Kish v. Akron, No. 2004-0738.

CourtUnited States State Supreme Court of Ohio
Writing for the CourtO'Connor
Citation846 N.E.2d 811,2006 Ohio 1244,109 Ohio St.3d 162
PartiesKISH et al. v. CITY OF AKRON.
Decision Date20 March 2006
Docket NumberNo. 2004-0738.

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846 N.E.2d 811
109 Ohio St.3d 162
2006-Ohio-1244
KISH et al.
v.
CITY OF AKRON.
No. 2004-0738.
Supreme Court of Ohio.
Submitted February 15, 2005.
Decided March 20, 2006.

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COPYRIGHT MATERIAL OMITTED

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Max Rothal, Akron Law Director, and Bruce H. Christensen Jr. and Deborah M. Forfia. Assistant Law Directors; and Brennan, Manna & Diamond and John N. Childs. for petitioner.

Wegman Hessler & Vanderburg, Jennifer A. Corso, David R. Knowles, and Christopher A. Holecek; and Warner Mendenhall, for respondents.

John Gotherman, Barry M. Byron, and Stephen L. Byron, for amicus curiae, Ohio Municipal League, in support of petitioner.

Gittes & Schulte and Frederick M. Gittes; Thompson & Bishop and Christy B. Bishop, for amici curiae, Ohio Civil Rights Coalition, Ohio NOW Legal Defense and Education Fund, Committee Against Sexual Harassment, and Ohio Employment Lawyers Association, in support of respondents.

Baker & Hostetler, L.L.P., and David Marburger, for amici curiae, Ohio Newspaper Association and Ohio Coalition for Open Government, in support of respondents.

O'CONNOR, J.


{¶ 1} Pursuant to S.Ct.Prac.R. XVIII(6), we accepted these questions of state law certified by the United States Court of Appeals for the Sixth Circuit: "What constitutes a `record' as that term is used in Ohio Rev.Code § 149.351?"1 Kish v. Akron, 102 Ohio St.3d 1529, 2004-Ohio-3580, 811 N.E.2d 1149, and "What constitutes a `violation' as that term is used in Ohio Rev.Code § 149.351?" Kish v. Akron, 106 Ohio St.3d 1402, 2005-Ohio-3118, 829 N.E.2d 1215.

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{¶ 2} We hold that "record," as used in R.C. 149.351 and defined in R.C. 149.011, may be a single document within a larger file of documents as well as a compilation of documents, and can be any document, regardless of physical form or characteristic, whether in draft, compiled, raw, or refined form, that is created or received or used by a public office or official in the organization, functions, policies, decisions, procedures, operations, or other activities of the office. Having reached that conclusion, we further hold that "violation," as that term is used in R.C. 149.351(B), means any attempted or actual removal, mutilation, destruction, or transfer of or damage to a public record that is not permitted by law.

Facts and Procedural History

{¶ 3} The Sixth Circuit provides the following statement of facts, upon which we rely. Respondents, Elizabeth Kish and Victoria Elder, were employed as administrative personnel by the petitioner, the city of Akron, Ohio, in its Plans and Permits Division ("the division"). George Jumbert managed the division.

{¶ 4} Respondents were members of the Civil Service Personnel Association, Inc. ("the union"). Pursuant to an Akron ordinance and the collective-bargaining agreement between Akron and the union, respondents were entitled to compensation at a rate of time-and-a-half for overtime work. The division also had an informal compensatory-time ("comp-time") policy that was not authorized by Akron or the union. The division's comp-time policy allowed flexible time off on an hour-for-hour basis for overtime work that an employee performed.

{¶ 5} Employees recorded the comp time they accrued and used on forms provided by the division and then submitted the forms to designated division employees, including Elder. Unlike other payroll-related records, which were reported to Akron's Finance Division, Jumbert's division stored and oversaw comp-time records, which included the comp-time sheets and a black book containing the tally of comp time for each employee.

{¶ 6} Kish questioned Jumbert about the comp-time policy and, eventually, brought a grievance about it. After the union president sent a letter to Jumbert indicating that Kish intended to pursue a complaint with labor authorities over the policy, the petitioner discontinued it, informing division employees that henceforth, they were to work their shifts according to the terms mandated in the collective-bargaining agreement. Akron also informed the union's president that the city would not reimburse employees for unused comp time.

{¶ 7} Meanwhile, Kish transferred to another city department, and Elder resigned. Another Akron employee, Cristen Stevens, assumed Elder's duties, including those related to the management of the division's comp-time records. Stevens destroyed the documents after the termination of the program.

{¶ 8} Respondents sued petitioner and Jumbert in federal court, seeking compensation for their unused comp time. They alleged, and Akron denied, that the comp-time records were destroyed deliberately in an effort to impede their claims.

{¶ 9} A jury found in respondents' favor on the claims for violations of the federal Fair Labor Standard Act ("FLSA") and Ohio's public-records-retention law and for spoliation of evidence. On the FLSA claim for unpaid overtime, the jury awarded Kish and Elder $493.35 and $414.98, respectively. As the Sixth Circuit Court of Appeals described the verdict on the records claim, "The jury found that Kish and Elder had established the destruction

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of 480 and 380 records respectively in violation of Ohio Rev.Code § 149.351. Because the statute authorizes damages in the amount of one thousand dollars `for each violation,' Ohio Rev.Code § 149.351(B)(2), the jury assessed damages in the amount of $480,000 to Kish and $380,000 to Elder." The jury also awarded $500 in actual damages to each respondent for spoliation. Citing an impermissible double recovery, the trial court partially granted petitioner's motion for remittitur.

{¶ 10} Both parties appealed, presenting a disagreement over the number of records destroyed. In addressing the dispute, the Sixth Circuit, acting sua sponte, framed the issues presented to us: "What constitutes a `record' as that term is used in Ohio Rev.Code § 149.351?" and "What constitutes a `violation' as that term is used in Ohio Rev.Code § 149.351?"

{¶ 11} In answering the first question, Akron urges us to focus on the function of the documents rather than on their form. It contends that not every individual comp-time sheet is a record pursuant to R.C. 149.011(G). Rather, it argues that only the two files of compiled comp-time sheets relevant to Kish and Elder and the tally book are records and, thus, that only three records were destroyed in this case. As Akron poses it, although "each page of that record formed a part of the record, each separate page is not a separate public record. The `record' here is the compensatory time file, as compensatory time could not have been determined from review of a single piece of paper from that file." (Emphasis added.) Petitioner continues, "In this case the compensatory time sheets and documents located in the compensatory time file for each employee should comprise one compensatory time record, the destruction of which is one violation."

{¶ 12} Respondents counter that each form submitted by respondents constitutes a record. They assert that each time sheet had value to Akron and documented the accrual or use of comp time (and other time off) on any given day. Respondents argue that because "records" includes "any document" (emphasis added), R.C. 149.011(G), the certified question is answered by referring to the statutory definition. That definition, they assert, mandates a finding that each comp-time form is a record.

{¶ 13} Similarly, there is debate as to the number of "violations" that occurred here. Akron contends, variously, that there was one violation, or maybe two or three, because there was but one record, or maybe two or three. Akron first seems to link the question of a violation to the number of records destroyed; somewhat inconsistently, it later argues that the question of the number of violations turns on the number of acts or "transactions" of destruction rather than on the number of documents destroyed. Not surprisingly, respondents' view of "violation" focuses narrowly on the number of documents destroyed rather than on the manner in which they were destroyed.

Analysis

{¶ 14} In answering these questions related to statutory definitions within Ohio's records laws,2 we first "must look at the purpose and meaning behind keeping records." White v. Clinton Cty. Bd. of

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Commrs. (1996), 76 Ohio St.3d 416, 419, 667 N.E.2d 1223.

{¶ 15} "In a democratic nation * * * it is not difficult to understand the societal interest in keeping governmental records open." State ex rel. Natl. Broadcasting Co., Inc. v. Cleveland (1988), 38 Ohio St.3d 79, 81, 526 N.E.2d 786. A fundamental premise of American democratic theory is that government exists to serve the people. In order to ensure that government performs effectively and properly, it is essential that the public be informed and therefore able to scrutinize the government's work and decisions. See, e.g., Barr v. Matteo (1959), 360 U.S. 564, 577, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (Black, J., concurring); Moyer, Interpreting Ohio's Sunshine Laws: A Judicial Perspective (2003), 59 N.Y.U.Ann.Surv.Am.L. 247, fn.1, citing letter to W.T. Barry (Aug. 4, 1822), in 9 The Writings of James Madison 103 (Hunt Ed.1910) 103. As Thomas Jefferson wrote, "`The way to prevent [errors of] the people is to give them full information of their affairs thro' the channel of the public papers, and to contrive that those papers should penetrate the whole mass of the people. The basis of our governments being the opinion of the people, the very first object should be to keep that right * * *.'" Id., quoting letter to Edward Carrington (Jan. 16, 1787), in 11 The Papers of Thomas Jefferson (Boyd Ed.1955) 49.

{¶ 16} Public records are one portal through which the people observe their government, ensuring its accountability, integrity, and equity while minimizing sovereign mischief and malfeasance. See, e.g., State ex rel. Gannett Satellite Information Network, Inc. v. Petro (1997), 80 Ohio St.3d 261, 264,...

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    • United States
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    • October 22, 2018
    ...(1997), 78 Ohio St.3d 400, 404, 1997 Ohio 206, 678 N.E.2d 557, citing White, 76 Ohio St.3d at 419, 667 N.E.2d 1223.Kish v. Akron, 109 Ohio St.3d 162, 2006-Ohio-1244, 846 N.E.2d 811, ¶ 26. See generally Cwynar v. Jackson Twp. Bd. of Trs., 178 Ohio App.3d 345, 2008-Ohio-5011, 897 N.E.2d 1181,......
  • State ex rel. Dann v. Taft, No. 2005-1222.
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    • April 13, 2006
    ...Act, R.C. 149.43, is a statutory acknowledgement of Ohio's tradition of open government. As this court just stated in Kish v. Akron, 109 Ohio St.3d 162, 2006-Ohio-1244, 846 N.E.2d 811, ¶ {¶ 103} "[O]ur founders rejected the English common law and property theories that curtailed citizens' a......
  • State ex rel. Cincinnati Enquirer v. Pike Cnty. Coroner's Office, Nos. 2016–1115
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    ...by law." State ex rel. The Miami Student v. Miami Univ. (1997), 79 Ohio St.3d 168, 172, 680 N.E.2d 956.(Ellipsis sic.) Kish v. Akron , 109 Ohio St.3d 162, 2006-Ohio-1244, 846 N.E.2d 811, ¶ 16.{¶ 54} Thus, we wholeheartedly agree with the first dissenting opinion as to the importance of the ......
  • State ex rel. Parisi v. Dayton Bar Ass'n Certified Grievance Comm., No. 2018-0140
    • United States
    • United States State Supreme Court of Ohio
    • December 17, 2019
    ...open access to government papers is an integral entitlement of the people, to be preserved with vigilance and vigor," Kish v. Akron , 109 Ohio St.3d 162, 2006-Ohio-1244, 846 N.E.2d 811, ¶ 17.{¶ 38} R.C. 149.43(B)(1) requires a public office to make copies of public records available to any ......
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68 cases
  • Narciso v. Powell Police Dep't, Case No. 2018-01195PQ
    • United States
    • Court of Claims of Ohio
    • October 22, 2018
    ...(1997), 78 Ohio St.3d 400, 404, 1997 Ohio 206, 678 N.E.2d 557, citing White, 76 Ohio St.3d at 419, 667 N.E.2d 1223.Kish v. Akron, 109 Ohio St.3d 162, 2006-Ohio-1244, 846 N.E.2d 811, ¶ 26. See generally Cwynar v. Jackson Twp. Bd. of Trs., 178 Ohio App.3d 345, 2008-Ohio-5011, 897 N.E.2d 1181,......
  • State ex rel. Dann v. Taft, No. 2005-1222.
    • United States
    • United States State Supreme Court of Ohio
    • April 13, 2006
    ...Act, R.C. 149.43, is a statutory acknowledgement of Ohio's tradition of open government. As this court just stated in Kish v. Akron, 109 Ohio St.3d 162, 2006-Ohio-1244, 846 N.E.2d 811, ¶ {¶ 103} "[O]ur founders rejected the English common law and property theories that curtailed citizens' a......
  • State ex rel. Cincinnati Enquirer v. Pike Cnty. Coroner's Office, Nos. 2016–1115
    • United States
    • United States State Supreme Court of Ohio
    • December 14, 2017
    ...by law." State ex rel. The Miami Student v. Miami Univ. (1997), 79 Ohio St.3d 168, 172, 680 N.E.2d 956.(Ellipsis sic.) Kish v. Akron , 109 Ohio St.3d 162, 2006-Ohio-1244, 846 N.E.2d 811, ¶ 16.{¶ 54} Thus, we wholeheartedly agree with the first dissenting opinion as to the importance of the ......
  • State ex rel. Parisi v. Dayton Bar Ass'n Certified Grievance Comm., No. 2018-0140
    • United States
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    • December 17, 2019
    ...open access to government papers is an integral entitlement of the people, to be preserved with vigilance and vigor," Kish v. Akron , 109 Ohio St.3d 162, 2006-Ohio-1244, 846 N.E.2d 811, ¶ 17.{¶ 38} R.C. 149.43(B)(1) requires a public office to make copies of public records available to any ......
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