Court Affirms Award of Statutory Damages, Attorney Fees In Public Records Case
2008-2471. State ex rel. Doe v. Smith, Slip Opinion No. 2009-Ohio-4149.
Clermont App. No. CA2008-01-006. Judgment affirmed in part and reversed in part, and cross-appeal dismissed in part.
Moyer, C.J., and Lundberg Stratton, O'Connor, O'Donnell, Lanzinger, and Cupp, JJ., concur.
Pfeifer, J., dissents and would reverse the judgment of the court of appeals.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2009/2009-Ohio-4149.pdf 
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(Aug. 25, 2009) In a case interpreting 2007 amendments to state public records statutes, the Supreme Court of Ohio today affirmed a judgment of the 12th District Court of Appeals granting a writ of mandamus and awarding $1,000 in statutory damages and $2,000 in attorney fees to a citizen whose request to view public records was improperly rejected without explanation by a township police chief.
In a 6-1 per curiam opinion, the Court also held that the 12th District did not abuse its discretion in limiting the award of attorney fees in the case to $2,000 despite the petitioner’s request for a larger amount; and reversed the portion of the court of appeals judgment awarding the citizen litigation expenses in excess of the court filing fee as costs.
The case involved a December 2006 incident in which a summary of local police reports in the Clermont Community Journal newspaper included a report that Pierce Township police had responded to a report of a fire set in a bedroom at a residence on East Legendary Run, and that a 14-year-old boy had been arrested or cited for aggravated arson in the case. Eleven months later, on Nov. 6, 2007, a deputy clerk of the Clermont County Juvenile Court sent a letter to Pierce Township police chief James T. Smith informing the department that the juvenile court had sealed the records involving the juvenile who was allegedly involved in the arson incident. The letter advised Smith that, pursuant to R.C. 2151.356, all records in the case including fingerprints, photos and offense reports were to be sent to the juvenile court, the juvenile’s name was to be deleted from any indexes or journals maintained by the department, and that from the date of the letter forward “no information shall be released regarding this individual or the circumstances of the above charge(s).”
On Nov. 29, 2007, a township resident identified as John Doe filed a request with the police department seeking access to any incident or arrest report and any other records in the department’s possession involving the East Legendary Run arson incident on Dec. 4, 2006. The next day, although he was still in possession of the requested records, Smith responded to Doe’s request by stating that “There is no information available.” Shortly thereafter, Smith sent the pertinent records to the juvenile court pursuant to the court’s instructions, keeping copies from which all information identifying the juvenile had been redacted.
Doe filed suit in the 12th District Court of Appeals, seeking a writ of mandamus ordering Smith and the Pierce Township Board of Trustees to comply with the state public records act by providing him with copies of the requested records. Doe’s complaint also sought statutory damages and an award of attorney fees and costs. Smith filed responsive pleadings, arguing that he had not violated the public records act because he was under a court order not to release any information or records relating to the arson case. Both sides filed motions for summary judgment.
The court of appeals granted summary judgment in favor of Doe, holding that although it was reasonable for Smith to have believed that the juvenile court’s letter relieved him of any duty to disclose the requested records, he nevertheless had violated the public records act by failing to provide Doe with a sufficient explanation, including a citation to legal authority, for the denial. The court of appeals issued a writ compelling the township to produce “all records required by law,” and an explanation, including legal authority, for all records not produced in whole or in part. The court also awarded Doe statutory damages of $1,000, and instructed him that he could submit documentation in support of an award of attorney fees.
Doe submitted a request for reimbursement of $16,875 in attorney fees and $1,033.84 in litigation expenses. The court of appeals awarded Doe $2,000 in attorney fees and $500 in litigation expenses. Doe appealed the amounts of his awards for attorney fees and costs. Smith and the township trustees cross-appealed, arguing that the 12th District had erred in issuing a writ of mandamus and in making any award of attorney fees or costs to Doe. The Supreme Court agreed to review both sides’ allegations of error.
In today’s decision, the Court dismissed Smith’s appeal of the mandamus writ as moot, noting that the township had subsequently provided Doe with a legally sufficient response to his records request, and that “In general, providing the requested records to the relator in a public-records mandamus case renders the mandamus claim moot.” With regard to Smith’s challenge of the statutory damage award, the Court wrote: “The court of appeals did not err in awarding appellant $1,000 in statutory damages for Smith’s failure to provide a sufficient explanation for his denial of the records request until he and the board filed their summary-judgment motion referencing the juvenile court’s letter to the police department. R.C. 149.43(C)(1) provides for statutory damages of $100 for each business day during which the public office failed to comply with the public-records law, up to a maximum of $1,000. Over ten business days elapsed from the date the mandamus case was filed before appellant received a statutorily sufficient explanation, and the $1,000 maximum award represented ‘compensation for injury arising from lost use of the requested information’ …”
The Court disagreed with both sides’ allegations that the 12th District erred in awarding Doe $2,000 in attorney fees. It rejected arguments by Doe that 2007 amendments to the public records act made a full award of attorney fees mandatory in all successful public records actions. The decision pointed to specific language in the amended statute making attorney fee awards mandatory only in cases where a public office makes no response at all to a records request, or where the office promises to disclose records by a specified deadline and fails to do so. Since neither of those provisions applied to this case, the court ruled that the 12th District had discretion to award or deny attorney fees, and to set the amount of such an award according to the facts of the case.
The Court wrote: “(W)e hold that the court of appeals did not act unreasonably, arbitrarily, or unconscionably in awarding appellant only $2,000 in attorney fees. First, although Smith’s response to appellant’s request failed to comply with R.C. 149.43(B), by the time Smith and the board submitted their summary-judgment motion, they had provided a statutorily sufficient reason for the denial of the request. As the court of appeals found, the minimal public benefit from appellant’s public-records action had been achieved at that point. Second, Smith acted reasonably and in good faith in refusing appellant’s records request based on the advice of counsel and the juvenile court’s letter instructing the police department not to release information concerning the juvenile or the circumstances of the charges against the juvenile. The letter was sufficient to compel the police chief
to comply with the confidentiality requirements of an apparent juvenile-court sealing order. Third, a well-informed public office reasonably would believe that its refusal of appellant’s records request
would serve the public policy that underlies a juvenile-court sealing order. Fourth, as the court of appeals determined, a reduction in the requested fee award was further justified because attorney Hartman’s hourly rate of $250 was ‘at the very top of the acceptable range for similar legal services in [the] area’ and he ‘charged the same hourly rate for clerical and ministerial duties such as drafting notices of and scheduling depositions.’”
“To the extent that Smith and the board contend in their cross-appeal that the court of appeals erred in awarding any attorney fees to appellant, they also have not established an abuse of discretion. Smith’s response that there was ‘no information available’ to appellant’s records request violated R.C. 149.43(B)(3) because he did not give appellant ‘an explanation, including legal authority, setting forth why the request was denied.’ As the court of appeals properly observed, ‘[h]ad Smith complied with the statute and advised [appellant] that the charges had been sealed by the Clermont County Juvenile Court, and that he had been instructed to send all records and related information to the court, the matter could have been further pursued by relator. A proper response may well have rendered the present litigation unnecessary.’ The minimal public benefit achieved by the mandamus case on this point justified the award of minimal attorney fees by the court of appeals. Therefore, the court did not abuse its discretion in awarding appellant $2,000 in attorney fees.”
The majority opinion was joined by Chief Justice Thomas J. Moyer and Justices Evelyn Lundberg Stratton, Maureen O’Connor, Terrence O’Donnell, Judith Ann Lanzinger and Robert R. Cupp. Justice Paul E. Pfeifer dissented, stating that he would reverse the judgment of the court of appeals.
Contacts
Curt C. Hartman, 513.752.8800, for John Doe.
Robert J. Surdyk, 937.222.2333, for Chief James Smith & Pierce Township Board of Trustees.