Ohio court weighs greed vs. right to know

Associated Press

COLUMBUS

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.