Appeals Court Must Reconsider Damages in Public Records Case
But Attorneys’ Fees Are Barred in this Case and Another Involving Same Requestor
The Supreme Court of Ohio today ordered an appeals court to determine the amount of damages to award to a woman who waited two months for the city of South Euclid to respond to a public-records request and eight months to have the records provided in their entirety.
The court determined, however, that the woman is ineligible under state law to be compensated for her attorney fees in this matter and in a separate public-records case in which she waited six months for the city to fulfill her request.
In the first case, Emilie DiFranco sent a request in October 2011 for nine categories of public records to South Euclid’s city council clerk, who serves as the city’s records custodian. The city did not respond in any way to DiFranco between October 14, the day her certified-mail request arrived in the city’s offices, and December 16, when she filed a writ of mandamus in the Eighth District Court of Appeals. (A writ of mandamus asks a court to compel a government body or lower court to perform its duty, in this case to force the city to produce the records.)
On December 20, the clerk provided DiFranco a set of documents. The city then asked the Eighth District to dismiss the case because they had provided the records, and the city claimed the delay was caused by an internal problem processing the mail.
However, several weeks later, DiFranco submitted an affidavit from an accountant who concluded that the city must have certain records that it had not provided to DiFranco in December. In July 2012, the Eighth District ordered the city to produce any outstanding documents, which the city responded that it had done on June 18.
The Eighth District issued a decision in September 2012 dismissing the writ because the records had been provided. The court also declined to award DiFranco any statutory damages or attorneys fees, stating that DiFranco had not established the benefit to the public.
DiFranco appealed the decision on the damages and fees to the Ohio Supreme Court.
The Supreme Court ruled unanimously that DiFranco is entitled to damages under the state’s public records law because the city took an unreasonable amount of time to respond to her request.
The court explained that Ohio’s public-records law (R.C. 149.43) requires requested public records to be promptly prepared and made available. The lack of any response from the city for more than two months violated the city’s obligation under the law to respond to the inquiry within a reasonable amount of time, the court stated in its per curiam (not authored by a specific justice) opinion.
The violation triggers the possibility of damages based on the statute, which imposes $100 per business day that the public office did not comply with its obligation, up to a $1,000 maximum award. Noting that some of the documents in this case were not provided until eight months after the original request, the court stated that DiFranco may qualify for the maximum amount. However, the court explained that the appeals court must calculate the number of days the city was noncompliant and determine whether any of the statute’s reductions apply in the case.
The court concluded that the Eighth District erred when it applied the public benefits test, based on a 2004 Ohio Supreme Court decision interpreting an earlier version of the public-records law, to DiFranco’s claim for damages.
As far as whether DiFranco was entitled to attorney fees, the Supreme Court voted 6-1 that the statute only allows such compensation when a court has to order a public office to produce the requested records. In this case, the records were provided to DiFranco before the appellate court decided the case.
Joining the court’s six-person majority on the attorney fee decision were Chief Justice Maureen O’Connor and Justices Paul E. Pfeifer, Terrence O’Donnell, Judith Ann Lanzinger, Judith L. French, and William M. O’Neill. Justice Sharon L. Kennedy dissented on this issue.
In a second appeal from DiFranco requesting attorney fees in a different public-records case, the court today, in the same 6-1 vote, denied attorney fees for the same reasons.
In the second case, DiFranco sent a different public-records request to the city of South Euclid in July 2011. The clerk responded to her five days later, informing her that he was working on the request with another department. However, the city did not complete the request for six months. In January 2012, she again filed a complaint in the Eighth District, and the city provided the records two days after.
Her writ was then moot because the city produced the records, but DiFranco argued for attorney fees. The Eighth District denied her request, and she appealed to the Supreme Court.
In both cases, the court noted that it is affirming the appeals court denial of the award of attorney fees, but on a different basis – the factors prescribed in the statute. After the public-records law was amended in 2007, it specified when a court may award reasonable attorney fees and when it must award the fees. The court stated that the public-benefit test used by the Eighth District applies to discretionary awards, but does not apply to mandatory awards. In this case, DiFranco requested fee reimbursement under the mandatory provision in the law. In interpreting the statute, though, the court still determined she was ineligible for attorney fees. The court concluded that because there was no court judgment ordering the city to produce the requested documents in either case (because they had already been provided), DiFranco was ineligible for attorney fees.
While Justice Kennedy concurred with the court in the first case on the damages issue, she dissented in both cases from the court’s reasoning regarding attorney fees.
“[T]he two types of fees, discretionary and mandatory, are described in two separate sentences [in the statute],” she wrote in the first case. “This indicates that they are to be interpreted separately; discretionary fees are to be considered when the court has had to order a party to produce records, but mandatory fees are to be imposed on the satisfaction of one of the two conditions in (C)(2)(b)(i) or (ii), regardless of whether the court has had to order production. If the General Assembly had meant the ‘if’ clause to apply to mandatory fees, it would have used one sentence to describe both types of fees, or it would have found other means to express a conjunctive approach to the two types of fees.”
She added that the majority view defeats the purpose of the statute to ensure an award of attorney fees when a public office takes an unreasonable amount of time to produce public records.
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