW REVIEW [Vol. 38 destruction of that particular record. 101 And finally, the amended language places a statute of limitation of five years on the action. 102 These new statutory limitations provide an even greater barrier to the public in enforcing their rights to public records. The limitation to $10,000 in recovery and the same cap on attorney s fees will have the impact of discouraging even legitimate claims. 103 Such cases tend to get costly fairly quickly, as appeals are frequent, 104 and it is unlikely that any plaintiff will bring a case in which they are sure to lose money. 105 This will lead to individuals who have legitimate claims against public entities avoiding the litigation that would force the entity to comply with state law. Similarly, the cap on recovery is likely to serve as an impetus for public offices to destroy records in order to prevent any bad behavior from coming to light. 106 It is unnecessary to list all of the possible penalties that the state can impose upon individuals for the multitude of ways that one can break the law. However, it is not unreasonable to believe that any number of those penalties could convince public officials to destroy any records that contained evidence of illegal behavior. For example, committing bribery is a felony of the third degree. 107 The Ohio Revised Code requires that an individual who was serving in a position of honor, trust, or profit and was a participant in a public retirement system must forfeit his public retirement benefits if convicted of bribery. 108 Similarly, that person would be forever disqualified from holding a public office, employment, or position of trust in this state. 109 Those two penalties alone, without considering any other possible penalty a judge may impose, would likely be impetus enough for an individual to hide any evidence of bribery that could have been found in the public records. The new statutory limitation may make it cheaper for the office to simply destroy the records, make the maximum $20,000 payment if they cannot prove that the petitioner was not aggrieved, and 101. Id. 102. Id. 103. Troy Harter, Supreme Court s ruling shows the Legislature overreached: Court s decision could create yet another barrier to public records destruction lawsuits, OHIO ENVTL. L. CTR. (July 18, 2011), http://ohioenvirolawcenter.wordpress.com/2011/07/18/supreme-court s-ruling-shows-thelegislature-overreached. 104. See, e.g., Morgan, 112 Ohio St. 3d 33, 857 N.E.2d 1208; Kish, 109 Ohio St. 3d 162, 846 N.E.2d 811; State ex rel. Holloman v. Collins, No. 09AP-1184, 2010-Ohio-3034 (Ohio App. 10th Dist. June 30 2010); State ex rel. Bardwell v. Rocky River Police Dep t, No. 91022, 2009-Ohio-727 (Ohio App. 8th Dist. Feb. 17, 2009) (all are cases where record petitions there were upheld as valid went through one or more appeals). 105. Harter, supra note 103. 106. Id. 107. See OHIO REV. CODE ANN. 2921.02(E) (West 2012). 108. OHIO REV. CODE ANN. 2929.192(A) (West 2012). 109. OHIO REV. CODE ANN. 2921.02(F) (West 2012).

2012] RHODES V. CITY OF NEW PHILADELPHIA 1321 continue on in their illegal behavior. 110 It would be unusual for a public official to open themselves up to greater liability when the legislature has so neatly created a much more limited liability. The defense created for the public entity by the legislature is in line with the holding of Rhodes. 111 The same arguments presented above can be imputed against the statute as well. 112 The increased burden of having to respond to a stringently defined statutory defense will only decrease an individual s impetus for filing against the public entity. 113 The other aspect of the amended law that is concerning is the limitation that once one person recovers for the destruction of specific records, no one else may recover for the destruction of those records. 114 Thus, the Ohio Legislature is demonstrating that it does not matter whether a person was truly injured by a public entity s wrong doing, there will be a procedural bar to forfeiture. 115 This restriction is even greater than any of the others because it is not just a requirement that imposes a greater burden that will have the impact of discouraging suits. 116 This restriction makes an absolute bar at which even a truly aggrieved person may not recover. 117 How this limitation complies with the express purpose of the Ohio Public Records Act is unclear, if not completely indistinguishable. 118 V. CONCLUSION The public s access to public records in order to monitor the government has been recognized since the founding of the United States. 119 James Madison identified the right of freely examining public charters and measures, and free communication thereon as the only effective guardian of every other right. 120 The Supreme Court of Ohio limits this 110. See Harter, supra note 103. 111. See MIKE DEWINE, supra note 72. 112. See supra Part IV.A. 113. See id. 114. MIKE DEWINE, supra note 72. 115. See id. 116. See id. 117. See id. 118. See Rhodes, 129 Ohio St. 3d at 308, 2011-Ohio-3279 19, 951 N.E.2d at 786-87. The purpose of providing public access to government documents and records is to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed. Id., 2011-Ohio-3279 19, 951 N.E.2d at 786-87 (quoting Natl. Labor Relations Bd. v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978)). 119. See Stewart, supra note 7, at 268. 120. Id. (quoting 4 DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION 529 (J. Elliot ed. 1901), cited in John Moon, A Symposium of Critical Legal Study: The Freedom of Information Act : A Fundamental Contradiction, 34 AM. U. L. REV. 1157, 1168 (1985)).

1322 OHIO NORTHERN UNIVERSITY LAW REVIEW [Vol. 38 right in its holding in Rhodes, 121 and the Ohio Legislature further limits this right with new legislation. 122 These burdens are too great on citizens that have an interest in holding their government accountable and should not be allowed to remain in effect. ELISE NICOLE MCQUAIN 121. See Rhodes, 129 Ohio St. 3d at 310-11, 2011-Ohio 3279 28, 951 N.E.2d at 788. 122. See MIKE DEWINE, supra note 72.