As Introduced

129th General Assembly Regular Session 2011-2012

H. B. No. 616

Representatives Goyal, Lundy 

Cosponsors: Representatives Murray, Pillich 

---

A BILL

To amend section 149.351 of the Revised Code to make

1

changes to the statute authorizing injunctive

2

relief and liquidated damages to compensate for

3

harm caused by the destruction of public records,

4

and to designate the Act as "The Public Corruption

5

Prosecution Act."

6

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:

Section 1. That section 149.351 of the Revised Code be	7
amended to read as follows:	8

Sec. 149.351.  (A) All records are the property of the public	9
office concerned and shall not be removed, destroyed, mutilated,	10
transferred, or otherwise damaged or disposed of, in whole or in	11
part, except as provided by law or under the rules adopted by the	12
records commissions provided for under sections 149.38 to 149.42	13
of the Revised Code or under the records programs established by	14
the boards of trustees of state-supported institutions of higher	15
education under section 149.33 of the Revised Code. Those records	16
shall be delivered by outgoing officials and employees to their	17
successors and shall not be otherwise removed, destroyed,	18
mutilated, or transferred unlawfully.	19

(B) Any person who is aggrieved byIn the event of the	20
removal, destruction, mutilation, or transfer of, or by other	21
damage to or disposition of a record in violation of division (A)	22
of this section, or bythe threat of such removal, destruction,	23
mutilation, transfer, or other damage to or disposition of such a	24
record, any person may commence either or both of the following in	25
the court of common pleas of the county in which division (A) of	26
this section allegedly was violated or is threatened to be	27
violated:	28

(1) A civil action for injunctive relief to compel compliance	29
with division (A) of this section, and to obtain an award of the	30
reasonable attorney's fees incurred by the person in the civil	31
action;	32

(2) A civil action to recover a forfeitureliquidated damages	33
to compensate for the harm caused by the violation in the amount	34
of one thousand dollars for each violation, but not to exceed a	35
cumulative total of tenone hundred thousand dollars, regardless	36
of the number of violations, and to obtain an award of the	37
reasonable attorney's fees incurred by the person in the civil	38
action not to exceed the forfeiture amount recovered.	39

(C)(1) A person is not aggrieved by a violation of division	40
(A) of this section if clear and convincing evidence shows that	41
the request for a record was contrived as a pretext to create	42
potential liability under this section. The commencement of a	43
civil action under division (B) of this section waives any right	44
under this chapter to decline to divulge the purpose for	45
requesting the record, but only to the extent needed to evaluate	46
whether the request was contrived as a pretext to create potential	47
liability under this section.	48

(2) In a civil action under division (B) of this section, if	49
clear and convincing evidence shows that the request for a record	50
was a pretext to create potential liability under this section,	51
the court may award reasonable attorney's fees to any defendant or	52
defendants in the actionThe court, in its discretion, may limit	53
the cumulative total amount of liquidated damages in an action	54
under division (B)(2) of this section to ten thousand dollars,	55
regardless of the number of violations, if the court determines	56
both of the following:	57

(1) That, based on the ordinary application of statutory law	58
and case law as it existed at the time of violation that was the	59
basis of the action, a well-informed public official or employee	60
reasonably would believe that the public office concerned was not	61
violating this section; and	62

(2) That a well-informed public official or employee	63
reasonably would believe that the conduct that was the basis of	64
the action would serve the public policy that underlies the	65
authority that is asserted as permitting that conduct.	66

(D) If clear and convincing evidence demonstrates that the	67
party bringing an action under division (B) of this section was	68
not harmed by the violation at issue and had no particularized	69
reason for seeking access to or preservation of the record or	70
records at issue, the court shall order that seventy-five per cent	71
of the total amount of any liquidated damages awarded in the	72
action shall be awarded to the Ohio historical society, and that	73
only twenty-five per cent of the total of any liquidated damages	74
awarded in the action shall be awarded to the party bringing the	75
action. Nothing in this division shall affect the court's award of	76
court costs and reasonable attorney's fees under this section.	77

(E) Once a person recovers a forfeitureliquidated damages in	78
a civil action commenced under division (B)(2) of this section, no	79
other person may recover a forfeitureliquidated damages under	80
that division for a violation of division (A) of this section	81
involving the same record, regardless of the number of persons	82
aggrieved by a violation of division (A) of this section or the	83
number of civil actions commenced under this section.	84

(E)(F) A civil action for injunctive relief under division	85
(B)(1) of this section or a civil action to recover a forfeiture	86
liquidated damages under division (B)(2) of this section shall be	87
commenced within five years after the day in which division (A)	88
of this section was allegedly violated or was threatened to be	89
violatedone year of the date when a violation is discovered or	90
reasonably should have been discovered by the party bringing the	91
action.	92

(G) Nothing in this section shall be construed to preclude	93
any parallel or additional remedy available under any statute or	94
the common law based on the removal, destruction, mutilation, or	95
transfer of a record.	96

Section 2. That existing section 149.351 of the Revised Code	97
is hereby repealed.	98

Section 3. This act shall be known as "The Public Corruption	99
Prosecution Act."	100