In responding to public records requests, public offices must now be prepared to engage forensic computer experts to determine whether improperly deleted public records still reside in their computer systems. In State, ex rel. Toledo Blade Company v. Seneca County Board of Commissioners (2008) ____ Ohio St. 3d ____, 2008 Ohio 6253, the Ohio Supreme Court ordered the County Commissioners to recover deleted emails.
In the course of covering a story about the planned demolition of a historic courthouse, the Toledo Blade requested the opportunity to inspect all outgoing and incoming emails, including "all sent messages, received messages, deleted messages, and drafts of messages" of the County Commissioners during 2006 and 2007. In response, the County Commissioners engaged a consultant and searched every single folder in the hard drives of the computers of every person from whom e-mails were requested, and provided every available document responsive to the Blade's request. The County Commissioner's consultant stated that "while it may be possible to retrieve additional information from a hard drive with very expensive forensic tools, that information would be considered deleted by the user and would not be available to the user."
The Toledo Blade was not satisfied. In particular, the Blade had the following complaints: (1) No emails over a six month period were produced from a Commissioner's inbox (2) This Commissioner admitted to deleting emails during that period (3) A different County Commissioner produced no emails from the inbox or sent box (4) This Commissioner admitted to deleting all emails until recently (5) Of the emails produced by a third Commissioner, there were substantial gaps between the dates of those emails and (6) no emails were produced from a former Commissioner.
Noting that a public office has an obligation to maintain emails which are public records and that deleting such e-mails is a violation of that obligation, the Court's opinion considered 5 factors for determining when a public office has a duty under Ohio's Public Records Act, RC 149.43, to recover deleted emails. First, it must be determined whether the e-mails have been destroyed. The Court held that mere deletion does not necessarily destroy emails, and that as long as the e-mails are on the hard drives they do not lose their status as public records.
Second, the requester must make a prima facie showing that the e-mails were deleted in violation of the public office's records retention policy. The Court held that the non-production of which the Toledo Blade complained met this requirement because it created a reasonable inference that e-mails had been destroyed as it defied logic that all e-mails during the periods of non-production lacked sufficient administrative, fiscal, legal or historic value to be preserved. The County retention schedule permitted deletion of e-mails which did not have any such value. In addition, the Court held that any retention policy which allowed individuals to decide to delete work-related emails was unreasonable.
Third, there must be some evidence that recovery may be successful. On this factor, the Court accepted an affidavit from the Toledo Blade's expert that deleted e-mails are frequently recoverable.
Fourth, the Court held that the mere fact that recovery of the e-mails will be expensive does not bar the Court from ordering the recovery effort. In support of its conclusion, the Court relied upon the long-held proposition that no pleading of too much time, too much expense or too much interference with normal operations will permit evasion of public record responsibilities.
Finally, the Court decided that the County Commissioners should bear the costs of the forensic analysis of the computers because the Toledo Blade asked to inspect the e-mails instead of asking for copies of them. Previous cases have held that the right of inspection may not be conditioned upon payment. The Court recognized that the costs of forensic discovery are sometimes borne by the requesting party in litigation under the Rules of Civil Procedure but decided that a balance of policy considerations in this case favored placing the cost on the County Commissioners.
In conclusion, the Court held that the County's "recovery efforts need only be reasonable, not Herculean, consistent with a public office's general duties under the Public Records Act." Unfortunately, the Court offered no guidance on how to draw that distinction. The Court also held that it would not order the County Commissioners to pay the Toledo Blade's attorneys' fees because the Commissioners had taken a rational position on a novel question of law. Plus, the case pre-dated the tighter standards imposed by the September 29, 2007 amendments to the Public Records Act.
The Court repeatedly made the point that its decision was founded on the apparent admission by the County Commissioners that they had violated the County retention policy. In fact, the Court expressly stated that "we emphasize that in cases in which public records, including e-mails, are properly disposed of in accordance with a duly-adopted records-retention policy, there is no entitlement to these records under the Public Records Act." The problem is that Seneca County did have a records-retention policy. The Court did not like one aspect of that policy, the ability of an individual to decide that an e-mail had no administrative, fiscal legal or historic value and to dispose of it. Based on this ruling, no electronic record or scrap of paper can be safely thrown away by any public official or employee except in accordance with a formal disposal process which includes the Ohio Historical Society and the State Auditor in accordance with the applicable sections of RC 149.33 to 149.42.
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