From The Delaware Gazette Judges sitting on Ohio’s Fifth District Court of Appeals asked several pointed questions Tuesday as they heard arguments regarding an ongoing issue involving Liberty Township.
The case before the court is an appeal of the Ohio Court of Claims’ ruling that the notes of a Cincinnati attorney who was contracted by the township for an investigation are public record. Douglas Duckett was commissioned in March 2016 by Liberty Township trustees as a private investigator to probe the conduct of former Fire Chief Tim Jensen.
“How do we know they are private notes?” asked Judge W. Scott Gwin. “I would suggest at this point we don’t know.”
Gwin said there has never been an analysis done to know if the notes should or should not be considered public documents. He said the only way to determine if the notes were public records was through an “in camera inspection” of the notes.
Duckett used the notes from the investigation to compile a final report that lead to Jensen being charged “not fit to remain in command of the fire department.”
Township residents James Hurt and Mark Gerber made public document requests for Duckett’s notes starting in May 2016. Their requests were repeatedly denied by township officials based on the entity not ever being in possession of the notes.
Hurt and Gerber filed in November 2016 with the Court of Claims over the denied requests. In March the court ruled Duckett’s notes were public records.
“This is a very unusual circumstance,” Gwin said. “The fact of a private citizen, pursuant to a statute, performs a function that the township is requiring in order to address as an important issue as removal of a fire chief. It would seem to be public business even though it seeks an independent or special prosecutor, i.e., a private citizen.”
Liberty Township’s attorney, Stephanie Schoolcraft, asked the court to overturn the lower court’s ruling that the notes were public documents.
Since this is the first case of its type, Schoolcraft said the parties have a disagreement over the “appropriate standard of review” for the case. She asked the court to effectively have the case retried from the beginning.
Judge John W. Wise said that the trustees, as a quasi-judicial board, had the the right to ask for Duckett’s notes.
“You have the authority and right to ask for the notes,” he said. “By having the notes, the board would know if … that’s everything or no that wasn’t everything.”
Jim Burnes, independent counsel representing Hurt and Gerber, said the case wasn’t about who touched the Duckett notes last. He said it’s about the getting public documents into the hands of the taxpayers.
“This court knows full well that when we get into public records law in the State of Ohio, it’s very clear that all courts bend over backwards in favor of making public records available to people who vote and fund the operation of government,” he said.
Burnes said the significance of making the notes available to Jensen’s attorney, Paul Bittner, was to avoid violating a personal note exception rule.
“There is no basis in Ohio law, anywhere, that when you share those documents with somebody else, as these folks have done, that you have a personal note exception,” Burnes said. “They had plenty of opportunity to put that information out there.”
Judge Patricia Delaney, presiding judge, asked if the briefs submitted to the court contained the Duckett notes. Burnes told the judge they did not.
Scott asked if the records were turned over to the judge of the Court of Claims before making the decision that the notes were public record. Burnes said no.
“There has been an obligation right now, that has been left unchecked, that these are public records and that the entities that requested them should be given them, right?” Gwin said. “How can you ever go to the second step where they want to challenge some of the material in these records as being exempt perhaps under attorney client privilage, perhaps under the exeception of personal notes? They should never do that analysis until the underlying evedience was presented to the entity that is being asked to make those determinations?”
Burnes said he understood what Gwin was saying and that it was a good point, but not neccessarily in this case.
“They can assert they’re personal notes argument,” said Burnes. “It is undisputed that everything to defeat that argument is presented in this case.”
President and Executive Director of the Ohio News Media Association Dennis Hetzel testified before the Ohio House Government Accountability and Oversight Committee in support of Senate Bill 321 that created the new procedure within the Court of Claims. Hetzel attended the Court of Appeals hearing Tuesday.
“I think it’s important to uphold the Court of Claims process,” he said. “It was a complete victory for these citizens of the Court of Claims. It should be a higher hurdle for the township to jump over in order to keep these notes secert. What I hope happens is they order the release of the notes. Then if the township decides if portions of those notes should be redacted or blacked out, the township can do that and the people who get the notes can decide if they want to argue about that.”
The Court of Appeals must rule on the case in 60 days.