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COLUMBUS — The Ohio Supreme Court on Tuesday grappled with the realities of the computer age as it weighed the question of when a “deleted” public record becomes a “destroyed” public record.

At issue is a lawsuit by The Blade seeking to force the Seneca County commissioners to hire a forensic computer expert at county expense to recover deleted e-mails from an 18-month period, some of which the newspaper contends may contain illegal private communications related to the proposed razing of the county’s historic courthouse.

“We’re talking about a very finite amount of time here, and we’re talking about e-mails from two or three people to one another,” said Justice Maureen O’Connor. “It just doesn’t seem to me to be that overwhelmingly burdensome or such a huge task here for the county to not even attempt to comply.”

Fritz Byers, The Blade’s attorney, told the court that the newspaper made a request under the Ohio Public Records Law seeking all e-mails sent, received, or deleted for an 18-month period beginning Jan. 1, 2006. The county provided a “smattering” of e-mails initially, he said, but then, after the paper sued, the county produced 700-plus pages of additional e-mails.

He noted that the commissioners have admitted that some records were deleted.

“If the court doesn’t rule fully in our favor, then it will mean that any official will be able to legally cover his tracks and misdeeds by a simple click on the computer's delete button,” said John Robinson Block, The Blade’s co-publisher and editor-in-chief.

“Obviously, it would be a great day for secrecy in Ohio and for government under the cloak of darkness and a bad day for sunshine and openness [if the court should rule otherwise]. I think this is the most important [public records] case in the last 20 years…

“If open records law passed in Ohio mostly before computer and electronic records existed are to have any meaning at all, then we need to get an order just as we requested,” he said.

The county, however, argued that The Blade is operating on “a hunch” and has made an overly broad request at taxpayer expense.

“The Blade wants this court to enact new law that will allow The Blade to force a public office to pay for an outside forensics expert to search for and reconstruct e-mails that The Blade cannot prove were improperly deleted…,” said attorney Mark Weaver, who argued the case for the county.

“The Blade has been unable to prove that these records are gettable by any forensics means,” he said.

Chief Justice Thomas Moyer dismissed the discussion of cost as it relates to recovery of electronic records.

“We don’t have any case where we have based our decision on whether something is a public record or not on the cost of producing it…,” he said. “I don’t think the cost of that is our concern. That’s for the General Assembly it seems to me.”

Contact Jim Provance at:
jprovance@theblade.com
or 614-221-0496.

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