Ohio court weighs greed vs. public right to know

[April 21, 2011]  COLUMBUS, Ohio (AP) -- A citizen activist says he was wronged by the failure of a small Ohio city to give him 20 years of 911 tapes he sought, which were long ago recorded over. The city says he can prove no harm and that he didn't even want the tapes -- he wanted the thousands in penalty dollars for requesting records that no longer exist.

Attorneys for both sides argued Wednesday before the Ohio Supreme Court, disagreeing on whether Timothy Rhodes was "aggrieved" by the failure of the city of New Philadelphia to retain the thousands of daily tapes he requested in 2007.

If the court decides in his favor, Rhodes and plaintiffs in about half a dozen similar suits around Ohio could collect big -- and, their lawyers say, they will also have scored a big victory for government transparency.

Rhodes' attorney Craig Conley argued it is wrong to paint his client as a money grubber, after Chief Justice Maureen O'Connor asked whether only one party could "cash in" under the law as he read it.

"First of all, I don't agree with ... 'cash in.' The case law is clear: This is not compensation to the requesting party, this is a penalty designed to punish and deter," he said. "And without it, the right of access without a remedy is a meaningless right."

New Philadelphia attorney John McLandrich argued a decision in Rhodes' favor would "set off a gold rush" of citizens seeking records they know are no longer available. He said a person doesn't need a pure motive for wanting to look at the records, but they have to have some kind of motive.

"It doesn't matter why you want it, you just have to really want it," he said, calling that a low bar most people who seek public records can easily meet.

Rhodes initially sought $4.9 million in penalties, $1,000 a day for every one of the 4,968 days of records that were destroyed, court documents indicate. A lower court calculated New Philadelphia's penalty at $84,000 for taping over its 911 recordings from 1975 to 1995, money that would go to Rhodes if he wins.

Other communities -- including Canfield, Willard and East Liverpool -- are embroiled in similar court battles worth millions of dollars in combined penalties.

Rhodes' motivation for seeking the records is the heart of the legal question.

"Every city in the state of Ohio recycles these tapes just like the city of New Philadelphia did," McLandrich said ahead Wednesday's proceeding. "The fact of the matter is they knew they (the tapes) weren't there and that's why they wanted them. So he wrote to enough cities until he found one that didn't have a records retention policy on file, and that's the one he asked."

Another of Rhodes' attorneys, William Walker, said in an interview that his client belonged to a coalition that was positioning for a fight against a sales tax hike in Stark County that was going to fund a countywide 911 emergency center. As Walker tells it, a mathematician helping with the project wanted to do a statistical analysis of 911 systems in hopes of showing they weren't effective, so Rhodes sought out municipalities similar in size to Massillon and other Stark County cities. That's how he wound up in New Philadelphia.

"This 911 center was something brand new and they were going to try to fund it with a sales tax," Walker said. "The group was trying to oppose funding."

Walker said New Philadelphia was simply negligent. He said state law required the city to put a records retention policy in place and to inform the Ohio Historical Society when it was planning to destroy records. It did neither.

The city's open records commission met only once, he said, at a bar in downtown New Philadelphia.

McLandrich doesn't believe Walker's account.

"I absolutely think it's made up," he said. "I don't believe that's what they were doing, and the jury didn't believe it either."

The jury he's referring to decided in New Philadelphia's favor after learning about Rhodes' approach for requesting the records. Rhodes wrote a letter asking if the city had a records retention policy, noting that, if it didn't, he wanted the old records. In 2007, the year the request was made, the most recent records he was seeking were already 12 years old.

"What they're trying to do is make this about the requester, Tim Rhodes, like he's a bad guy or something," Walker said. "He got flustered on the stand (during the jury trial), he didn't say clearly why he wanted them (the tapes), he was a novice. But what's it matter why he wanted them? These are our records, the public's records, to do with what we want."

Walker said too much is being made of the money. He said cities have insurance to cover such penalties, called civil forfeitures, so losing the case will cost taxpayers nothing.

The ruling is so anxiously watched around the state that William has named it after one of the Seven Wonders of the Ancient World.

"We've started referring to it as 'The Colossus of Rhodes' because everybody's waiting for it," he said.

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[Associated Press; By JULIE CARR SMYTH]

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