Doug Hunter,
Plaintiff-Appellant,
V.
IN THE SUPREME COURT OF OHIO
Case No.
Ohio Bureau of Workers' Compensationc/o Ohio Attorney General,
Defendant-Appellee.
On Appeal from the FranklinCounty Court of Appeals,Tenth Appellate District
PLAINTIFF-APPELLANT DOUG HUNTER'SMEMORANDUM IN SUPPORT OF JURSIDICTION
Dianne D. Einstein (0067779)Einstein Law, LLC615 Copeland Mill Road, Suite 1 HWesterville, OH 43081614/734-0000614/734-0001 - Faxdiannegeinsteinlawoffice.coin
AttoNney. for Plainti f=Appellant Doug Hunter
Michael DeWine (0009181)Ohio Attorney General
Cheryl J. Nester (0013264)Lydia M. Arko (0085597)Assistant Attorneys GeneralWorkers' Compensation Section150 East Gay Street, 22"d FloorCohunbus, OH 43215614/466-6696877/506-0283 - Faxcheryl.nestera^.,ohioattorney e neral.govlydia.arkoCipohioattorneyge.-neral. ov
Attorneys for l)ef'endant Appellee Ohio Bureau of TJTorkers' Compensation
•"^.^:^^ ^,^:r." :.^,.„
ii..; E'`^ ^^F" '`Y ss.: ia^ ?s-.e^s ^^n'#.{ 4fty,: i^^£Ja s fi^3 J o"3 ;" 's '" ,e, s^
^tr-,ws f.. ,,^ t^ :, s ^"s'"
Court of Appeals Case No.13AP-457
TABLE OF CONTENTS
Table of Authorities
This Case is a Case of Public or Great General Interest to Ohioans
Statement of the Case and Facts
Argttment
Appellant's Proposition of Law No. 1:
iii
3
9
A state agency that fails to maintain a former supervisor's public recordsin accordance to its seven-year records retention policy is liable forforfeiture to an Ohioan who requested the records that are gone. 9
Appellant's Proposition of Law No. 2:
In forfeiture cases, once a state agency admits it failed to maintain publicrecords requested by an Ohioan in violation of its seven-year recordsretention schedule, it is liable under O.R.C. 149.351(A). Whether thestate agency offers different records to re-create the destroyed ones andwhether the requestor of the public records follows up with the agencyto request other records is irrelevant since the records originally requestedare gone.
Appellant's Proposition of Law No. 3:
11
The Court of Appeals cannot reverse the trial court's ruling that thehandwritten transcripts from the investigatory interviews of Hunter,Roach and Hasty were public records because that issue was not on appeal.The trial court held that those records were public records, and the BWCfailed to cross appeal. 13
Appellant's Proposition of Law No. 4:
A state agency cannot avoid penalties in R.C. 149.351(A) byintentionally misclassifying public records that had been destroyedas "transient" or "personal notes" to justify the wrongful destructionof said public records. 13
Conclusion 15
TABLE OF AUTHORITIES
Cases
Kish v. Akron, 109 Ohio St.3d 162, 2006-Ohio-1244, 846 N.E.2d 1208 2
Rhodes v. City ofNew Philadelphia, 129 Ohio St.3d 304, 2011-Ohio-3279, 9
951 I4T.E.2d 782
Steffen v. Kraf't, 67 Ohio St.3d 439, 1992-Ohio-32, 619 N.E.2d 688 15
Verhovec v. The City ofMarietta, 2013-Ohio-5414) 14
YL'hite v. Clinton County Board of Commissioners (1996), 76 Ohio St.3d 416, 2
420, 667 N.E.2d 1223
Zidonis v. Columbus State Community College, 133 Ohio St.3d 122,
2012-Ohio-4228 12
Statutes
Ohio Revised Code Section 149.35
Rules
App. R. 3(C)(1)
1,3,10,11
13
iii
THIS CASE IS A CASE OF PUBLIC OR GREAT GENERAL INTEREST TO OHIOANS
This appeal arises out of rulings that, if permitted to stand, have effectively destroyed the
Ohio public records law, codified in Ohio Revised Code section 149.35(A). Specifically, the
law of the case of Hunter v. Bureau of Workers' Compensation allows any state agency to
destroy public records without a valid records retention schedule to do so and without
consequences. 'That would completely destroy the purpose of the Ohio public records law, which
is to keep state agencies, who work for the people of Ohio, transparent. Consequently, this case
is of great public or general interest to Ohioans and any and all Ohioans who are classified
employees.
In the case suh judiee, Appellant Doug Hunter worked as a classified employee for the
Ohio Bureau of Workers' Compensation (hereinafter referred to as the "BWC") for over twenty
years. Out of retaliation for participating in an investigation of a whistleblower, Hunter was
discharged from his employment. Hunter filed a grievance pertaining to his discharge and made
public records requests for records he needed for his grievance. When the BWC responded to
those requests, it admitted that it failed to maintain some of the records of a former supervisor,
and it actually destroyed other records in violation of its own records retention schedules and the
Ohio public records law. Consequently, Hunter was without those records for his grievance, and
he lost.
Mr. Hunter filed a forfeiture action, and the trial court as well as the court of appeals
misinterpreted the law and ruled in BWC's favor. Those rulings do the following: (1) permit
state agencies, the keeper of the records, to avoid the penalty described in R.C. 149.351 by
offering the requestor alternative records when the state agency destroyed the requested records
in violation of the law; and (2) allows state agencies to manipulate the classification of records it
destroys by improperly identifying the records as personal notes or transient records when they
are not, and using internal policies which do not apply to the requested public records to justify
the destruction of the requested records. If the rulings from the trial court and court of appeals
are allowed to stand, state agencies can circumvent the public records law very easily, making it
completely obsolete.
"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." Kish v. Akron, 109 Ohio St. 3d 162, 2006-Ohio-1244, 846 N.E.2d 1208, ¶ 15.
Having access to public records is one avenue through which the people of Ohio "can observe
their government, ensuring its accountability, integrity, and equity while minimizing sovereign
mischief and malfeasance." Kish at ¶ 16. Public records foster openness and encourage the free
flow of information. Id.
Ohio legislators recognized the importance of keeping the government open to the people
by codifying in Ohio law the people's right to access those records. Such statutes, including, but
not limited to Ohio public records law, codified in Chapter 149, mandate the monitoring of the
creation and preservation of public records by state agencies. Id. at 17. Such laws "reinforce the
understanding that open access to government papers is an integral entitlement of the people, to
be preserved with vigilance and vigor." Id. The public records law in Ohio treats public records
as the people's records and that the state officials who possess those records are merely trustees
for the people. White v. Clinton County Board of'Cosnmissionef°s (1996), 76 Ohio St.3d 416,
420, 667 N.E.2d 1223.
2
Access to public records is necessary for ordinarv citizens of the state of Ohio to evaluate
its government and hold it accountable. Id. If the public has access to government records, it can
see the rationale behind the decisions the state agency makes and challenge or criticize those as
necessary. "The entire process thus allows for greater integrity and prevents ilnportant decisions
from being made behind closed doors." Id.
To ensure the public had access to public records, the Ohio legislature included R.C.
149.351(B)(2), which assesses penalties against state agencies for destroying, mutilating,
removing, transferring or disposing of or damaging public records. The right of access to public
records will be a hollow one if this Court denies jurisdiction and permits the rulings of this case
to stand. Consequently, it is imperative that this Court accept jurisdiction to maintain the
integrity of Ohio's public records law and to protect the rights of Ohioans to an open
government.
STATEMENT OF THE CASE AND FACTS
The evidence presented at trial established the following facts: In August 2005, Hunter
was promoted to the position of Fraud Investigator for the Special Investigators Unit ("SIU")
within the BWC. During the first two (2) years as a Fraud Investigator for the BWC, Mr. Hunter
prosecuted more cases and saved more money than his colleagues in the SIU. As a result, he
received numerous awards and good performance evaluations.
In 2008, Hunter started. investigating claimants who used false social security numbers to
obtain benefits. Hunter's investigation resulted in convictions of individuals for tampering with
government records, identity theft, falsification and forgery. Hunter was very successful in
obtaining these convictions in Butler and Hamilton Counties.
3
On June 17, 2008, the Director of the SIU, Tom Wersell (hereinafter Wersell), met with
Hunter and gave Hunter a direct order to close all of the remaining social security cases and to
stop all investigations on that matter. Kenneth Featherling ("Featherling"), Hunter's supervisor,
filed a complaint against Wersell for giving the order to stop investigating the identity theft
cases. Said complaint alleged that NVersell violated the Ohio Revised Code when he gave direct
orders to stop investigating the use of false social security numbers to collect workers'
compensation benefits. On November 25, 2008, Hunter was interviewed about the complaint by
the BWC. Hunter testified that Wersell violated Ohio law by ordering a stop to the
investigations on the identity theft cases. The next week, Hunter received his first discipline.
From the date Hunter was interviewed about Mr. Featherling's complaint against Wersell
in November 2008 about the identity theft cases, his work environment changed drastically. He
was assigned bad cases, which are cases that are difficult to obtain convictions. As a result of his
supervisors' actions, Hunter's numbers plummeted. He went from the best investigator of SIU
to one of the worst. On July 20, 2010, Hunter was wrongfully terminated from employment for
dishonesty, failure to follow a written evidence policy of the employer, neglect of duty and
failure to perform the duties of position or performance at substandard levels.
After Hunter, who was a classified employee for the BWC, received discipline, he filed
grievances with the union, and he made public records requests of the BWC to obtain evidence
for said grievances. Prior to his termination of employment from the BWC, the BWC conducted
internal investigations of Hunter to deternune whether he violated any of its policies, including,
but not limited to, policies as against divulging confidential information and how to collect
evidence. The BWC suspected that Mr. Hunter divulged confidential information to the media,
4
and it learned that Mr. Hunter may have admitted to divulging said inforrnation to the media
during a poker game he attended.
On January 27, 2010, the BWC conducted an investigatory interview of Hunter under the
threat of disciplinary action and with a Union Steward present. In this interview Hunter was
questioned about alleged statements he made at the poker game about contacting the media to
provide information about the BWC. Hunter denied making said statements.
On or about February 8, 2010, the BWC conducted investigatory interviews of two (2)
BWC employees who had attended the poker game to determine whether Hunter discussed or
divulged BWC business to the media. The interviewers brought typed prepared questions to
each interview. These typed interview questions had been circulated to the SIU managers, Labor
Relations division and Clairns Office Manager prior to the witness interviews. The interviewers
recorded the verbal answers of the witnesses by handwriting their answers on these circulated
typed prepared questions. The interviewers' written and verbal questions involved Hunter's
alleged statements made at the poker party about going to the media about the BWC, one of the
employment issues the BWC was investigating.
On February 25, 2010, Hunter sent an email to Attorney Brad Nielson of the BWC to
make a public records request, pursuant to Ohio Revised Code section 149.43, for "[a]ll
correspondence, notes, allegations or any other written documentation" pertaining to comments
Hunter made at a poker game. In response to his initial request, Norma Scott of the Public
Records Unit for the BWC responded that there were no documents. After receiving said
information, Hunter spoke to Ms. Scott over the phone, provided her additional information and
asked her to check into it again. On March 31, 2010, Ms. Norma Scott indicated that she
checked again with the new information and that there was "[n]o change. No documents exist."
5
On May 12, 2010, Norma Scott of the Public Records Unit sent Hunter an email, and said
email contained an attachment. Her email stated that she had spoken to Brad Nielson of the
BWC, and he informed her that there were copies of the questions and answers from the
investigatory interviews of the BWC employees about the poker party but that he failed to keep
copies. The attachment to that email was an email exchange, indicating that the interviews about
the poker party were a part of the BWC's investigation of Hunter.
On May 18, 2010, Hunter made a request for a legal opinion as to why the public records
had been destroved. In response to that request, Ms. Monique Hall sent Hunter an email, dated
June 29, 2010. In that einail, she clearly admitted that the handwritten records from the
interviews were destroyed as a matter of standard practice. She stated "once it was determined
that there would be no resulting discipline in connection or as a result of the interview, there was
no value in retaining the notes." However, the BWC records retention schedule for employee
discipline and grievance records clearly states that "all record of the measures taken to
prove/disprove an employees (sic.) misconduct which may lead to discipline" must be retained
for seven years. The BWC was destroying public records in violation of its own records
retention policy.
On June 22, 2010, Shawn Fox and Jennifer Saunders of the BWC conducted another
investigatory interview of Doug Hunter. They were interviewing Hunter about alleged violations
of policy pertaining to an investigation he conducted of a claimant who continued to operate a
Karaoke business while collecting workers' compensation. On June 24, 2010, Shawn Fox and
Jennifer Saunders interviewed Beverly Hasty and Rebecca Roach, two other BWC employees
who also participated in the same Karaoke investigation. Their interviews included questions
6
about Hunter and the Karaoke investigation and the alleged violations of the evidence collection
policy.
All of these investigatory interviews were conducted by two (2) supervisors, who
prepared typed questions prior to the interviews and both brought copies of the questions with
them to the interviews. The supervisors recorded the witnesses' answers by writing the answers
directly on the papers containing the questions. Shawn Fox testified at trial and confirmed that
none of the interviews were tape recorded or videotaped so the only records of the answers were
the handwritten ones prepared and created by the BWC supervisors. Jennifer Saunders, Shawn
Fox and Kim Pandalidis, the supervisors who conducted these interviews, testified that after
every interview, the two supervisors who conducted the interviews met and compared (shared)
their hand-written records from the interviews with each other to create a third, type-written
document of the witnesses' testimony and then they destroyed those hand-written records.
On January 3, 2011, Hunter made another public records request of the BWC. In that
request, he asked for all documents containing the list of questions used during his interview on
January 27, 2010, and any documents containing the hand-written record of his answers. He also
asked for the typed questions used and the hand-written recorded answers taken during his
interview on June 22, 2010, that were used to place HuaZter immediately on administrative leave,
and also the records from the interviews of Beverly Hasty and Rebecca Roach on June 24, 2010.
Hunter needed these documents for his arbitration at the end of January 2011, especially since
one of the reasons for his discharge was for dishonesty based on the inconsistencies between his
interview answers and Ms. Hasty's and Ms. Roach's. On January 24, 2011, Monique Hall
responded to his public records request of January 3, 2011. In that response, she admitted that
the hand-written records of the interviews of Hasty, Roach and Hunter were destroyed.
7
®n May 11, 2011, Hunter made a public records request for the discipline records and the
employee/employer grievance records maintained by Mr. Hunter's supervisor, Kenneth
Featherling in his office. Hunter testified at trial that he became aware of these public records
because he had the Records Inventory Worksheet on these records that Ken Featherling
completed on January 10, 2008. The evidence presented at trial was that in late 2007/early 2008,
the BWC conducted an audit of all public records. Every employee was to account for all of
their public records by completing a "Records Inventory Worksheet." According to
Featherling's worksheet, he maintained employee discipline and grievance records in his desk
drawer on January 10, 2008. By including these documents on the worksheet, Featherling was
identifying said documents as public records. On page 2 of the worksheet, Records Manager Jeff
Baker analyzed and confirmed Featherling's worksheet, his designation of the documents as
public records and the retention schedule of seven (7) years. Hunter testified that he used the
actual description word-for-word on that BWC Records Inventory Worksheet to make his public
records request. On June 27, 2011, just four (4) years after the Records Inventory Sheet was
created, Monique Hall stated that the BWC did not maintain copies of those records.
As a result of the BWC's failure to keep all of the records, Hunter filed a forfeiture action
against the BWC. He was damaged because he did not have those records for his grievances.
The case was presented to a Magistrate.
After the bench trial on these issues, the Magistrate issued a decision on January 3, 2013,
against Mr. Hunter. Mr. Hunter objected to many of the factual findings and conclusions of law
made by the Magistrate and requested that the Judge sustain his objections and find in his favor.
On May 14, 2013 the Judge issued a Decision and Entry Adopting Magistrate's Decision and
overruling Plaintiff's/Appellant's Objections. Hunter appealed the decision; however, the BWC
8
did NOT file a cross appeal. The only issues on appeal were as follows: (1) whether the trial
court erred by adopting the Magistrate's decision, which failed to include a ruling on whether the
BWC violated the public records law by failing to maintain a former supervisor's records; (2) the
trial court's conclusion that the BWC responded lawfully because it offered alternative records
(because it had destroyed the records requested) was not supported by the evidence or the law of
the State of Ohio; (3) the trial court erred by adopting the Magistrate's decision that Hunter
should have followed up to get alternative records; (4) the trial court erred by finding that the
poker party records were not public records and were transient; and (5) the trial court erred by
finding that the only records from the investigatory interviews of Appellant, Roach and Hasty
were transient and properly destroyed.
The issue that was NOT on appeal was whether the records from the investigatory
interviews of Appellant, Roach and Hasty were public records because the trial court found that
the same were public records. The Court of Appeals erred by affirming the trial court's decision
against Hunter.
ARGUMENT
APPELLANT'S PROPOSITION OF LAW NO. 1: A state agency that fails tomaintain a former supervisor's public records in accordance to its seven-vearrecords retention policy is liable for forfeiture to an Ohioan who requested therecords that are gone.
To prevent the eircumvention of the Ohio Public Records Act, public offices are strictly
prohibited from destroying or disposing of any of their records, unless permitted by law, or under
the rules adopted by the governing records commission and approved by the Ohio Historical
Society and Ohio auditor of state. Rhodes v. City ofNew Philadelphia, 129 Ohio St. 3d 304,
201 l-Ohio-3279, 951 N.E.2d 7$2, at ¶ 14; R.C. 149.351(A). Ohio Revised Code section
9
149.351(A) specifically states that the records of outgoing officials shall be delivered to
their successors and shall not be destroyed.
The evidence presented at trial was that on May 11, 2011, Hunter made his public records
request for grievance and disciplinary records maintained by Ken Featherling, Hunter's former
supervisor. To make this public records request, Hunter used the description of the records
contained on the BWC's Records Inventory Worksheet, which was created in the year 2008 and
specifically identified the records as public records that must be retained for seven (7) years (or
until the year 2015). In response, Monique Hall sent him an email, stating in pertinent part as
follows:
This communication is in response to your request for all BWC employee disciplinerecords and employee/employer grievance records maintained bv Ken Featherling inhis office at the Governors Hill Service Office.
As you are probably aware, Ken Featherling has not been employed with BWC since2008. BWC does not maintain copies of any discipline or grievance records that wouldhave been separately or independently maintained by Ken Featherling. Disciplineand grievance records are maintained by the BWC Labor Relations Division of theHuman Resources Department and/or the Union. Ifyou would like to requestspecific discipline records, please let me know and I will work with Labor Relations tohave your request expedited. Otherwise, we are unable to fulfill the request assubmitted to us. (emphasis added).
This email is an admission by the BWC that it violated O.R.C. 149.351(A) by failing to
maintain records of a former supervisor. Hall specifically admits that the BWC did not
maintain the records. Second, the email is clear that Hall is making a distinction between
Featherling's records and records maintained by another division within the BWC when she
referred to Featherling's records as separate and independent records that the BWC no
longer possessed. This alone proves Hall offered plaintiff d fferent records from another
division because Featherling's records were destroyed. Despite this evidence, the Magistrate
held the following as it pertained to Mr. Featherling's records:
10
Here, defendant responded to plaintiff's request and indicated that it did not possess therequested records. Defendant's response informed plaintiff of the entity that wouldpossess the records and offered to give him a hand in obtaining the records, but neverheard back from plaintiff. Consequently, it is found this particular records request wasresponded to appropriately and lawfully. See pg. 8 of the Magistrate's Decision, attachedhereto as Appendix Ex. 1.
By this holding, the Magistrate failed to analyze whether the BWC violated O.R.C.
149.351(A) when it failed to maintain Featherling's records. On objection, the trial court failed
to recognize the error and did not address this issue when it adopted the Magistrate's decision.
(See Magistrate's decision p. 8 and trial court's decision, attached hereto as Appendix Exhibits 1
& 2). Additionally, the Court of Appeals also failed to determine whether the BWC was liable
for failing to maintain a former supervisor's records. Both the trial and appellate courts merely
state that the BWC response to Mr. Hunter was appropriate and lawful. The response by the
BWC, however, is irrelevant since the issue is whether the BWC is liable for forfeiture for failing
to maintain a former supervisor's records. It is true that the BWC responded to Hunter properly
when he was told the records he requested were not maintained. However, the destruction of
said records was a violation of O.R.C. 149.351(A). To date, no court has made a determination
as to whether failing to maintain Featherling's records was a violation of the public records law.
Thus, this Court should accept jurisdiction to correct the rulings.
PROPOSITION OF LAW 2: In forfeiture cases, once a state agency admits it failedto maintain public records requested by an Ohioan in violation of its seven-yearrecords retention schedule, it is liable under O.R.C. 149.351(A). Whether the stateagency offers different records and whether the requestor of the public recordsfollows up with the agency to request other records is irrelevant and impossiblesince the records originally requested are gone.
Both the trial and appellate courts held that the BWC's response to Hunter was lawful
and appropriate because Hunter failed to follow up after the BWC admitted it did not maintain
the public records of a former supervisor. The Court of Appeals cited the case of Zidonis v.
11
Columbus State Community College, 133 Ohio St.3d 122, 2012-Ohio-4228, which was a
mandamus case rather than. a forfeiture case, for the proposition that Hunter should have
followed up with the BWC. However, the case sub judice is not analogous to Zidonis. In that
case, the appellant Zidonis requested copies of all emails sent between two employees of the
appellee Columbus State Community College (hereinafter Columbus State). Id. at ¶ 4.
Columbus State responded by infortning the appellant that the request was overly broad and, as a
result, it could not identify the specific records being requested. Id. Columbus State had the
records, but it could not produce the records the appellant wanted because the request was too
broad. Id.. Zidonis never narrowed her requests, and Columbus State did not supply the records.
Id at ¶ 25. Thus, the appellant filed a mandamus action to force Columbus State to provide the
emails. Id. at ¶ 1. Because the appellant did not follow up by narrowing her request, the writ of
mandamus was denied. Id. at ¶ 27.
The case subjudice is much different. Hunter made a public records request for the
grievance and discipline records kept in Ken Featherling's office drawer. He made specific
records request by using the BWC's own Records Inventory worksheet for those public records.
Thus, the trial court correctly held th.at he made a valid public records request. Mag. Dec. at 5-8.
The BWC responded to Hunter that it failed to maintain the discipline and grievance records kept
by Featherling that Hunter requested. By that response, the BWC easily identified the records
requested by Hunter and said the same were gone. Consequently, the BWC did not inform Mr.
Hunter that the request was overly broad because it was not (it was very specific). Because the
BWC failed to maintain those records, it made an offer to Hunter to look for different discipline
and grievance records maintained by others at the BWC. They wanted him to request different
records. Because the public records that Hunter requested were not maintained by the BWC,
12
Hunter could not follow up. The records he wanted were gone. Thus, he filed a forfeiture action
rather than a mandamus one. In forfeiture cases, the BWC is still liable for forfeiture even
though Hunter did not follow up.
PROPOSITION OF LAW 3: The Court of Appeals cannot reverse the trial court'sruling that the handwritten transcripts from the investigatory interviews of Hunter,Roach and Hasty were public records because that issue was not on appeal. Thetrial court held that those records were public records, and the BWC failed to crossappeal.
App. R. 3(C)( l) mandates that "a person who intends to defend a judgment or order
against an appeal taken by an appellant and who also seeks to change the judgment or order
or, in the event the judgment or order may be reversed or modified, an interlocutory ruling
merged into the judgment or order, shall file a notice of cross appeal within the time allowed
by App.R. 4." App.R. 3(C)(1). The trial court held as follows as it pertained to the handwritten
transcripts taken during the investigatory interviews of Hunter, Roach and Hasty:
The interviewers' notes were actually more than an interviewers' written notationsintended to be used by her to subsequently refresh her recollection. The notations madeby the interviewers were abbreviated recordation of oral responses given by theinterviewees to a series of well-defined specific questions whose purpose was to discoverthe `when, where, why and how' of the interviewees' knowledge of the subject matter ofthe investigation. It appears in format they were different from what would be used by aperson taking notes during a preliminary investigatory conversation that typically wouldbe less restricted and more spontaneous in format. Mag. Dec. 5. (emphasis added).
Appellee did not file a cross appeal in this matter on the issue of whether the handwritten
transcripts from the investigatory interviews of Roach, Hunter and Hasty were public records.
Therefore, the Appellate Court should not have reversed the trial court's ruling that those records
were public records because that issue was not before it. Thus, this Court should accept
jurisdiction and correct the error.
PROPOSITION OF LAW 4: A state agency cannot avoid penalties in R.C.149.351(A) by intentionally misclassifying public records that had been destroyed as"transient" or "personal notes" to justify the wrongful destruction of said publicrecords.
13
The BWC admitted that it destroyed all handwritten transcripts for all interviews of
witnesses during investigations against Hunter for statements made at a poker party and the
Karaoke case investigation. In an attempt to avoid being liable for forfeiture, the BWC argued
that these records were transient. According to the BWC policy, transient records are records
such as post-it notes and telephone messages and can be destroyed once the same lose
administrative value. In other words, that record retention schedule permits destruction of
records much faster (almost immediately) than most other retention schedules. Certainly, the
only handwritten transcripts from investigatory interviews are not similar to post-it notes and
phone messages. Instead, those public records were intentionally misclassified in order to justify
the wrongful destruction and to avoid the penalties owed to Hunter. For some unknown reason,
the trial and appellate court believed in the BWC's ridiculous arguments that these records were
transient. Certainly, if this Court permits this ruling to stand, state agencies can easily destroy
records by sin7ply misclassifying the same.
The BWC also argued that the only handwritten transcripts for these investigatory
interviews were personal notes and thus not public records. As stated above, the trial court
correctly held that the handwritten transcripts for the Karaoke case investigation were not notes .
That ruling is supported by the Fourth District Court of Appeals case Verhovec v. The City of
iVlarietta, 2013-Ohio-5414 (holding that the handwritten notes that were taken by the Clerk of
Council during each council meeting used later by the Clerk to prepare the official typed minutes
were public records and NOT personal notes). The appellate court in Hunter; however,
wrongfully found that all handwritten transcripts from the investigatory interviews were personal
notes and not public records due to the fact that two BWC employees verbally communicated to
each other the content of the records rather than actually looking at the record. First, that is not
14
supported by the evidence at trial, which was that the BWC employees shared their handAlritten
transcripts to create a typed version later. Second, according to Ohio case law, personal notes,
which are not public records, are those kept for the individual's own convenience and are not
used by others later for any ptirpose. Steffen v. Kraft, 67 Ohio St. 3d 439, 1992-Ohio-32, 619
N.E.2d 688, ¶ 2. However, records are not personal notes if the same are later USED or shared
by other state employees. Id. The evidence was undisputed that the handwritten records from the
investigation were either used by the BWC to decide whether to discipline Hunter or used to
create an official, typed transcript. Thus, all handwritten transcripts from the investigation
interviews are not personal notes but public records. Accordingly, this Court should not permit
the BWC to circumvent the public records law by intentionally misclassifying records to justify
the destruction of said records.
CONCLUSION
The current state of the law of Hunter v. BWC has eradicated the Ohio Public Records
law by allowing the BWC to circumvent it by misclassifying public records and by shifting the
burden to Hunter to clearly identi_fy records that have been admittedly destroyed. As such,
Appellant respectfiglly requests that this Court accept jurisdiction of this appeal and restore the
rights of Ohioans to public records.
15
Respectfully submitted,
Dianne D. Einstein (0067779)EINSTEIN LAW, LLC615 Copeland Mill Rd., Suite 1 HWesterville, OH 43081Phone: (614) 734-0000Fax: (614) [email protected] for Plaintiff-.Appellant Doug Ilunter
CERTIFICATE OF SERVICE
I hereby certify that a true copy of the foregoing Memorandum in Support of Jurisdictionwas served upon Cheryl Nester, Attorney for Defendant-Appellee, via email and regular mail,this 6th day of February, 2015.
Dianne D. Einstein
16
APPENDIX
Exhibit No. Description
2
1-3-2013 Magistrate's Decision Following Bench Trial
12-23-2014 Decision - Court of Appeals
12-23-2014 Judgment Entry - Court of Appeals
17
Franklin County Ohio Clerk of Courts of the Common Pleas- 2013 Jan 03 1:38 PM-10CV018858
IN THE COURT OF COMMON PLEAS OF FRANKLIN COUNTY, OHIOCIVIL DIVISION
DOUG HUNTER,
PLAINTIFF,
vs.
OHIO STATE BUREAU OFWORKERS COMPENSATION,
DEFENDANT.
0][0l[0
^][a
CASE NO. 10CVD12-18858
JUDGE LYNCH
MAGISTRATE McCARTHY
MAGISTRATE'S DECISION FOLLOWING BENCH TRIAL
This matter came on to be heard commencing on September 26, 2012.
Following the presentation of evidence, the parties were granted the opportunity to
present their closing arguments in written form. Extensions of time were granted to
counsel in order to accomplish this task. The matter is now ready for resolution.
This case involves four requests for the production of public records in
recognition of R.C. 149.43. On each occasion, plaintiff made a request of
defendant to produce records that in some way may relate to his employment
termination with defendant on July 20, 2010. Plaintiff seeks damages (civil
forfeiture) for the non-production of the records and money damages for the
alleged spoliation of evidence.
In order for plaintiff to succeed in this case, (1) he must have requested
public records, (2) defendant must have been obligated to honor that request,
subject to certain exceptions in R.C. 149.43(B), (3) defendant must have disposed
of the public records in violation of R.C. 149.351(A), and (4) plaintiff must be
aggrieved by the improper disposal. See, Rhodes v. City of New Philadelphia, 129
Ohio St. 3d 304, 2011 Ohio 3279, 2011 Ohio LEXIS 1785 (2011).
^^
PLAINTIFF'SEXHIBIT
Franklin County Ohio Clerk of Courts of the Common Pieas- 2013 Jan 03 1:38 PM-10CV018858
In order to make the determinations now required to be made, a review of
the background of this action is necessary. The evidence presented at trial reveals
that the origin of the parties' dispute involves information obtained by defendant
that, while at a social gathering (a poker party), plaintiff reportedly violated
defendant`s policy of not discussing with the public media certain agency matters.
Thereafter, defendant undertook to commence an investigation surrounding the
information about the alleged policy violation. That initial inquiry involved, inter alia,
plaintiff being requested to provide an investigatory interview on January 27, 2010.
I
Following the commencement of the inquiry, and in late February 2010,
plaintiff made a records request of defendant in order to obtain records about the
investigation concerning plaintiff's alleged policy violation about communications
that occurred at the mentioned poker party. Plaintiff volunteered that the records
request was made to "defend" himself and to "get them off my back." In response
to the request, defendant related that there was nothing in writing or any
documentation relating to the poker party, although at one time some writings did
exist.
More particularly, Shawn Fox, defendant's special agent fraud investigator
testified that he preliminarily interviewed plaintiff and a few coworkers who were
present at the time of the alleged communication infraction. Following these
conversations, Fox orally reported back to his supervisor to the effect that "we had
nothing to further to go on." And, "that there was no substantiation [of the
suspicions] concerning the inquiry involving alleged statements to a media outlet."
2
Franklin County Ohio Clerk of Courts of the Common Pleas- 2013 Jan 03 1:38 PM-10CV018858
Thereupon, Fox discarded his personal notes from the interviews as well as the
single witness written statement because "they were of no administrative value."
This, testified Fox, was in accordance with an understanding he had with
defendant's labor relations personnel that the records had no value and could be
destroyed because they were "transitory records."
Here, plaintiff contends that because Fox shared the information with Brad
Nielson of the BWC, who presumably used these records to decide not to
discipline plaintiff, the documents thus qualify as public records required to be
maintained by defendant. Further, plaintiff urges the records be found to be public
records because the department of administrative services policy requires records
be maintained if they involve "measures taken to °prove/disprove" an employee's
misconduct which may lead to discipline ..."(Emphasis added.)
Now, a public record is one that serves to document the organization,
functions, policies, decisions, procedures, operations, or other activities of the
office. R.C. 149.011. In this case, it appears it was not the physical documents
that served as a source of reliance for the decision not to proceed further and
open an investigation into a report of plaintiff's alleged wrongful communication
with a media outlet, but rather from the oral report of Shawn Fox to his supervisor,
Brad Nelson, about the result of the interviews that nothing untoward was
discovered. From this oral report, Nelson concluded that there was no
substantiation of the allegation or suspicion and that there was nothing further to
go on. In that framework, it is found the discarded documents were not, as a
matter of fact, used as a base of reliance for the decision not to proceed to
3
Franklin County Ohio Clerk of Courts of the Common Pleas- 2013 Jan 03 1:38 PM-10CV018858
investigate plaintiff's conduct with reference to the contended wrongful
communication. What was relied upon was Fox's oral report to Nelson that nothing
of interest was uncovered. Consequently, it is additionally found that the
mentioned records were not public records and did not have to be treated as such.
Further, even if it is possible to conclude that the records constitute public
records, they were not improperly destroyed. The documents were precursor
writings whose value was of temporary duration. The limited value was rendered
nugatory upon the decision that an investigation not be opened to explore the
subject further. The records were then destroyed in accordance with the retention
schedule (GAR-CM-05) for transient documents.
tl
The next public records request under consideration is the one made by
plaintiff on December 4, 2010. That request was for records of a suspected
request ostensibly made by defendant issued to the Ohio Inspector General that
plaintiff be investigated by that office. In response, defendant stated that it had no
documents that could be responsive to plaintiff's request.
At trial, nothing of recognizable evidentiary value was produced to
challenge defendant's position that such records do not exist. Accordingly, the
magistrate finds that no violation of the public records law occurred with respect to
this particular request.
III
Next, on January 3, 2011, plaintiff requested additional documents. On this
occasion, plaintiff asked for documents containing the questions that were asked
4
Franklin County Ohio Clerk of Courts of the Common Pleas- 2013 Jan 03 1:38 PM-10CV018858
of him and the answers given by him in defendant's interviews with him on
January 27, 2010 and June 22, 2010; and for documents containing questions
that were asked of Beverly Haste and the answers given by her in defendant's
interview with her on June 24, 2010; and for documents containing questions that
were asked of Rebecca Roach and the answers given by her in defendant's
interview with her on June 24, 2010.
Although comprehensive responses were in fact provided to plaintiff in
response to his request, the interviewers" notes taken at the time of the interviews
were not provided inasmuch as they had been destroyed in normal course. Now,
the interviewers' notes were actually more than an interviewer's written notations
intended to be used by her to subsequently refresh her recollection.
The notations made by the interviewers were an abbreviated recordation of
oral responses given by the interviewees to a series of well-defined specific
questions whose purpose was to discover the "when, where, why and how" of the
interviewees' knowledge of the subject matter of the investigation. It appears in
format they were different from what would be used by a person taking notes
during a preliminary investigatory conversation that typically would be less
restricted and more spontaneous in format.
In defending its actions with respect to the destruction of many of the
records sought by plaintiff, defendant claims the records qualify to be discarded
pursuant to an administrative regulatory policy.
' For these three interviews, there were two interviewers present. According to Fox, one hadprimary responsibility for asking questions and the other for taking notes. Although both took notes,one's focus was on questioning and the other's focus was on note taking. This stands in contrast tothe less formal preliminary inquiry made of plaintiff in January 2010.
5
Franklin County Ohio Clerk of Courts of the Common Pleas- 2013 Jan 03 1:38 PM-10CV018858
R.C. 149.351(A) provides:
"AII records are the property of the public office concerned and shall not beremoved, destroyed, mutilated, transferred, or otherwise damaged or disposed of,in whole or in part, except as provided by law or under the rules adopted by therecords commissions * * 'F." (Emphasis added.)
Subsection (A) provides that no public records can be destroyed except
pursuant to a commission rule or as otherwise permitted by law. Consequently,
destruction of a record not authorized by records commission rule or otherwise
permitted by law is a violation of R.C. 149.351(A).
Here, defendant contends the subject records were destroyed in full
accordance with the established records retention schedules. At issue here is
whether defendant's adopted records retention policy permits the destruction of
the records as "transient records." The records retention policy requires the
retention of transient records "until [they are] no longer of administrative value,
then destroy."
Plaintiff does not challenge the creation or validity of such a regulation, but
does contend defendant relied the incorrect retention schedule when it destroyed
these records. Plaintiff urges that the proper retention schedule (Employee
Discipline and Grievance Records) requires defendant to retain the records for
seven years.
Upon consideration, it is observed that good arguments could be (and have
been) made to support either side of the issue. The records under consideration
could be seen as transitory documents because their intended useful life was of
temporary and short duration (until such time as a more reliable document is
created). On the other hand, the records reasonably could be considered to be
6
Franklin County Ohio Clerk of Courts of the Common Pleas- 2013 Jan 03 1:38 PM-10CV018858
employee discipline records because they are able to serve to document an
employee's possible sanctionable misconduct.
As a general practice, a court should give due deference to an
administrative agency's interpretation of its own administrative rules. Salem v.
Koncelik, 164 Ohio App.3d 597, 2005 Ohio 5537, at P16, citing Hamilton Cty. Bd.
of Mental Retardation & Dev. Disabilities v. Professionals Guild of Ohio (1989), 46
Ohio St.3d 147. However, due deference to an administrative agency's
interpretation of its own administrative rules is not unfettered. If an agency's
interpretation fails to apply the plain language of a statute or rule, then a court
need not defer to such an unreasonable interpretation. See Guethlein v. Ohio
State Liquor Control Comm., Franklin App. No. 05AP-888, 2006 Ohio 1525, at
P24. Deference to an administrative interpretation is required only if such
interpretation is consistent with statutory law and the plain language of the rule
itself. Clark v. Ohio Dep't of Mental Retardation & Developmental Disabilities, 55
Ohio App. 3d 40, 1988 Ohio App. LEXIS 3715 (Ohio Ct. App., Lucas County
1988), citing Jones Metal Products Co. v. Walker (1972), 29 Ohio St. 2d 173, 181;
Rings v. Nichols (1983), 13 Ohio App. 3d 257, 260.
Here, plaintiff contends defendant's interpretation of its rules is flawed, but
during the course of his testimony, he admitted that although he received training
from defendant in records retention, he never had the duty to respond to a public
records request. Plaintiff further admitted that he did not know the difference
between the definition of a record and the definition of a public record. Further
observing plaintiff's testimony, he was of the opinion that written records should be
7
Franklin County Ohio Clerk of Courts of the Common Pleas- 2013 Jan 03 1:38 PM-10CV018858
"aiways" maintained, thus seemingly wholly ignoring the administrative value of
destroying the records in accordance with lawfully established records retentions
schedules.
In view of the lack of persuasive evidence to the contrary of defendant's
interpretive view of its regulations and with the court's acknowledgment of granting
deference to defendant's interpretive view of its administrative determinations, it is
found defendant's interpretation is consistent with statutory law and the plain
language of the rule itself. Thus the records here at issue (those responsive to
plaintiff's January 3, 2011 request) are found to have been properly destroyed and
thus not subject to production or the basis for subsequent sanction of defendant.
IV
Moving on, plaintiff made another records request on May 11, 2011. This
request was for grievance and disciplinary records maintained by Ken Featherling,
a former special agent of defendant and one of plaintiff's former supervisors. Here,
defendant responded to plaintiff's request and indicated that it did not possess the
requested records. Defendant's response informed plaintiff of the entity that would
possess the records aild offered to give him a hand in obtaining the records, but
never heard back from plaintiff. Consequently, it is found this particular records
request was responded to appropriately and lawfully.
V
Now considering plaintiff's claim alleging entitlement to damages for
defendant's alleged spoliation of evidence, one must note that "spoliation" means
"the intentional destruction, mutilation, alteration, or concealment of evidence,
8
Franklin County Ohio Clerk of Courts of the Common Pleas- 2013 Jan 03 1:38 PM-10CV018858
usu[ally] a document." Black's Law Dictionary, (8 Ed.Rev.2004) 1437. To establish
a claim for spoliation of evidence, plaintiff is required to prove the following: "(1)
pending or probable litigation involving the plaintiff, (2) knowledge on the part of
defendant that litigation exists or is probable, (3) willful destruction of evidence by
defendant designed to disrupt the plaintiffs case, (4) disruption of the plaintiffs
case, and (5) damages proximately caused by the defendant's acts." Smith v.
Howard Johnson Co., Inc., 67 Ohio St.3d 28, 29 (1993).
Here, and having found defendant's destruction of records and non-
production of records to be proper and in accordance with law, it is additionally
found pfaintiff failed to adequately demonstrate the necessary component of
actionable spoliation that defendant willfully destroyed evidence which was
designed to disrupt the plaintiff's case.
* *
Thus, and upon a full consideration of the evidence presented, the
magistrate finds plaintiff has failed to establish his claims for relief by the requisite
evidence and is thus unable to prevail in this action. Accordingly, the magistrate
would grant a judgment in favor of defendant and against plaintiff. Costs to be paid
by plaintiff.
Counsel for defendant shall prepare the appropriate entry for the court's
consideration of approval of this decision within twenty days of the filing of this
decision. This decision contains the magistrate's findings of fact and conclusions
of law. A party shall not assign as error on appeal the court's adoption of any
factual finding or legal conclusion, whether or not specifically designated as a
9
Franklin County Ohio Clerk of Courts of the Common Pleas- 2013 Jan 03 1:38 PM-10CV018858
finding of fact or conclusion of law, unless the party timely and specifically objects
in writing to that factual finding or legal conclusion within fourteen days of the filing
of this decision.
Copies electronically to:
Dianne Einstein, Esq.Counsel for Plaintiff
Cheryl NesterAssistant Ohio Attorney GeneralCounsel for Defendant
10
Franklin County Ohio Clerk of Courts of the Common Pleas- 2013 Jan 03 1:38 PM-10CV018858
Date:
Case Title:
Case Number:
Type:
Franklin County Court of Common Pleas
01-03-2013
DOUG HUNTER -VS- OHIO STATE BUREAU WORKERSCOMPENSATION
10CV018858
MAGISTRATE DECISION
So Ordered
/s/ Magistrate Timothy P McCarthy
Electronically signed on 2013-Jan-03 page 11 of 11
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
OOOa
M
machq
UNCa
O
U)t
0^^0Ya^UN
S^.Q.
0
0U.00
0U
^U_
Doug Hunter,
Plaintiff-Appellant,
V. No. 13AP-457(C.P.C. No. ioCVD12-18858)
Ohio Bureau of Workers' Compensationc/o Ohio Attorney General,
Defendant-Appellee.
(REGULAR CALENDAR)
D E C I S I O N
Rendered on December 23, 2014
Einstein Law, LLC, and Dianne D. Einstein, for appellant.
Michael DeWine, Attorney General, Cheryl J. Nester, andLydia M. Arko, for appellee.
APPEAL from the Franklin County Court of Common Pleas.
BROWN, J.
{¶ 1} This is an appeal by plaintiff-appellant, Doug Hunter, from a judgment of
the Franklin County Court of Common Pleas adopting a magistrate's decision finding in
favor of defendant-appellee, Ohio Bureau of Workers' Compensation ("BWC"), on
appellant's claims for forfeiture and spoliation of evidence.
{¶ 2} In December 1999, appellant began employment with BWC. In 2005, BWC
appointed appellant to the position of fraud investigator in BWC's Special Investigations
Unit ("SIU"), a part of BWC's Special Investigations Department ("SID"). BWC
terminated appellant's employment July 20, 2010.
PLAlMTIFF'SEXHIBIT
No. 13AP-457 2
~LO00®a
a
(Nvq
®N
^t
0c.^0
U
(Dssa
0t000^0
c0U
LL
{¶ 3} On December 29, 2010, appellant filed a complaint against BWC asserting
causes of action for forfeiture pursuant to R.C. 149.351 and spoliation of evidence. The
complaint alleged that appellant made public records requests of BWC on February 25
and December 4, 201o, and January 3 and May 11, 2o11, respectively, pursuant to R.C.
149•43, and that BWC had destroyed public records in contravention of R.C. 149.351.
Appellant subsequently filed an amended complaint.
{¶ 4} A magistrate of the trial court conducted a bencli trial beginning
September 26, 2012. The magistrate rendered a decision on January 3, 2013, finding in
favor of BWC. On January 17, 2013, appellant filed objections to the magistrate's
decision; appellant filed supplemental objections on April 2, 2013. By decision and entry
filed May 31, 2013, the trial court overruled appellant's objections and adopted the
decision of the magistrate, finding in favor of BWC.
{¶ 5} On appeal, appellant sets forth the following five assignments of error for
this court's review:
1. In this forfeiture case, the trial court erred when it failed torule whether or not the BWC violated the public records lawby failing to maintain the records of one of its formersupervisors.
2. The trial court's conclusion that the BWC respondedlawfully because another entity possessed the requestedpublic records is not supported by the evidence or Ohio law.
3. The trial court erred when it held that Appellant shouldhave followed up with the Labor Relations Division to receiverecords he requested from the BWC.
4. The trial court erred by finding that records on aninvestigation of Appellant on what occurred at a poker partywere not public records because the same were not used bythe BWC to discipline Hunter and that said records weretransient and properly destroyed.
5. The trial coui-t erred by holding that the records from all ofthe investigatory interviews of Hunter and other eniployeesconducted by the BWC on whether Hunter violated BWCpolicy were transient, and thus, properly destroyed.
No. 13AP-457 3
r_LO0Q0aM
Ea.t")
MNv(D0
®NU)t0^0
^U
aQ.
®
m000s0
_0
^
eLti
{¶ 6} Appellant's five assignments of error are interrelated and will be considered
together. Under these assignments of error, appellant challenges the trial court's denial of
his claim for civil forfeiture and, in particular; the rulings of the magistrate following the
bench trial as to his public records requests relating to (1) BWC's investigation of an
employee poker party, (2) investigatory interviews of appellant and two other BWC
employees, and (3) discipline and grievance records kept by appellant's former supervisor.
{¶ 7} In order for appellant to succeed in a civil action for forfeiture, pursuant to
R.C. 149.351, "he must have requested public records, the public office must have been
obligated to honor that request, subject to certain exceptions in R.C. 149.43(B), the office
must have disposed of the public records in violation of R.C. 149•351(A), and [he] must be
aggrieved by the improper disposal." Rhodes v. New Philadelphia, 129 Ohio St.3d 304,2oii-Ohio-32791 ¶ 16.
{¶ 8} R.C. 149•351(A) states in part: "All records are the property of the public
office concerned and shall not be removed, destroyed, mutilated, transferred, or otherwise
damaged or disposed of, in whole or in part, except as provided by law or under the rules
adopted by the records commissions." A"[p]ublic record" means "records kept by any
public office," including a state office. R.C. 149.43(A)(1). Pursuant to R.C. 149.o11(G),
"[r]ecords" is defined to include "any document, device, or item, regardless of physical
form or characteristic, including an electronic record * * * created or received by or
coming under the jurisdiction of any public office of the state * * * which serves to
document the organization, functions, policies, decisions, procedures, operations, or other
activities of the office."
{¶ 9} At issue on appeal are three of the four records requests made by appellant
to BWC. Specifically, appellant challenges the trial court's decision overruling his
objections to determinations by the magistrate with respect to records requests he made
to BWC on February 25, 2010, and January 3 and May 11, 2011.
{¶ 10} We first address the trial court's ruling as to appellant's February 25, 2010
records request for documents relating to BWC's inquiry of events surrounding a poker
party involving BWC employees. By way of background, the evidence presented at trial
before the magistrate indicates that Shawn Fox, special agent in charge of BWC fraud
investigations in western Ohio, became aware in 2010 of alleged comments made by
No. 13AP-457 4
^Iq®00
Mr
Ea^
MNt9G9
0
cnt70v0
^v^
a0-
0t0
0s0
c0C^c
^LL
appellant during a poker game attended by several BWC employees. More specifically,
according to testimony by Fox, BWC employee Darrin Booker informed another
employee, Craig Thotnpson, that appellant "was at poker parties bragging about going to
the media on a recent disciplinary case," and that appellant "was threatening to go to the
media on some issues." (Tr. 214.) Thompson related that information to Fox. Following
this conversation, Fox spoke with Brad Nielson, a BWC labor relations officer, about how
to proceed in addressing a potential violation of agency policy. Nielson advised Fox to
question attendees of the poker party to ascertain "if there is any truth to it," and "if there
is, then we'll open up an investigation." (Tr. 215-16.)
{¶ 11} Fox subsequently questioned several individuals, including BWC employees
Booker and Amy Hoops who had attended an after work poker game, and made
hand,,vritten notes of the conversations. On January 27, 2010, Jennifer Saunders,
assistant director of investigation for SIU, and Kim Pandilidis, an assistant special agent
for SIU, interviewed appellant; during this interview, they asked appellant questions
about the poker party, and also questioned him about a separate matter regarding his
alleged involvement in a verbal altercation. Saunders and Pandilidis took handwritten
notes during their interview with appellant. Based on these discussions, Fox determined
that "[n]othing occurred," that "nothing was told to anybody, there was no reason to move
forward, it had no value to us." (Tr. 216.) Fox reported his findings to Nielson, and
Nielson made the decision to not move forward witli a full investigation, The handwritten
notes of the interviewers were subsequently destroyed.
{¶ 12} On February 25, 2oio, appellant sent an e-mail to Nielson, requesting in
part "[a]ll correspondence, notes, allegations or any other written documentation and
name of Source who BWC received information about comments and discussions which
involved the BWC at Poker Games that I attended and lead to the interview questions
regarding this poker game." In response to this request, appellant received copies of e-
mails with respect to the investigation, as well as a copy of the typewritten questions
prepared for the oral interviews.
{¶ 13} On June 29, 2010, Monique Hall, the BWC's public records manager, sent
appellant an e-mail, stating in part:
With regard to your request for the name of the alleged sourceinvolved in this investigation, whether or not personnel have
No. 13AP-457
knowledge of this person's identity, BWC does not have thename of the source in a recorded format that could beprovided to you as a record in response to your request.Accordingly, we are unable to provide you this information.
t-LOCDCD0.
a
c^
v0y
0^0
U10(aa.
0
0c)0
0wc0
c^^
C
L
LL
Your second question was in regards to the retention ofhandwritten notes from investigative interviews. The practiceof discarding handwritten notes from interviews is a standardpractice within SID, and is addressed in department policy.The practice is consistent with the retention schedule fortransient d.ocuments (documents of temporary importance):The handwritten notes are kept for a limited period - until itis determined that the notes no longer have administrativevalue or usefulness - and then destroyed. In this case, once itwas determined that there would be no resulting discipline inconnection or as a result of the interview, there was no valuein retaining the notes. The notes were subsequently destroyedpursuant to applicable policy.
5
{¶ 14} The magistrate, in addressing appellant's February 25, 2010 public records
request, held that the purported documents were not public records and/or were not
improperly destroyed. In so holding, the magistrate rejected appellant's contention that,
"because Fox shared the information with Brad Nielson of the BWC, who presumablyused these records to decide not to discipline plaintiff, the documents thus qualify as
public records." (Emphasis sic.) The magistrate concluded "it was not the physical
documents that served as a source of reliance for the decision not to proceed further and
open an investigation." Rather, the BWC relied on the oral report of Fox to Nielson in
determining "that nothing of interest was uncovered."
{¶ 15} The magistrate alternatively held that "even if it is possible to conclude that
the records constitute public records, they were not improperly destroyed." Specifically,
the magistrate found the documents were "precursor writings whose value was of
temporary duration," and that their value "was rendered nugatory upon the decision that
an investigation not be opened to explore the subject further." The magistrate further
determined that the records "were then destroyed in accordance with the retention
schedule (GAR-CM-o5) for transient documents."
{¶ 16} With respect to appellant's request for all "notes" related to the poker
games, we find no error with the magistrate's determination that the handwritten notes
taken by BWC investigators regarding their discussions with appellant and BWC
No. 13AP-457 6
to000a
r
n.
MCN0v
0
Nt0U
®
^Uym0aa
c
0U
.O
0
^0U^
^^
employees Booker and Hoops do not constitute public records. Under Ohio law, the
general rule is that "a public official's personal notes made for his or her own convenience
are not public records." State ex rel. Verhovec v. Marietta, 4th Dist. No. 12CA32, 2013-
Ohio-5415, T 25, citing State ex rel. Cranford v. Cleveland, 103 Ohio St.3d 196, 2004-Ohio-4884•
{¶ 17} In the instant case, the evidence indicates that the notes taken by the
interviewers were for their personal convenience, used by the authors to assist them in
their duties, and not kept as official records. While Fox testified that he referenced his
notes in a follow-up conversation with Nielson, Fox did not share the notes with Nielson,
nor did he circulate the notes to others. Here, in addition to the magistrate's factual
finding that the agency did not rely ari the notes at issue in deciding to forgo any formal
investigation as to alleged statements by appellant, the record supports a determination
that the handwritten notes were for the interviewers' personal use and convenience, and
we agree with the magistrate that such documents do not constitute public records subject
to disclosure under R.C. 149•43. See Cranford.
{¶ 18} As part of his February 25, 2o1o records request, appellant also sought any
written documentation regarding the "name of [the] Source" who provided BWC with
information about comments and discussions made at BWC poker games. In response to
this request, Hall sent appellant an e-mail informing him that "BWC did not have the
name of the source in a recorded format that could be provided to him as a record in
response to the request." (Tr. 4o8.) At trial, Hall testified "[t]here was not a record" in
response to that request. (Tr. 408.) Thus, the evidence before the trier of fact indicated
that no written document existed naming the source sought by appellant. Because the
record sought did not exist, the agency was under "no clear duty to create such a record."
State ex rel. Welden v. Ohio State Med. Bd., loth Dist. No. 11AP-139, 2o11-Ohio-656o,1( 9, citing State ex rel. Whlte v. Goldsberry, 85 Ohio St.3d 153, 154 (1999). Accordingly,
the trial court did not err in overruling appellant's objections relating to the February 25,
2o1o records request.
{¶ 19} We next address appellant's challenge to the trial court's ruling on his
January 3, 2o11 records request in which he sought documents regarding questions posed
to him, and answers he provided, during BWC investigatory interviews conducted on
tiU)0b0n.^
(LM
M
caa)d
0N
N
0U
0
vc^N(Daa^0
0v®s0
^0
C)c
c
NO. 13AP-457 7
January 27 and June 22, 2010. Also at issue are documents appellant requested relating
to investigatoiy interviews of BWC employees Beverly Hasty and Rebecca Roach
conducted on June 24, 2010.
{¶ 20} We note the following factual background surrounding the BWC
investigatory interviews conducted in June 2010. In March 2010, the Office of the
Inspector General ("OIG") initiated an investigation of allegations that certain BWC
employees, including appellant, had mishandled evidence and made false statements
arising out of a 2oo8 BWC fraud investigation ("the 2008 fraud investigation"). More
specifically, in 2008, BWC assigned appellant and two other individuals, BWC fraud
analysts Roach and Hasty, to investigate allegations that an individual was operating a
karaoke business while receiving workers' compensation benefits. The investigators
conducted an undercover operation and collected evidence. BWC was subsequently
unable to locate evidence collected by those investigators as part of the 2008 fraud
investigation.
{¶ 21} OIG issued a report on May 27, 2010, finding in part that appellant and
Roach, after collecting evidence during the 2008 fraud investigation, "then failed to follow
appropriate and required procedures for handling the evidence." OIG concluded that,
"[b]ecause of the errors, the agency is left without valuable evidence that could be used at
trial or in other proceedings." (OIG Report at 6.) The OIG report recommended that
BWC "take the appropriate administrative action to address the actions of Fraud
Investigator Douglas Hunter and Fraud Analyst Rebecca Roach." (OIG Report at 6.)
{¶ 22} Following OIG's investigation and findings, BWC, through the SIU, initiated
its own investigation as to the allegations contained in the OIG report of missing evidence
and lack of documentation. On June 22, 201o, Fox and Saunders interviewed appellant
regarding the 2008 fraud investigation. On June 24, 2o1o, Fox and Saunders conducted
investigatory interviews with Hasty and Roach. Follov4ing appellant's June 22, 2010
interview, BWC suspended appellant with pay pending a pre-disciplinary hearing. At
trial, Fox testified that BWC subsequently terminated appellant's employment on grounds
of dishonesty and mishandling of evidence arising out of the OIG investigation.
{¶ 23} On January 3, 2011, appellant submitted a public records request which
included a request for documents containing the list of questions, "handwritten and/or
No. 13AP-457 8
LO1*®®0n-
aMet'
N
®
y^0U0
-19
UN
CLa
®
000
0
0U
typed," and answers related to the June 2010 investigatory interviews of appellant, Roach,
and Hasty, arising out of the 2oo8 fraud investigation. As part of this request, appellant
sought the "handwritten record" of the answers prepared by the interviewers "used to
prepare the typed investigatory inteiview." Appellant also sought all documents
"containing the list of questions (handwritten and/or typed) that Kim Pandilidis and
Jennifer Saunders asked Doug Hunter during the investigatory interview" conducted on
January 27, 2010.1 In response to this request, BWC provided appellant various
documents, including the typewritten reports pertaining to the interviews at issue.
{¶ 24} At trial, the parties raised competing arguments with respect to whether the
records at issue were subject to BWC's retention schedule for transient records, as argued
by BWC, or whether they were subject to BWC's retention schedule for "Employee
Discipline and Grievance Records" as urged by appellant. The magistrate, in addressing
appellant's January 3, 2011 records request, found persuasive BWC's interpretation of its
rules and determined that the agency properly disposed of the handwritten interview
notes as transient records in accordance with its records retention schedule.
{¶ 25} Appellant challenges the magistrate's determination that the handwritten
records were transient. Specifically, appellant argues that the applicable BWC records
retention schedule was for. Employee Discipline and Grievance Records, which he asserts
required BWC to retain the handwritten notes for seven years.
{¶ 26} In response, BWC argues the handwritten notes by the interviewers were
not public records; rather, it asserts, the interviewers used the notes to assist them in
creating the transcribed report of the interview, which became the official record of the
office and which BWC provided to appellant as part of his records request.
{¶ 27} The evidence at trial indicates that two interviewers were always present
during each of the June 2010 interviews conducted by SIU with the three interviewees
(appellant, Roach, and Hasty). A union steward was also present at each interview. Both
interviewers took their own handwritten notes. Later, the interviewers verbally compared
responses from their notes and prepared a typewritten report of the interview; each
interviewer subsequently destroyed their own handwritten notes. In response to his
1 As previously noted, BWC employees Saunders and Pandilidis conducted an interview of appellant onJanuary 27, 2010. During that interview, they questioned appellant regarding an alleged verbal altercationinvolving appellant at a BWC office in Lima.
If)00®a
^.M
v
0^
0c^0
^v^cova.0.
0
0v0
®
0^
No. 13AP-457 9
records request, appellant received copies of the typewritten reports documenting his
interviews on January 27 and June 22, 2o1o, as well as the -rypewritten reports prepared
following the interviews of Roach and Hasty conducted on June 24, 2010.
{¶ 28} At trial, the magistrate heard testimony regarding the agency's policy for
disposing of interview notes as part of an investigatory interview. Specifically, Fox
testified that SIU's "established practice" in handling an investigation is to "memorialize
in one document what occurred," and then "our notes are destroyed." (Tr. 1-75.) Fox
stated that the practice followed by the interviewers during the investigatoiy interviews
with appellant, Roach, and Hasty was in accordance with SIU policy. Fox related that
both interviewers took notes during the interviews, and that the interviewers
subsequently "talked and compared verbally" in the course of preparing the typewritten
report. (Tr. 23o.) Fox testified that BWC's policy requires consistency with respect to
keeping or destroying notes; Fox noted that he "always destroy[s]°" his notes. (Tr. 233.)
{^ 29} Similar to the testimony of Fox, BWC employees Pandilidis and Saunders
testified that they followed SIU policy in shredding the handwritten notes following the
interviews. Saunders, who shredded her personal notes after the "final document" was
prepared, explained that "[o]nce I was finished with them, they were * * * no longer of
administrative value to me **#. And per policy we always shred them or we always keepthem." (Tr.3®8.)
{¶ 30} At trial, a copy of SIU's policy regarding inteiview procedures was admitted
into evidence; that document provides in part:
It is the policy of each investigative unit to conduct subjectinterviews with two BWC investigative employees present.* * * The interview will be conducted with a primary andsecondary interviewer. The secondary interviewer will beaccountable for keeping detailed notes of the interview. Apermanent record of the interview will be kept denoting anyout of the ordinary event or occurrence in the interviewsetting. The primary interviewer will be responsible forauthoring the required interview memo outlining pertinentfacts of the inteniew and to supplement the notes taken bythe secondary interviewer. After the permanent record hasbeen established, the agent may destroy his/her notes orinclude them in the SK file. The agent must be consistent withthe disposition of his/her notes - destroy all notes for all casesor include notes in the SK file for all cases.
No. 13AP-45710
t-LOQ0n.
aM
MNvd0
®
^
0UO
U^
CL
at0
00
0u.c
{¶ 31} As previously discussed, the general rule is that personal notes are not
public records subject to disclosure. See, e.g., Cranford; State ex rel. Mun. Constr. Equip.
Operators' Labor Council v. Cleveland, 8th Dist. No. 83057, 2004-Ohio-1261, ¶ 10 ("thehandwritten personal notes of a public employee or official are not public records"). In
the instant case, appellant argued before the trial court that the handwritten notes were
public records because the interviewers used their notes to create the i^inal typewritten
document. However, the fact that notes taken by the interviewers may have pertained to
work of the agency is not dispositive. See, e.g., State ex rel. Steffen v. Kraft, 67 Ohio St.3d439, 440 (1993) (noting "Federal Courts have * * * recognized that personal uncirculated
handwritten notes reflecting an employee's impression of substantive discussions and
agency business meetings are not''agency records' ").
{¶ 32} In Cranford, the appellant-employee appealed the appellee-city's
termination of his employment asserting that a city official's personal notes from a pre-
disciplinary conference, which included questions asked and answers provided, should
have been disclosed as part of the employee's public records request. The Supreme Court
of Ohio rejected the appellant's argument holding that the official's personal notes were
"not public records subject to disclosure under R.C. 149.43." Id. at ¶ 21. The court inCranford observed that its conclusion "is consistent with courts of other jurisdictions
holding that personal notes of public officials generally do not constitute public records."
Id.at¶22.
{¶ 33} In Cranford, the court cited with approval the decision in State ex rel.ltlurray u. Netting, 5th Dist. No. 97-CA-24 (Sept. 18, 1998), in which the relator, an
unsuccessful candidate for office, filed a public records request for various documents
relating to the hiring process of the chief of police of a municipality. Among the
documents requested were handwritten notes evaluating candidates during the interview
process; the interviewers subsequently relied on the handwritten notes to complete the
evaluation forms. While the court in IVlurray noted that the relator was entitled to the
evaluation forms of each candidate, the court further determined that the handwritten
notes, which were the personal papers of the interviewers, were not public records as
defined by R. C. 149,43•
No. 13AP-457 11
^a®(.M
a.^
MNv
N
^
0v0
^UN
^n.a
0
0v0s0
0c)
Y
Lw
{¶ 34} In Barnes v. Columbus Civ. Serv. Comm., loth Dist. No. loAP-637, 2011-Ohio-2808, this court held that personal notes taken by assessors, used to recall relevant
factors observed during a candidate's promotional examination and to assist the assessor
in completing a score sheet, did not constitute public records. The appellants in Barnes
asserted in part that the assessors' notes qualified as public records because the assessors
relied on them to complete the final score sheets. In finding the appellants' argument
unpersuasive, this court cited both Cranford and Murray as "prior personal note cases"
in which "the notes at issue related to a matter upon which the note taker was charged
with making a decision or aiding in the decision-making process." Barnes at ¶ 24.
{¶ 35} Upon review, we agree with BWC's contention that the handwritten
interview notes do not constitute public records. As indicated, two interviewers
questioned each individual, and both interviewers took handwritten notes of the
responses. According to Fox, after the interviews were conducted, the two interviewers
"talked and compared verbally" the responses, and then prepared a typewritten report.
(Tr. 230.) Here, the evidence indicates that the handwritten notes by the interviewers
were materials used to assist them in recalling the responses during the interviews and to
facilitate their preparation of the transcribed reports (i.e., the official record), copies of
which appellant received as part of his records request. See, e.g., Barnes; Murray. Seealso Silberstein v. Montgomery Cty. Community College Dist., 2d Dist, No. 23439, 2009-
Ohio-6138 (holding that personal notes of hiring committee members made on interview
question forms were not public records, and that the appellee did not violate R.C. 149.351
by disposing of the notes following the interviews).
{¶ 36} Based on the evidence presented, we conclude -that the trial court did not err
in adopting the magistrate's determination that the agency acted in accordance with its
policy, and was permitted to destroy the handwritten notes. Accordingly, the trial court
did not err in denying appellant's forfeiture claim as to his January 3, 2011 records
request.
{¶ 37} The final request at issue involves appellant's May 11, 2o11 request for
records maintained by former BWC employee Ken Featherling. Under this request,
appellant sought "[a]ll BWC employee discipline records maintained by Ken Featherling
in his office at the Governor[']s Hill Service Office," as well as "[a]ll BIATC
No. 13AP-45712
employee/employer grievance records maintained by Ken Featherling in his office at the
Governor[']s Hill Service Office."
{¶ 38} In response to that request, Hall sent appellant correspondence on June 27,
^0®®n.M
o.M
N
®N
0U
0
^Nmwa^
0
0cs0
0^c0U
cU.
2011, stating in part:
This communication is in response to your request for allBWC employee discipline records and employee/employergrievance records maintained by Ken Featherling in his officeat the Governors Hill Service Office.
As you are probably aware, Ken Featherling has not beenemployed with BWC since 2oo8. BWC does not maintaincopies of any discipline or grievance records that would havebeen separately or independently maintained by KenFeatherling. Discipline and grievance records are maintainedby the BWC Labor Relations Division of the HumanResources Department and/or the Union. If you would like torequest specific discipline records, please let me know and Iwill work with Labor Relations to have your requestexpedited.
{¶ 391 At trial, Hall presented testimony regarding the agency's response to
appellant's May 11, 2011 request for all BWC employee discipline and grievance records
maintained by former BWC employee Featherling. The evidence indicated that
Featherling left his employment with BWC in 2oo8, and Hall cited difficulties in
responding to a request for records kept by a former employee dating back several years,
noting: "We may be able to do that * * * if we are aware of the specific note, if there is a
request for a very specific document." (Tr. 421.) Hall stated that appellant's request,
"seeking all grievance records or all discipline records that an employee may have had,"
presented issues based on the "overly broad" nature of the request. (Tr. 414.) According
to Hall, a "request should identify the records with reasonable clarity," including "an
indication as to the individual involved in the discipline or grievance records." (Tr. 421-
22.) Hall further testified as to the agency's correspondence in response to appellant's
request, noting that the e-mail informed him that discipline and grievance records were
"maintained by the BWC labor relations division of the Human Resources Department,"
and offering to assist appellant if he "would like to request specific discipline records."
(Tr. 413.) When asked whether appellant ever made a follow-up request identifying
N.®00
aM
N^
0
N
0L)®
^
^^aw0
0U0^0
^0U
^
LL
No. 13AP-457 13
specific discipline records, as referenced in Hall's June 27, 2011 correspondence, Hall
responded: "Not that I can recall." (Tr. 415.)
{¶ 40} The magistrate, in addressing this request, cited evidence that BWC
"responded to plaintiffs request and indicated that it did not possess the requested
records." Further, BWC's "response informed plaintiff of the entity that would possess the
records and offered to give him a hand in obtaining the records, but never heard back
from plaintiff." Based on the evidence presented, the magistrate concluded that "this
particular records request was responded to appropriately and lawfully."
{¶ 41} Upon review, we find no error by the magistrate in finding that appellant
responded appropriately to this request. Under Ohio law, "it is the responsibility of the
person who wishes to inspect and/or copy records to identify with reasonable clarity the
records at issue." State ex rel. Fant v. :Tober, 8th Dist. No. 63737 (Apr. 28, 1993). Here,
appellant requested "all" discipline and grievance records of "Ken Featherling in his
office." In response to appellant's request, BWC informed appellant that BWC Labor
Relations Division maintained employee discipline and grievance records, and offered to
assist appellant as to any "specific discipline records" request he might have. As noted by
the magistrate, however, the agency "never heard back" from appellant. Further, the
evidence indicates that Featherling last maintained an "office" with BWC in 2008.2 Here,
the record supports the magistrate's determination that BWC offered to assist appellant
with a specific records request, but that appellant did not follow-up with this invitation,
nor did he indicate that the agency's response was unsatisfactory. See, e.g., State ex rel.Zidonis v. Columbus State CommunatiJ College, 133 Ohio St.3d 122, 2012-Ohio-4228,
¶ 40 (no error in finding appellee-college complied with R.C. 149.43 where appellant
ignored appellee's invitation to refine overbroad requests for records). Upon review, the
trial court did not err in overruling appellant's objections with respect to his May 11, 2011
records request.3
2 Because appellant did not follow-up with a specific request, we do not address the qtiestion of whetherBWC or any other public agency violates public records laws by not maintaining records "separately orindepeaidently maintained" by an employee who is no longer employed by the agency.
3 Appellant has filed a motion to strike a paragraph of BWC's brief, as well as certain statements made bycounsel for BWC at oral argument. Any such arguments or statements are not dispositive to our decision,and we hereby deny appellant's motion to strike.
No. 13AP-45714
{¶ 421 In light of the foregoing, we find the trial court did not err in adopting the
decision of the magistrate finding that appellant failed to establish his claims for relief by
the requisite evidence. Accordingly, appellant's five assignments of error are overruled,
and the judgnient of the Franklin County Court of Common Pleas is hereby affirmed.
Motion to strike denied;judgment affirmed.
DORRIAN and LUPER SCHUSTER, JJ., concur.
0A142 - N88
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Doug Hunter,
Plaintiff-Appellant,
V.No. iSAP-457
(C.P.C. No. ioCVD12-i8858)
Ohio Bureau of Workers' Compensation . (REGULAR CALENDAR)c/o Ohio Attorn.ey General,
Defendant-Appellee.
JLTDGMENT ENTRY
For the reasons stated in the decision of this court rendered herein on
December 23, 2014, appellant's April 23, 2014 motion to strike is denied, appellant's five
assignments of error are overruled, and it is the judgment and order of this court that
the judgment of the Franklin County Court of Common Pleas is affirmed. Costs are
assessed against appellant.
BROWN, DORRIAN, & LUPER SCHUSTER, JJ.
/s/ JudqeJudge Susan Brown
PLAINTIFF'SEXHIBIT
^_
0A142 - N89
Tenth District Court of Appeals
I)ate: 12-23-2014
Case Title: DOUG HUNTER -VS- OHIO STATE BUREAU WORKERSCOMPENSATION
Case Number: I 3 AP0004_5?
Type: JEJ - JUDGMENT ENTRY
So Ordered
/s/ Judge Susan Brown, P.J.
Electronically signed on 2014-Dec-23 page 2 of 2