Civic Accountability -- Honesty in Local Government IV

[Lori Allen _]

Ms. Madigan is not the only person to be in possession of these documents. I believe this is just another BS story that they hope we will believe. I am stunned by the fact that it appears that the judges are allowing the city administration to fill records requests with redacted documents.

[Mark Kindt]

I concur with Ms. Allen's comment on this point for several reasons.

It seems inconceivable to me as a former government attorney, that the City of Lakewood would not be keeping copies of records provided to its public board members on one of its most significant community assets, particularly since the City of Lakewood was providing substantial support in terms of its EMS facilities.

Did the City of Lakewood comply with its own written record retention policy when these records were shredded or otherwise disposed of? Do destruction certificates exist? Or other records that document the destruction?

We can all take cold comfort in the fact that it took two teams of lawyers working for more than a year to determine that the city administration didn't keep its LHA binders.

[Kate McCarthy]

Destroyed and/or Missing Public Documents

I have attached two pages from the City of Lakewood brief recently filed in the Essi public records request case.

Keep in mind that this is the City's own description of these records. The Ex Officio (public) board members of the Lakewood Hospital Association shredded copies of their LHA documents or they otherwise went missing.

You be the judge:

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City of Lakewood Brief in Essius Action--Highlighted Version page 10.jpg

City of Lakewood Brief in Essius Action--Highlighted Version page 11.jpg

Has Tom Bullock been deposed in this case? As a board member he should also have access to these documents.

[Bridget Conant]

We need more than a deposition - we need a criminal investigation!

[Mark Kindt]

Let's think our way through this excerpt from the City of Lakewood's recent brief in the Essi public records access case.

Clearly, the public board members of the Lakewood Hospital Association live in a different professional universe than you and I.

Imagine you are liquidating a major facility or business over the course of several years in your professional life. Every quarter this facility or business produces quarterly reports and other informational documents. You are on the board. You receive documents both digitally and in hard-copy.

Let's just say that this is one of the biggest deals you are ever going to do.

Do you keep those reports or do you misplace them?

Obviously, you keep them. Why? Because you have a written record-retention policy. This is just how this is done in any organization in the real world. Trust your own personal professional experience on this.

In my opinion, the narrative contained in this portion of the City's brief is simply too implausible to be true.

[Mark Kindt]

For completeness sake, here is a copy of the City of Lakewood brief.

[Mark Kindt]

The City Had a Duty to Preserve These Documents

The City of Lakewood has a legal duty to preserve documents that might be related to a pending legal claim.

The City's duty of preservation kicked-in as soon it first learned of the Taxpayer lawsuit.

The relevant individuals in possession of such documents must be advised immediately of their duty to preserve them.

A duty of preservation also kicked-in when Mr. Essi sent his first public record request for the LHA documents in the possession of the public board members.

Finally, the City had a duty of preservation related to its own written record retention policy.

Are we really supposed to believe that the City's official Custodian of Records lost/misplaced the LHA Books/Binders?

From three different public LHA board members?

[Bridget Conant]

They had every reason to believe that those documents would be part of the litigation they were involved in. They had a legal duty to preserve those documents and records.

That is SPOILATION and it is illegal.

Certainly, if Kevin Butler was the top notch attorney he thinks he is, he would have known this basic legal principle and advised his cohorts of such.

This indicates a wanton disregard for the law. He should face disbarment.

[Mark Kindt]

Ms. Conant is correct that breaches of the duty to preserve documents can result in claims of spoliation of evidence.

Spoliation of documents that are the subject of public records requests would be particularly offensive since such spoliation strikes at the very heart of the Ohio public records access statute.

Spoliation guts the basic purpose of the statute.

If such spoliation is determined to have occurred during the course of a case, Ohio courts have powers of sanction that can be used against the party that has committed the spoliation.

Under Ohio law, there is also an independent cause of action for spoliation that can be brought by a party who has been injured by such conduct.

Search: Zubalake v. UBS Warburg. This will provide you with any interesting entry point into the spoliation of digital/electronic records.

[Mark Kindt]

I operate on the assumption that a public document means what it says until another document or other evidence casts doubt upon it.

Here the City of Lakewood tells the Court that some documents have been shredded and that other similar documents can no longer be found. I take that at face value.

Whether a claim of spoliation is valid will depend upon all of the facts and I simply do not have a sufficient universe of surrounding facts to make a determination one way or another.

[Mark Kindt]

Now, let's take a look at another argument from the City of Lakewood's recent brief in the Essi public records access case:

[Mark Kindt]

From this we can see that the City of Lakewood only conducted a public records search of its email archive (inclusive of email attachments).

It did not search its other file locations on its network!

That means the City did not search files in non-email server file directories or file directories on personal computer or laptop drives.

I'm sure that many of you know more about this than I do, but we've all been working with file directories on network servers and PCs/laptops for a long time now.

We each know that a mere email search would miss the majority of routine work product created each day.

The City of Lakewood is telling us that relevant documents were shredded and missing and that they did not search those locations where most of the documents would likely be found!

And, the City did not commence its "incomplete" search until after it had been ordered to so by the Court.

[Mark Kindt]

For completeness sake, here is the full affidavit.

From this, we see that the City had a fast and robust search tool available to it. We also know that the City did NOT use this tool until after it had received a Court order.

[Stan Austin]

Back to an overview: Are incompetence and sabotage riding along side by side? Is this a premeditated linkage or is it accidental negligence?

[Mark Kindt]

Mr. Austin, I will address your question/observation in my next series of posts. May all have a Happy Thanksgiving holiday!