Public Employers Must Use Reasonable Efforts To Recover Improperly Deleted E-mails
*By George S. Crisci, Esq.*

In State, ex rel. Toledo Blade Co. v. Seneca County Board of Commissioners, 2008-Ohio-6253 (Dec. 9, 2008), the Ohio Supreme Court addressed what it called a “novel public records claim:” a request to recover and inspect improperly-deleted e-mails. The Court held that the public body had to “make reasonable efforts to recover, at its expense, the requested deleted e-mails and to make them promptly available for inspection.” The Court added, however, that the public body did not have to recover e-mails properly deleted under Ohio’s Public Records Act and the public body’s records retention policy.

In this case, a newspaper made a public records request for all e-mails among County Commissioners. The newspaper suspected that the Commissioners had conducted improper private discussions and deliberations on approving a plan via e-mail communications.

In its response, the public body did not produce any e-mails from one Commissioner for a critical seven-month period, did not produce any e-mails from the inbox or sent-messages folder from another Commissioner (who admitted that he only had begun saving e-mails involving County business), did not provide any e-mails for an entire year from a third Commissioner and provided e-mails from a fourth Commissioner for which there were “substantial gaps” between the dates of e-mails. The public body later found and offered to provide additional e-mails that it discovered in a previously unknown hidden archive on one Commissioner’s computer. The public body also explained its methods for retrieving e-mails from the computers’ hard drives and indicated that retrieval of deleted e-mails would require “very expensive forensic tools.”

The County’s records retention and disposition schedule required that it retain e-mails having a “significant administrative, fiscal, legal, or historic value.” However, the policy permitted the deletion of e-mails that had no such value. The policy granted the discretion to the individual computer user.

Dissatisfied with the public body’s response, the newspaper filed a mandamus action before the Ohio Supreme Court. The newspaper demanded: (1) responsive public records available to [the public body] promptly and without delay and to do so at all time for future requests, (2) take the necessary steps to recover the content of all requested records that has been deleted and report on the steps taken, and (3) make each of the recovered e-mails promptly available for inspection and copying.”

The Court granted some of the newspaper’s demands and held that the public body had to take reasonable steps to recover, at its own expense, unlawfully deleted e-mails. The Court articulated the following “appropriate factors for determining when a public office has a duty . . . to recover the content of deleted e-mails and provide access to them:”

(1) Were the deleted e-mails destroyed?
Although acknowledging that “[t]here is no duty ... to create records that no longer exist,” the Court noted that “the mere deletion of some of the e-mails by the commissioners did not necessarily destroy them.” Rather, [a]s long as these e-mails are on the hard drives of the commissioners’ computers, they do not lose their status as public records.”

(2) Were the e-mails deleted in violation of the County’s records retention and disposition policy?
The Court held that newspaper had to make a prima facie showing of a violation, which the newspaper satisfied. The “substantial gaps in the responsive e-mails . . . . raise the reasonable inference that the e-mails were deleted in violation of the county’s records retention and disposition schedule; it defies logic that all public-office e-mail during these lengthy periods lacked significant administrative, fiscal, legal or historic value.” The Commissioners failed to submit any affidavits specifying that the deleted e-mails did not meet the retention requirements. The public body unsuccessfully argued that no violation occurred because the policy left it up to the individual computer user to determine whether to save an e-mail. The Court held that a construction of the Public Records Act “that vests individual government employees with unreviewable authority to delete work-related e-mails is unreasonable because it would authorize the unfettered destruction of public records.” The Court also rejected the public body’s remaining argument –that the newspaper already received identical copies of the deleted e-mails.

(3) Is there evidence that recovery of the deleted e-mails may be successful?
The newspaper “introduced sufficient evidence [primarily through an affidavit of a computer expert] that recovery of the deleted e-mails may be successful. That is all that is required here, when the evidence raises the inference that the commissioners deleted e-mails in contravention of an applicable records retention and disposition schedule.”

(4) The Court may order that the public body attempt recovery even if the cost of recovery services may be expensive.
The Court reiterated long-standing precedent that complaints of too much time, expense or disruption are not excuses “to evade the public’s right to inspect and obtain a copy of the public records within a reasonable time.” The Court noted that “insofar as the e-mails still exist on the commissioners’ computers, they remain public records, and the board has a duty to organize and maintain them in a manner in which they can be made available for inspection and copying.” Finally, the public body failed to support its claim of a potential expenditure of “tens of thousands of dollars.”

(5) Who should bear the expense of a forensic analysis?
The Court first rejected the argument that the newspaper should bear the cost as a copying cost, because the newspaper asked only to “inspect” the e-mails and did not ask for copies. The Court then conducted a balancing test to determine who should bear the cost, concluding that “the factors that support having the board bear the expense of the forensic analysis to recover the deleted e-mails outweigh the speculative factors that support having the Blade absorb the cost.” The Court added, however, that “the board’s recovery efforts need only be reasonable, not Herculean, consistent with a public office’s general duties under the Public Records Act.”

The Court stressed, however, that its ruling applied only to unlawfully deleted e-mails. “[W]e 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.” As further consolation, the public body did not have to pay the newspaper’s attorneys’ fees because “[o]n the novel issue of the recovery of deleted e-mails, the board’s argument was not unreasonable.”

This decision reinforces what public bodies already should do: (1) have a records retention and disposition policy that includes the retention of electronic data; (2) ensure that all officials and employees are aware of, and comply with, the records retention and disposition policy; and (3) understand that record retention and disposition policies also apply to e-mails. Future violations could have serious financial consequences for the public body, not only for the cost of a forensic recovery of deleted e-mails, but the potential civil fines from unlawfully destroying public records and engaging in spoliation of evidence.

*George S. Crisci is an OSBA Certified Specialist in Labor and Employment Law and has extensive experience in all aspects of public sector labor, employment and public records issues. For more information about public records, please contact George at 216.696.4441 or gsc@zrlaw.com.

This newsletter is not intended as a substitute for professional legal advice and its receipt does not constitute an attorney-client relationship. If you have any questions concerning any of these articles or any other employment law issues, please contact Stephen S. Zashin at 216.696.4441.
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