Oral arguments are scheduled in Ohio’s Fifth District Court of Appeals in the battle to overturn the Ohio Court of Claim’s decision that the notes in the investigation of the Liberty Township’s former fire chief are public documents.
“It’s a precedent-setting case,” said Jim Hurt, Liberty Township resident and one of the appellees in the case. “The judges might want to hear the oral arguments to clear up or straighten out any facts in the case.”
Hurt has commented before to The Gazette that this is the first case to go before the Ohio Court of Appeals. “We are the first and the only one, at least for now,” he said.
Arguments are scheduled August 29, 1 p.m. in the Licking County Courthouse in Newark, Ohio.
The investigatory notes in question are those of Cincinnati attorney Douglas Duckett hired by Liberty Township to investigate the conduct of former Fire Chief Tim Jensen in 2016.
Jensen was never found guilty of any wrongdoing after a lengthy investigation. He subsequently accepted a position as fire prevention officer as part of a settlement with the township in the fall of 2016.
Thomas O’Brien was hired by the township as the new fire chief Feb. 22, 2017.
Township attorney Stephanie Schoolcraft, of Fishel, Hass, Kim, Albrecht; filed a reply brief July 7 with the appellate court.
The conclusion of the township’s brief claims both the Special Master and the Court of Claims erred three times when it found Duckett was private individual subject to Ohio’s Public Records Act; his personal notes were public records; and determined that the notes were public records because his personal notes were not kept by the township.
“Therefore, appellant, Liberty Township, asks this court to to reverse the judgement of the Court of Claims under Rule 12(B) of the Ohio Appellate Rules of Appellate Procedure and enter judgement that Duckett’s personal notes are not public records subject to disclosure,” the township’s brief states.
Schoolcraft filed an appeal with the Fifth District Court June 5 asking the court to review “whether the personal notes of a non-employee private citizen appointed pursuant to the Ohio Revised Code are public records even though the personal notes were not provided to, maintained, or used by … Liberty Township.”
Township residents Hurt and Mark Gerber filed briefs with the court of appeals June 26 asking the higher court to affirm the Court of Claims’ judgment that Duckett’s notes are public documents.
The conclusion of Gerber and Hurt’s brief states, “Clearly, the records are public, and meet each of the criteria for their release as public records. They were created as part of a governmental function and paid for with public funds. The Special Master and Court of Claims’ found the notes to be public records subject to disclosure, following an exhaustive review of the record and applicable case law.”
Gerber and Hurt filed with the Court of Claims Nov. 21 against the township after being denied their request for the notes. Both residents have maintained that the Duckett’s notes are public records.
“Based on the Special Master’s findings, Duckett satisfies at least three of the four factors,” the OCOG’s conclusion states. “First he was appointed to perform a government function … . Second, his investigation was funded by the township. Third, appellant was heavily involved with Duckett’s activities.”
The Ohio Township Association and the Ohio Public Employer Labor Relations Association filed briefs with the court June 5 supporting Liberty Township’s appeal to overturn the court’s decision on the notes.
The OTA motion states, “(The Ohio Court of Claims’) decision will directly affect the ability of Ohio’s townships to have thorough, objective investigations conducted of township personnel.”
The OPELRA motion argues public offices should be able to “interview witnesses and review documents” in an investigation “without every related note or scrap of paper” being disclosed.
D. Anthony Botkin may be reached at 740-413-0902 or on Twitter @dabotkin.