Ohio Supreme Court Issues Landmark Decisions Regarding Attorney’s Fees in Public Records Act Actions
The Ohio Supreme Court has significantly limited the ability of plaintiffs in public records mandamus actions to collect their attorney's fees from Ohio's public entities. On February 19, 2014, in two 6-1 decisions, the Court held that if a public entity releases the disputed records before the trial court issues a final order in the case, plaintiffs cannot obtain their attorney's fees. See State ex rel. DiFranco v. City of South Euclid, 2014-Ohio-538 (DiFranco I); State ex rel. DiFranco v. City of South Euclid, 2014-Ohio-539 (DiFranco II).
Essentially, in these two related cases, the city had simply failed to respond to a request for a public record. An internal "communications breakdown" prevented the request from reaching the responsible person. As soon as the city remembered the request (from getting served with a lawsuit), it immediately produced the records.
Having received the records, the plaintiff then sought her attorney's fees. The Court rejected the request. The reasoning is the most important part of the cases.
The Court reasoned that the 2007 changes to Ohio Rev. Code § 149.43 mandated no award under these circumstances. The changes added the following provisions to the statute: "[i]f the court renders a judgment that orders the public office . . . to comply with division (B) of this section, the court may award reasonable attorney's fees . . . ." Ohio Rev. Code § 149.43(C)(2)(b) (emphasis added).
The next sentence provides: "The court shall award reasonable attorney's fees . . . when either of the following applies: (i)The public office . . . failed to respond . . . to the public records request in accordance with the time allowed . . . ."; or "(ii)The public office . . . promised to permit the relator to . . . receive copies of the public records requested within a specified period of time but failed to fulfill that promise within that specified period of time." Id.
Before this specific language was added to the statute, Ohio courts had used the 'public benefit test' to determine whether attorney's fees were warranted. Now, the Supreme Court held, the statute specifically conditions all attorney-fee awards on the court's having issued a judgment ordering compliance with the public records law.
These two cases indicate that if the records are produced before a judgment is issued, the mandamus portion of a public records action is moot; the court will not have to order compliance with the public records statute. In such a case, the condition precedent to obtain a fee award—an order requiring production of the records—no longer exists.
The court explained that at least two policy reasons support this interpretation. First, it encourages requesters to contact public entities to remind them of the request before filing lawsuit (in turn, saving taxpayer dollars). DiFranco II, ¶ 19. Second, "this interpretation reins in attorneys." DiFranco II, ¶ 20. In other words, the statute's purpose was to ensure compliance with the Public Records Act, "not to ensure a livelihood for attorneys who scour the state hoping for a failure to respond." Id.
Had Ms. DiFranco simply reminded South Euclid that she had an outstanding public records request (as had been her prior practice), she would have received her records, and this case might never had made it to court. Only time will tell whether the Legislature will change the law, in light of this new interpretation. In the meantime, however, requesters now have an incentive to resolve public record disputes informally, prior to filing a lawsuit.