GOP aide asks court to force e-mail retrieval

10/2/2009

Following the admission under oath by an official of the Lucas County Board of Elections that election employees have been deleting office e-mails, a top Republican yesterday asked a court to order the county to hire a forensic computer expert to search for the erased e-mails.

Kelly Bensman, a member of the county Republican Party's executive committee, requested the search in a motion in her ongoing public-records lawsuit against the elections board in Ohio's 6th District Court of Appeals. She asked that the county be forced to hire the search expert at its own expense.

"It's about them being open and transparent," said Ms. Bensman, who is represented by attorney Anthony DeGidio.

Yesterday's court filing was made after the election board's information services manager, Martin Limmer, who handles the board's public-records requests, said in a sworn deposition on Sept. 17 that he and at least one other board employee deleted

e-mails that they probably should not have.

"I didn't realize we were under obligations to keep every single e-mail we ever received or were sent," Mr. Limmer testified.

In Ohio, e-mails sent or received by public employees from their office computers are, for the most part, considered public records, subject to state record retention and destruction policies.

Mr. Limmer said after his deposition that he believes the deleted election board e-mails still exist somewhere on the county's com-puter system.

The content of the deleted

e-mails was unclear.

"They weren't really destroyed, if you want to call [it] destroyed. They went to a … trash mailbox, so technically they got moved from one mailbox to another, and they weren't deleted," he said in his sworn deposition.

Both John Borell, the Lucas County assistant prosecutor representing the board of elections, and Patrick Kriner, the board's chairman, said yesterday afternoon that they had not yet seen Ms. Bensman's motion and could not comment on its claims.

"All I know is that we comply with the county's e-mail policy relative to when we can delete and can't delete, and I don't know that particularly any e-mails were purposely or intentionally deleted in any way, shape, or form," Mr. Kriner said.

Ms. Bensman's court filing also calls attention to Mr. Limmer's admission in court that a June 18 affidavit he signed was false.

The affidavit - a sworn statement - was filed with the appellate court by Mr. Borell in support of the elections board's motion to dismiss Ms. Bensman's lawsuit. It stated that elections officials had given her all the records that the court ordered they turn over.

Mr. Limmer swore in the affidavit that he gave Ms. Bensman copies of the records that she was still claiming she hadn't received. By then, Mr. Borell had insisted for months that the board had given her "twice the records she requested."

Yet Mr. Limmer conceded in his Sept. 17 deposition that he didn't know whether he gave Ms. Bensman everything. He admitted under questioning that he did not check the dates of the e-mails he copied onto a CD-ROM for her, and could not confirm whether or not someone might have deleted e-mails from the full batch that she requested.

Mr. Limmer also said at the deposition that Mr. Borell was not present in the room when he signed the affidavit, contrary to the statement Mr. Borell signed as a notary for the affidavit.

"I think I signed it in my office and faxed it back to him, or it went back through interoffice mail. I don't remember," Mr. Limmer testified.

Neither Mr. Limmer or Mr. Borell returned messages yesterday afternoon seeking comment about the affidavit. Earlier in the day, Mr. Borell stressed that the deposition testimony should not be considered final.

"Sometimes questions are not completely understood when they're asked," he said.

County Prosecutor Julia Bates said she could not comment on Mr. Borell's involvement in the affidavit, but said: "I can only tell you that I've known John Borell ever since I hired him 10 or 12 years ago.

"His ethics are above reproach, so whatever it is all about, I'm sure we'll get to the bottom of it," the prosecutor said.

In his deposition, Mr. Limmer conceded that the county elections office had no safeguards to prevent employees from deleting e-mails that are public records.

He also said that he waited as long as a month before forwarding one of Ms. Bensman's records requests for processing, and conceded that some of the e-mails she requested possibly could have been deleted during that delay.

But later in Mr. Limmer's testimony, moments after he conceded that the elections board failed to fulfill a Bensman request for 2008 e-mails sent and received by Jill Kelly, the former Republican elections board deputy director, his testimony was cut short by an off-the-record conversation between Mr. Borell and Mr. DeGidio.

The attorneys agreed to suspend the testimony for a month while the board worked to supply the missing e-mails to Ms. Bensman.

Although Mr. Limmer was unavailable for comment yesterday, he said Wednesday that he believes Ms. Kelly's e-mails still exist.

Ms. Bensman is seeking Ms. Kelly's e-mails from Jan. 1, 2008, to April 23, 2008, a period in which she alleges elections board members and employees used the elections office to discredit an insurgency campaign by Jon Stainbrook to win the GOP chairmanship.

Ms. Bensman, a longtime associate of Mr. Stainbrook, said yesterday she believes elections officials and the board used Mr. Limmer as a "fall guy" in an attempt to withhold records from her.

"It's unfortunate that they're making their employees take the hit for them," she said.

Mr. Kriner, the board chairman, called that allegation absurd.

"No board member is telling any staff person to delete files, nobody is telling Marty Limmer to drag his feet," Mr. Kriner said, adding that the only reason Ms. Bensman's requests experienced delays was because they were busy with election-related business.

"When we've got campaigns to monitor and we've got elections to run - that is our first mission," Mr. Kriner said. "If it takes us a little longer to get back to Kelly Bensman with her ongoing requests for information, which seem to not yield, in my opinion, anything pertinent … we get to those when we can."

Mr. Stainbrook, the GOP chairman, said the county needs to undertake a forensic search for the board's deleted e-mails.

"They were deleting them or holding them back - one of the two," Mr. Stainbrook said.

Contact JC Reindl at:

jreindl@theblade.com

or 419-724-6065.