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

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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

Certificate of Service 16

Appendix 17

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) 734-0001Dianne@einsteinlawoffice.comCounsel 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).

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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."

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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

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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

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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.

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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

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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

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"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,

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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

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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

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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

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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

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{¶ 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.

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{¶ 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

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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.

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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

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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

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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

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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.

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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

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{¶ 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

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{¶ 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,

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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

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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

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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

0.A142 - N9t?

Court Disposition

Case Number: 13AP000457

Case Style: DOUG HUNTER -VS- OHIO STATE BUREAUWORKERS COMPENSATION

Motion Tie Off Information:

1. Motion CMS Document Id: 13AP0004572 980000

Document Title: 04-23-2014-MOTION TO STRIKE

Disposition: 3200