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Published: Tuesday, 12/9/2008

State’s high court orders Seneca County commissioners to make effort to recover deleted e-mails

BY JIM PROVANCE
BLADE COLUMBUS BUREAU CHIEF

COLUMBUS - In a groundbreaking decision on electronic public records, the Ohio Supreme Court Tuesday ordered the Seneca County Commissioners to make "reasonable" efforts to retrieve deleted e-mails related to the fate of their historic courthouse.

The high court unanimously found that records don’t cease to be public if they are improperly deleted and are still retrievable from a computer’s hard drive.

"…(A)lthough the board refers to the potential expenditure of ‘tens of thousands of dollars,’ it has not introduced evidence to support this sum," wrote Justice Paul Pfeifer. "Moreover, insofar as the e-mails still exist on the commissioners’ computers, they remain public records, and the board has a duty to organize and maintain them in a manner in which they can be made available for inspection and copying."

The court found that The Blade had established that deleted e-mails may be recoverable for a time, because they remain on a computer’s hard drive until that space is overwritten by new data. The court noted that the commissioners did not rebut this.

Noting the "novel issue of the recovery of deleted e-mails," the court ruled that the commissioners must undertake "reasonable" efforts to recover the files to meet their general responsibility under the state’s Public Records Act. The county does not have to undertake a "Herculean" effort, the court said.

The county must inform the newspaper of the results of its computer forensics efforts within two months.

The court declined to order the county to "promptly comply" with similar public records requests in the future, and it also rejected the newspaper’s request that the commissioners reimburse it for its attorney fees.

The newspaper sued to force the county to hire a forensic computer expert, arguing that it had reason to believe that some of the deleted e-mails contained illegal private communications related to the proposed razing of the 1884 county courthouse weeks before the Aug. 31, 2006, public vote to do so.

The court dismissed the county’s argument that a ruling for The Blade would "severely" compromise the government’s ability to use e-mail by forcing it to spend "countless hours" and "endless finances" to comply with public records requests.

"If anything, our holding ensures that public officials will be more cognizant of their duties under the applicable records retention and disposition policies and will be less likely to delete work-related public office e-mails in violation of those policies," wrote Justice Pfeifer.

"Otherwise, without proper preservation of public records, ‘the right of access to government records is a hollow one’," he wrote.

Contact Jim Provance at:

jprovance@theblade.com

or 614-221-0496.



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