The Ohio Fifth District Court of Appeals has affirmed a Court of Claims judgment that the notes compiled by an attorney hired by the Liberty Township trustees to conduct an investigation of the township’s former fire chief are public documents.
Liberty Township residents Jim Hurt and Mark Gerber made requests for attorney Donald Duckett’s notes starting in May 2016. Their requests were repeatedly denied by township officials based on the trustees’ claim that the township was never in possession of the notes.
“It was a pretty damn strong opinion,” said Mark Gerber. “The court determined the same thing we had, you can’t put it on a private citizen to hide the notes from the public.”
Stated in the court’s affirmation, “We have already concluded that under both the functional equivalency test and the quasi-agency test, Duckett prepared records in order to carry out a public office’s responsibilities, Liberty township monitored Duckett’s performance and Liberty Township had access to the records.”
Township attorney Stephanie Schoolcraft filed an appeal with the Fifth District Court requesting a review of “whether the personal notes of a non-employee private citizen appointed pursuant to the Ohio Revised Code are public records even though the personal notes were not provided to, maintained, or used by … Liberty Township.”
“The public’s right of access to public records, includes any material on which a public office could or did rely, *** regardless of where they are physically located, or in whose possession they may be,” the court’s affirmation stated.
Trustee Melanie Leneghan said the township only paid for the investigation and obtaining the notes could be an exorbitant additional fee to the taxpayers.
“It should be if you don’t have it, you don’t have to produce it,” Leneghan said. “This township has to now produce documents we don’t have. The report is built off the notes. The court is underestimating that the notes may not exist any longer.”
Leneghan contends that the court isn’t merely interpreting the law, but rewriting it.
“I’m very disappointed the court has added to the law,” said Leneghan. “The court is putting all levels of government in a position where they have to spend untold amounts of money. Nowhere in the Sunshine Laws and in the training does it state you have to produce a document you don’t have. At the end of the day it’s going to cost taxpayers millions of dollars.”
Schoolcfraft’s appeal also states from trustees’ affidavits that none of the trustees have ever seen Duckett’s notes.
Stated in the courts affirmation, “Duckett’s billing statement reveals that he prepared ‘detailed outlines’ of his ‘investigatory interview’ with the witnesses before he actually interviewed each witness. Thus, it cannot be said that all of the notes were created contemporaneously with the interviews to provide Duckett a means to refresh his memory. Further, Duckett revised his ‘interview outline’ based upon the concerns of Trustee Leneghan. Thus, it appears Duckett reviewed his outlines with the trustees and the trustees had input into the content of the outlines. Duckett’s billing statement further suggests the he ‘debriefed with clients’ after conducting each investigatory interview. Thus, the record suggests that Duckett and the board discussed each person’s interview and how the interview related to the charges against Jensen.”
Dennis R. Hetzel, Ohio News Media Association president and executive director, testified in May 2016 before the Ohio House Government Accountability and Oversight Committee in support of Senate Bill 321, which created the procedure within the Court of Claims.
“I’m thrilled by the decision,” said Hetzel. “I think the appellate court put a lot of thought into the decision. I think it was important to affirm the Court of Claims in this new process. I think our attorney did a really good job at articulating our side.”
“Now four judges and one Special Master have disagreed with the township on their position in three separate legal proceedings,” said Jim Hurt. “They have needlessly spent a great deal of tax dollars to hide ‘something’ and that it’s now time to give it up.”
Jensen was never found guilty of any wrongdoing and accepted a position as fire prevention officer with the township as part of a settlement in 2016.
D. Anthony Botkin may be reached at 740-413-0902 or on Twitter @dabotkin.