The Fifth District Court of Appeals has upheld a decision to deny a man trying to use the public records law for financial benefit. In a twist of fate, the court relied on a 2011 Supreme Court of Ohio decision overturning one of its own rulings in a similar case.

The Fifth District last week affirmed a ruling of the Tuscarawas Common Pleas Court granting summary judgment to the Village of Dennison, which claimed the motive for James Verhovec’s public records request was to ultimately gain up to $10,000 in fines that could be imposed on the village.

In September 2010, James Vehovec filed a written public records request asking for 20 years of all council meeting minutes, handwritten draft minutes, and audio/video recordings of council proceedings dating back to January 1990. The village provided all typewritten minutes, the handwritten notes in existence, and indicated all audiovisual recordings were non-existent. Vehovec then filed suit seeking damages, court costs, and attorneys fees for failing to provide the old handwritten records.

In October 2013, the common pleas court found for the village indicating the Verhovec was not “aggrieved” by the inability to provide the handwritten draft minutes and was not entitled to damages.

Writing for the Fifth District, Judge Sheila G. Farmer noted the verdict centers on the interpretation of R.C. 149.351 that allows the collection of a civil forfeiture against a government body of $1,000 per violation up to a maximum of $10,000 if a person is “aggrieved by the removal, destruction, mutilation, or transfer” of a public record without following a state prescribed process.

Judge Farmer cited the Supreme Court’s Rhodes v. New Philadelphia ruling that determined who can sue for damages when records are destroyed. In that case, Timothy Rhodes of Chillicothe filed numerous public records requests against several cities seeking 20 years of antiquated reel-to-reel “Dicataphone-Dictatape Logger” police dispatch recordings. Rhodes found New Philadelphia did not follow the process for erasing the old tapes and Rhodes sought damages for the destruction. In that case, the Tuscarawas Common Pleas Court ruled against Rhodes, but the Fifth District overturned the decision determining that Rhodes fit the description because “an aggrieved party is any member of the public who makes a lawful public records request and is denied those records.”

Using the Rhodes decision, the Fifth District ruled the damage award is only available to a person who had a public records request with the goal of accessing the public records, and that if the goal was to seek forfeiture, the requestor is not aggrieved.

In this case, the court labeled James Verhovec “a shill” for his uncle Ed Verhovec, who himself had filed similar public records requests in other jurisdictions. The court determined James Verhovec did not write the records request, but only signed his name to it, that he was not a resident of Dennison, and had no economic connection to Dennison.

“The trial court saw the ‘forest for the trees’ and grasped that (Verhovec’s) records request was not a legitimate request, but merely part of a scheme to find destroyed public records that could result in pecuniary gain,” Judge Farmer wrote.

The court also drew the connection between the Verhovecs and Rhodes. Both Ed Verhovec and Timothy Rhodes signed contracts with Cleveland Attorney Paul Cushion to file the records requests and Cushion would pay them between $1,000 and $4,000 for making the requests.

Judges William B. Hoffman and Patricia A. Delaney concurred in the decision.

State ex rel. Verhovec v. Dennison, 2014-Ohio-4847
Opinion: http://sc.ohio.gov/rod/docs/pdf/5/2014/2014-ohio-4848.pdf
Civil Appeal From: Tuscarawas County
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: October 30, 2014

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