State ex rel. Gannett Satellite Information Network v. Shirey

[This opinion has been published in Ohio Official Reports at 

78 Ohio St.3d 400

.]




THE STATE EX REL. GANNETT SATELLITE INFORMATION NETWORK, D.B.A. THE
            CINCINNATI ENQUIRER, v. SHIREY, CITY MANAGER, ET AL.
[Cite as State ex rel. Gannett Satellite Info. Network v. Shirey, 

1997-Ohio-206

.]
Mandamus requiring Cincinnati City Manager to permit petitioner access to
        records concerning information on applicants for safety director’s job—
        Writ denied when mandamus claim moot—Attorney fees granted, when.
       (No. 96-1165—Submitted March 18, 1997—Decided May 14, 1997.)
                                      IN MANDAMUS.
                                  __________________
        {¶ 1} In February 1996, the city of Cincinnati, through its city manager,
respondent John Shirey, contracted with a private consultant, respondent Hubert
Williams, d.b.a. The Police Foundation (“Williams”), to assist the city in hiring a
safety director. Under the contract, Williams agreed, among other things, to
evaluate applications, to arrange for and assist in interviews, and to provide Shirey
with a “short list” of final applicants. The agreement further provided that “[a]ll
applications and resumes shall become the sole property of the Consultant, and will
not be subject to public review.”
        {¶ 2} In accordance with the contract, Williams solicited applications for
the safety-director position. Williams assured applicants that any information
given would remain confidential. After receiving resumes and other records,
Williams initially reduced the number of finalists to twenty, and ultimately to eight.
Under his nonprofit corporation’s records retention policy, Williams discarded all
records relating to the rejected applicants except for their evaluation summaries.
Williams gave the final list of eight applicants and their resumes and supporting
documents to the city.
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       {¶ 3} In May 1996, a reporter employed by relator, Gannett Satellite
Information Network, d.b.a. The Cincinnati Enquirer (“Gannett”), requested that
Shirey provide access to certain records under Ohio’s Public Records Act, R.C.
149.43. Gannett requested access to “all documents” pertaining to applicants for
the safety director’s job, including names and resumes submitted. Shirey provided
Gannett with two documents related to the city’s recruiting efforts for safety-
director candidates. Shirey, however, denied Gannett’s request for other records
on the basis that they were in Williams’s possession, and that Williams had
designated the records as trade secrets. Shirey and Williams rejected Gannett’s
subsequent requests for these records.
       {¶ 4} Gannett then filed this action for a writ of mandamus to compel Shirey
and Williams to provide access to the requested records. The city issued a press
release disclosing the names of the eight finalists for safety director and gave
Gannett access to the finalists’ resumes. Shortly after our issuance of an alternative
writ, 

76 Ohio St.3d 1224

, 

669 N.E.2d 1148

, Williams provided Gannett with copies
of its lists of the top twenty and top eight safety-director candidates, resumes and
records submitted by the eight finalists, and Williams’s evaluation summaries of all
the applicants. The records produced by Williams represented all the then-existing
requested records. Resumes and supporting documents submitted by applicants
other than the eight finalists had been destroyed by Williams prior to Gannett’s
records requests.
       {¶ 5} The cause is now before this court for a consideration of the merits,
including Gannett’s request for attorney fees.
                             ____________________
       Graydon, Head & Ritchey, John C. Greiner, John A. Flanagan and R.
Kenneth Wellington II, for relator.
       Fay D. Dupuis, Cincinnati City Solicitor, and Karl P. Kadon, Deputy City
Solicitor, for respondent Shirey.



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                                January Term, 1997




       Wimer, Cutler & Pickering and Max O. Truitt, Jr., pro hac vice, for
respondent The Police Foundation.
                             ____________________
       Per Curiam.
                             R.C. 149.43; Mandamus
       {¶ 6} Gannett claims that it is entitled to a writ of mandamus compelling
Shirey and Williams to provide access to the requested records. Mandamus is the
appropriate remedy to compel compliance with Ohio’s Public Records Act, R.C.
149.43. State ex rel. Steckman v. Jackson (1994), 

70 Ohio St.3d 420, 426-427

, 

639 N.E.2d 83, 89

. R.C. 149.43 is to be construed liberally in favor of broad access,
and any doubt is to be resolved in favor of disclosure of public records. State ex
rel. Cincinnati Enquirer v. Hamilton Cty. (1996), 

75 Ohio St.3d 374, 376

, 

662 N.E.2d 334, 336

.
       {¶ 7} Williams contends that Gannett’s mandamus claim is moot because it
has now been provided copies of all the existing requested records. Generally,
provision of the requested records to the relator in a mandamus action brought
under R.C. 149.43 renders the mandamus claim moot. State ex rel. Findlay
Publishing Co. v. Schroeder (1996), 

76 Ohio St.3d 580, 581

, 

669 N.E.2d 835, 837

(relator’s mandamus action is moot as to records it had been provided); State ex rel.
Pennington v. Gundler (1996), 

75 Ohio St.3d 171, 172-173

, 

661 N.E.2d 1049, 1050-1051

 (person requesting records receives them only after mandamus action is
filed, thereby rendering mandamus claim moot); State ex rel. Mancini v. Ohio Bur.
of Motor Vehicles (1994), 

69 Ohio St.3d 486, 488

, 

633 N.E.2d 1126, 1128

; State
ex rel. Fant v. Sykes (1987), 

29 Ohio St.3d 18

, 29 OBR 236, 

504 N.E.2d 1114

.
       {¶ 8} Nevertheless, a mandamus action under R.C. 149.43 is not rendered
moot by the provision of the requested records if there exist important issues that
are capable of repetition, yet evading review. See, e.g., State ex rel. Margolius v.
Cleveland (1992), 

62 Ohio St.3d 456

, 

584 N.E.2d 665, 667, fn. 1

. Gannett asserts




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that the important issue here which is capable of repetition yet evading review is
whether the public has the right to know the names of candidates for public
positions when the government delegates part of the hiring process to a private
entity.
          {¶ 9} Gannett’s assertion, however, is meritless because we recently
resolved a substantially similar question. State ex rel. The Plain Dealer Publishing
Co. v. Cleveland (1996), 

75 Ohio St.3d 31

, 

661 N.E.2d 187

. Further, we may
address some of the issues raised in the context of Gannett’s request for attorney
fees. Therefore, we deny Gannett’s mandamus claim based on mootness.
                               Request for Attorney Fees
          {¶ 10} Gannett requests attorney fees. “A court may award attorney fees
pursuant to R.C. 149.43 where (1) a person makes a proper request for public
records pursuant to R.C. 149.43, (2) the custodian of the public records fails to
comply with the person’s request, (3) the requesting person files a mandamus action
pursuant to R.C. 149.43 to obtain copies of the records, and (4) the person receives
the requested public records only after the mandamus action is filed, thereby
rendering the claim for a writ of mandamus moot.” Pennington at syllabus. We
may thus exercise our discretion and award attorney fees if the four Pennington
factors are satisfied.
          {¶ 11} Gannett initially requests attorney fees from Shirey. First, it must be
determined whether Gannett made a proper request for public records under R.C.
149.43. In Plain Dealer, the court held that resumes of police-chief applicants
collected by a private executive-search firm retained by the city of Cleveland
constituted public records subject to disclosure under R.C. 149.43. Similarly, it is
evident here that the resumes and supporting documentation supplied by the safety-
director applicants to the private company hired by Cincinnati were public records.
          {¶ 12} But Shirey contends that Plain Dealer is inapposite because (1) the
agreement between Cincinnati and Williams specified that applications and



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                                   January Term, 1997




resumes were the property of Williams and not subject to public review, (2) Gannett
did not establish that Williams acted as Cincinnati’s agent or that Cincinnati was
able to either monitor Williams’s performance or have access to records in
Williams’s possession, and (3) Williams asserted that the records in his possession
were exempt trade secrets.
        {¶ 13} Shirey’s contentions are meritless for the following reasons. First,
the city’s contract with Williams and Williams’s promises of confidentiality to
applicants did not alter the public nature of resumes and documents submitted by
applicants for the safety-director position. Findlay Publishing Co., 

76 Ohio St.3d at 583

, 

669 N.E.2d at 838-839

 (requests of victim’s relatives to withhold coroner’s
suicide records do not alter the public nature of the records); State ex rel. Dispatch
Printing Co. v. Wells (1985), 

18 Ohio St.3d 382, 384

, 18 OBR 437, 439, 

481 N.E.2d 632, 634

 (contractual provision between city and employees cannot alter duty of
city to provide access to public records under R.C. 149.43); see State ex rel. Sun
Newspapers v. Westlake Bd. of Edn. (1991), 

76 Ohio App.3d 170, 173

, 

601 N.E.2d 173, 175

 (public entity cannot enter into enforceable promises of confidentiality
with respect to public records).
        {¶ 14} Second, even assuming that Gannett did not establish that Williams
acted as the city’s agent or that the relationship between the city and Williams
satisfied the tripartite test in State ex rel. Mazzaro v. Ferguson (1990), 

49 Ohio St.3d 37, 39

, 

550 N.E.2d 464, 467

, it is evident that, as in Plain Dealer, a public
official contracted with a private entity for a public purpose: to assist in the filling
of an important municipal position. In this regard, in Forum Publishing Co. v.
Fargo (N.D.1986), 

391 N.W.2d 169

, a case we cited with approval in Plain Dealer,

75 Ohio St.3d at 35

, 

661 N.E.2d at 191

, the North Dakota Supreme Court cogently
observed:
        “The City contends that even if these documents are subject to the open-
record law, PDI is an independent contractor and not an agent of the City, and the




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documents were in the possession of PDI. However, whether PDI is an independent
contractor or an agent is not relevant ***.
       “PDI was hired by the City to screen and evaluate candidates for a public
office. If the City had undertaken this task without hiring PDI, the applications
would clearly have been subject to the open-record law. We do not believe the
open-record law can be circumvented by the delegation of a public duty to a third
party, and these documents are not any less a public record simply because they
were in the possession of PDI.” 

Id. at 172

.
       {¶ 15} Finally, resumes and supporting documentation provided by the
safety-director applicants are not exempt trade secrets. See R.C. 1333.61(D); State
ex rel. Toledo Blade Co. v. Univ. of Toledo Found. (1992), 

65 Ohio St.3d 258, 264

,

602 N.E.2d 1159, 1163-1164

 (“The protection of competitive advantage in private,
not public, business underpins trade secret law.”).
       {¶ 16} Based on the foregoing, insofar as Gannett’s requests for records
included resumes and supporting documents of the safety-director applicants, its
requests were proper in that these records were not exempt from disclosure under
R.C. 149.43.
       {¶ 17} The remaining Pennington factors are also present as to Gannett’s
requests for records from Shirey. Shirey failed to comply with Gannett’s requests,
forcing Gannett to file this mandamus action. Following the institution of this
action, Shirey finally complied with the requests, although by that time some of the
requested resumes and supporting documents had been destroyed. Therefore,
pursuant to Pennington, we may exercise our discretion to consider whether an
attorney fees award is appropriate against Shirey.
       {¶ 18} Gannett must demonstrate a sufficient benefit to the public to
warrant an award of attorney fees, and we may also consider the reasonableness of
the custodian’s failure to comply, since attorney fees are regarded as punitive. State
ex rel. Multimedia, Inc. v. Snowden (1995), 

72 Ohio St.3d 141, 145

, 

647 N.E.2d 6

                                January Term, 1997




1374, 1379; State ex rel. The Warren Newspapers, inc. v. Hutson (1994), 

70 Ohio St.3d 619, 626

, 

640 N.E.2d 174, 180

; State ex rel. Beacon Journal Publishing Co.
v. Ohio Dept. of Health (1990), 

51 Ohio St.3d 1, 4

, 

553 N.E.2d 1345, 1347

.
       {¶ 19} Gannett has established a sufficient public benefit.        See Plain
Dealer, 

75 Ohio St.3d at 36-37

, 

661 N.E.2d at 192

, quoting Kenai v. Kenai
Peninsula Newspapers (Alaska 1982), 

642 P.2d 1316, 1324

 (“‘The qualifications
of the occupants of *** offices [with substantial discretionary authority] are of
legitimate public concern. *** It is not intuitively obvious that most well qualified
potential applicants for positions of authority in municipal governments will be
deterred by a public selection process ***.’”).
       {¶ 20} In addition, given the decisions in Plain Dealer and Dispatch
Printing, Shirey’s attempt to circumvent R.C. 149.43 by contracting with a private
company and his refusal to comply with Gannett’s requests were unreasonable and
unjustifiable. If we were to hold otherwise, governmental entities could conceal
information concerning the hiring of important public officials from the public by
merely delegating this uniquely public duty to a private entity. See White v. Clinton
Cty. Bd. of Commrs. (1996), 

76 Ohio St.3d 416, 419

, 

667 N.E.2d 1223, 1226

 (The
right of public to know, which underlies R.C. 149.43, includes not merely the right
to know a governmental body’s final decision on a matter, but the ways by which
those decisions were reached.); State ex rel. WHIO-TV-7 v. Lowe (1997), 

77 Ohio St.3d 350, 355

, 

673 N.E.2d 1360

, 1364 (“[T]he purpose of Ohio’s Public Records
Act, R.C. 149.43, is to expose government activity to public scrutiny, which is
absolutely essential to the proper working of a democracy.”). Consequently, we
award attorney fees to Gannett against Shirey and order Gannett’s counsel to submit
a bill and documentation in support of its request for attorney fees, in accordance
with the guidelines set forth in DR 2-106.
       {¶ 21} Gannett also requests attorney fees against Williams. Williams’s
business is a private nonprofit Washington, D.C. corporation composed of persons




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experienced in law enforcement and dedicated to the improvement of police forces.
Most of the records retained by Williams consisted of evaluation summaries created
by his corporation. There is an issue concerning whether these records, which differ
from the records (e.g., resumes) supplied by the applicants, constitute exempt trade
secrets. Further, the only request for records made by Gannett to Williams was
restricted to job criteria and copies of resumes, applications, and questionnaires
submitted by applicants and did not include evaluation summaries. Therefore, with
regard to the evaluation summaries, it is not evident either that Williams failed to
comply with Gannett’s request or that Williams lacked a reasonable basis to refuse
to comply.    Therefore, we deny Gannett’s request for attorney fees against
Williams.
       {¶ 22} Based on the foregoing, we deny the writ based on mootness, grant
Gannett’s request for attorney fees against Shirey, and deny Gannett’s request for
attorney fees against Williams.
                         Writ denied and request for attorney fees granted in part.
       MOYER, C.J., PFEIFER, COOK and LUNDBERG STRATTON, JJ., concur.
       DOUGLAS, RESNICK and F.E. SWEENEY, JJ., CONCUR IN JUDGMENT ONLY.
                              __________________
       DOUGLAS, J., concurring in judgment only.
       {¶ 23} While the majority continues, in this decision, to rely on a test for
awarding attorney fees that has no basis in the statute, the majority nevertheless
does reach the proper ultimate conclusion and, accordingly, I concur in the
judgment.
       RESNICK and F.E. SWEENEY, JJ., concur in the foregoing opinion.
                              __________________




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