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Published: Wednesday, 12/10/2008

Deleted e-mail is still public record

BY JIM PROVANCE
BLADE COLUMBUS BUREAU CHIEF

COLUMBUS - Government cannot skirt its public-records responsibilities simply by hitting the delete button, the state's highest court unanimously ruled yesterday.

In a groundbreaking decision addressing electronic public records, the Ohio Supreme Court found that a deleted e-mail doesn't cease to be a public record if it can still be retrieved from a computer's hard drive.

The court ruled in favor of The Blade in ordering the Seneca County commissioners to make "reasonable'' efforts to retrieve deleted e-mails. It rejected the county's contention that such a ruling would "severely" compromise 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 Paul Pfeifer. "Otherwise, without proper preservation of public records, 'the right of access to government records is a hollow one.'•"

Noting that the "novel issue" of deleted e-mails was not previously settled law, the court did not find that the county's position was unreasonable. As a result, it rejected the newspaper's request that the commissioners reimburse it for its attorney fees.

The court also declined to order the county to "promptly comply" with similar public-records requests in the future, noting that The Blade failed to show a pattern of noncompliance on the county's part.

The Toledo newspaper, while reporting on the commissioners' decision to raze the county's landmark 1884 courthouse in downtown Tiffin, requested all e-mails sent, received, or deleted during an 18-month period beginning Jan. 1, 2006. The commissioners at first responded with a smattering of e-mails, but then, after the newspaper sued, suddenly produced more than 700 pages of additional e-mails.

The court found that the board may have deleted e-mails in violation of its own record-retention policy. It took note of "substantial gaps" in the initial response of the commissioners to The Blade's request and the fact that Commissioner Mike Bridinger had admitted to routinely deleting e-mails at one point. Commissioner Ben Nutter's e-mail record also had a several-month gap in which all his e-mails were deleted.

The newspaper sought to force the county to hire a forensic computer expert, arguing that it had reason to believe some of the deleted e-mails contained illegal private communications related to the courthouse's demolition weeks before the Aug. 31, 2006, commissioners' public vote to replace the historic building.

At that meeting the county commissioners, including two of the current commissioners - David Sauber and Mr. Nutter - voted to demolish the historic courthouse without a word of debate or discussion.

A local historic preservation group sued the commissioners, claiming they violated the state's open-meetings law by discussing the courthouse demolition outside of the public meeting, but courts rejected the claim, saying preservationists failed to produce evidence to prove their allegations.

The commissioners have since at least temporarily retreated from their plan to demolish the courthouse and are instead considering an agreement to allow the local port authority to renovate it and lease it back to the county.

The all-Republican Supreme Court agreed with The Blade that deleted e-mails could be recoverable for a time, because they remain on a computer's hard drive until that space is overwritten by new data.

"As long as these e-mails are on the hard drives of the commissioners' computers, they do not lose their status as public records," Justice Pfeifer wrote.

The court said the commissioners must undertake "reasonable" efforts to recover the data and report its findings to The Blade within two months. It went on to say the county does not have to undertake a "Herculean" effort, a term it did not define.

"It is reassuring that the Ohio Supreme Court agreed with us that the existing open-records law prohibits public officals from avoiding disclosure of their electronic deliberation simply by clicking their mouse on the delete button," said John Robinson Block, co-publisher and editor-in-chief of The Blade. "This decision will be cited in every single open-records case for 50 years and it will be cited in other states as well."

Frank Deaner, executive director of the Ohio Newspaper Association, called the decision "very significant."

"As far as I know, it's the first decision that gets into this technological matter," he said. He compared it to a question of whether a paper record would be less of a public record if it were kept in a dead or inactive file as opposed to an active file.

"By deleting [the e-mails], they weren't totally destroyed," he said. "They were just put in a different technological mode."

Fritz Byers, The Blade's attorney who brought the lawsuit and argued it before the Supreme Court, said the court's ruling is "a powerful statement about the principles of openness and accountability that animate Ohio's public-records law.

"The ruling applies those long-settled principles to the evolving and increasingly important realm of electronic communications, and it does so in a way that secures the public's rights of access to government against the efforts of public officials, whether taken cavalierly or through calculation, to defeat access and avoid scrutiny," Mr. Byers said last night.

Mark Weaver, the attorney who argued Seneca County's case, said the court's reference to "Herculean" effort was a new one for him.

"We're pleased that the court said we acted reasonably, and we're willing to look further to see if there's anything there," he said. "Whether we have to use forensic technology to look for every fragment of an e-mail, which is what The Blade was asking for, I don't think that's our obligation. Scouring the hard-drive for every fragment would be a Herculean effort."

Ben Nutter, the sole Democratic commissioner, said the county will put its outside information technology consultant on the job right away.

"Even though the court said we acted properly and didn't award legal fees, we still have a duty to produce even e-mails deleted in accordance with the law," he said. "What I find interesting is that when we made the same request of the Supreme Court that The Blade made of us, the court said it was too broad."

That request, dated Oct. 23, 2007, was sent to the Supreme Court by a staff member in the Columbus law firm representing Seneca County. The letter sought a review of "all e-mails to, from, or copying [carbon or blind] the Supreme Court Justices to members of the press, whether in an inbox, deleted folder, or stored anywhere on their computers in any electronic medium from January 1, 2006, until the present."

Chris Davey, the court's public information director, said he handles all public records requests as part of the court's administrative functions separately from the justices' deliberations. In his response, Mr. Davey rejected the request because "it is overbroad and does not identify any specific public records."

"The issues at play in the Seneca case and that request were substantially different from the request the court received in October, 2007," he said. He pointed to a recent Supreme Court ruling that rejected as overbroad a request from a Columbus attorney seeking all of a state representative's work-related communications during a specific time period.

Mr. Weaver said Seneca's letter was sent before the county's lawyers filed briefs in the case. Because the high court's record retention was similar to that of the county, he said the law firm hoped to learn whether it was on the right track in arguing before the court that The Blade's request was also overbroad.

Mr. Weaver made that argument before the court, but he never mentioned the public-records request his firm had filed with the Supreme Court. The justices did not address the "overbroad" argument of the records request made of them in yesterday's decision.

Mr. Block said the tactic used by Seneca County's lawyers in requesting the high court's e-mails was "outrageous."

"They introduced what they thought was a burdensome request to the Supreme Court in an effort to influence the outcome outside the official record of the case," Mr. Block said.

Mr. Bridinger, an early advocate of saving the courthouse, and fellow Republican Commissioner Sauber could not be reached for comment.

"This really strikes me as a blow for open government," said Doug Collar, a member of Tiffin's Architectural Review Board who was involved in the separate litigation to preserve the courthouse. "It's pretty groundbreaking and opens a whole new field of record-keeping. It seems to be a landmark decision that will affect other governmental institutions."

Contact Jim Provance at:

jprovance@theblade.com

or 614-221-0496.



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