Labor and Employment Alert; Two Ohio Supreme Court Opinions Underscore Public Records Access

    View Authors March 2006
    In two separate decisions this month, the Ohio Supreme Court has demonstrated the continuing, and perhaps increasing, focus on access to public records. In Kish v. Akron, the court held in a 4-3 decision that, for purposes of determining violations and penalties under the Public Records Act, a record may be a single document within a larger compilation of documents. The ruling is likely to cost the city of Akron $860,000 for destroying records documenting time off for two clerical employees.

    As part of an informal system for awarding time in lieu of overtime pay, the two employees used time sheets to record their earned time off. However, when the city ended the practice of awarding time in lieu of overtime pay, another employee destroyed the records.

    On appeal of a jury verdict for the employees on their overtime claim and a civil forfeiture award of $860,000, the US Court of Appeals for the Sixth Circuit certified two questions to the Ohio Supreme Court: what constitutes "a record" and what constitutes "a violation" under the state's public records retention law. The city argued that only three records were destroyed – the two files containing records of the compiled compensatory time off and a tally book.

    Noting the breadth of the public records law, the court declined to find that individual time sheets were merely component parts of a single, larger "record." Rather, the court held that each of the 860 individual time sheets was a record under the law, and the city therefore must pay the statutorily provided $1,000 fine for each of the time sheets.

    While acknowledging that the broad definition of the terms "record" and "violation" may raise the potential of financial peril for public bodies, Justice Maureen O'Connor's opinion for the majority expressed the hope that the "destruction of hundreds of documents that were mandated by law to be preserved ... is rare in government operations." However, a dissent written by Justice Judith Ann Lanzinger notes that the result of the decision could spell "catastrophic financial consequences for municipalities, townships and agencies."

    In State ex rel. Cincinnati Enquirer v. Daniels, the court determined that the Health Insurance Portability and Accountability Act (HIPAA) does not preclude the disclosure of a record required to be disclosed under the Public Records Act.

    The Cincinnati Enquirer made a public records request to the Cincinnati Health Department for lead contamination notices issued to property owners of residences with children whose blood tests indicated elevated lead levels. The Public Records Act requires disclosure of records "unless such disclosure is otherwise prohibited by law." According to HIPAA, disclosure of protected health information is "permissible to the extent that such disclosure is required by law." Resolving this circular reference, the court determined that Congress did not intend to preempt "the access to information considered important enough by state or federal authorities to require its disclosure by law" and held that the records in question must be disclosed.

    When faced with a public records request, a public entity "need only determine whether the requested disclosure is required by Ohio law to avoid violating HIPAA's privacy rule." This decision is the latest of several by the court to address how public bodies should resolve the sometimes competing obligations to disclose information under the Public Records Act (and, as demonstrated in the Akron case, at significant financial peril if they fail to do so) and the obligation to keep certain employee information private. Public employers should consult with their legal counsel to navigate this particularly treacherous area of the public records law.