State ex rel. Pennington v. Gundler

[This opinion has been published in Ohio Official Reports at 

75 Ohio St.3d 171

.]




      THE STATE EX REL. PENNINGTON, APPELLANT, v. GUNDLER, CLERK,
                                        APPELLEE.
          [Cite as State ex rel. Pennington v. Gundler, 

1996-Ohio-161

.]
Public records—Party seeking public records entitled to award of attorney fees
        where custodian of public records fails to comply with a proper request
        under R.C. 149.43 and complies only after a mandamus action is filed—
        Award of attorney fees under R.C. 149.43(C) is mandatory.
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. (State ex rel. Toledo Blade Co. v.
        Northwood [1991], 

58 Ohio St.3d 213

, 

569 N.E.2d 904

, overruled.)
    (No. 94-1658—Submitted September 12, 1995—Decided March 4, 1996.)
    APPEAL from the Court of Appeals for Butler County, No. CA93-09-0172.
                                  __________________
        {¶ 1} Appellant, Kathy Pennington, was the defendant in a case brought in
the Hamilton Municipal Court, Small Claims Division. In August 1993, Thomas
N. Carroll, the owner of an independent paralegal service retained by Pennington’s
counsel, went to the office of the Clerk of the Hamilton Municipal Court to collect
certified copies of Pennington’s case file.
        {¶ 2} Deputy Clerk Cloud refused to give Carroll the requested documents.
Carroll reminded the deputy clerk that the documents sought were public records,
but the deputy clerk responded by stating that she would not give Carroll anything
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until she talked to Pennington’s counsel. The deputy clerk then tried to place a
telephone call to the attorney. The deputy clerk left a message on an answering
machine stating that she could not give the attorney’s representative any documents
until the attorney returned her earlier call.
        {¶ 3} In response to Carroll’s request for a written explanation for her
refusal to copy the public records, the deputy clerk typed out a note stating that she
needed to discuss the status of the case with the attorney first. Carroll left the
clerk’s office without the requested public records.
        {¶ 4} On September 2, 1993, Pennington filed a mandamus action in the
First District Court of Appeals seeking an order compelling the Clerk of the
Hamilton Municipal Court to provide her certified copies of the docket sheet and
every other paper filed in her case and requesting attorney fees. The clerk,
predecessor in office of Maria Gundler, appellee, filed an answer attaching copies
of the requested records and also mailed certified copies of these records to
Pennington’s counsel. Pennington conceded in the court of appeals that the clerk’s
production of the records rendered her claim for a writ a mandamus moot.
        {¶ 5} The court of appeals denied Pennington’s request for attorney fees
based upon State ex rel. Toledo Blade Co. v. Northwood (1991), 

58 Ohio St.3d 213

,

569 N.E.2d 904

.
        {¶ 6} The cause is now before this court upon an appeal as of right.
                                __________________
        John J. Mueller, for appellant.
        Hillary G. Miller, Hamilton Assistant Director of Law, for appellee.
                                __________________
        MOYER, C.J.
        {¶ 7} The issue presented in this appeal is whether a party seeking public
records is entitled to an award of attorney fees where the custodian of the public
records initially fails to comply with a proper request made pursuant to Ohio Public




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Records Act, R.C. 149.43, then complies with the request in response to a
mandamus action.
        {¶ 8} Pennington concedes that the clerk’s production of the records
rendered her prayer for mandamus moot, but contends that she is entitled to attorney
fees under R.C. 149.43(C). It is not and cannot be disputed that the records
requested by Pennington are public records and should have been given to the agent
of Pennington’s lawyer upon his request for the records. R.C. 1901.31(E).
        {¶ 9} Ohio law generally requires explicit statutory authorization or a
finding of conduct that amounts to bad faith in order for a prevailing party to
recover attorney fees. See, e.g., Vance v. Roedersheimer (1992), 

64 Ohio St.3d 552, 556

, 

597 N.E.2d 153, 156

; State ex rel. Caspar v. Dayton (1990), 

53 Ohio St.3d 16, 20

, 

558 N.E.2d 49, 53

. R.C. 149.43(C) provides the explicit statutory
authorization for the award of attorney fees.
        {¶ 10} R.C. 149.43(C) provides:
        “If a person allegedly is aggrieved by the failure of a governmental unit to
promptly prepare a public record and to make it available to the person for
inspection in accordance with division (B) of this section, or if a person who has
requested a copy of a public record allegedly is aggrieved by the failure of a person
responsible for it to make a copy available to the person in accordance with division
(B) of this section, the person allegedly aggrieved may commence a mandamus
action to obtain a judgment that orders the governmental unit or the person
responsible for the public record to comply with division (B) of this section and that
awards reasonable attorney’s fees to the person that instituted the mandamus
action. ***” (Emphasis added.)
        {¶ 11} It is well established that “‘[i]n construing a statute, a court’s
paramount concern is the legislative intent in enacting the statute.           ***   In
determining legislative intent, the court first looks to the language in the statute and
the purpose to be accomplished.’” State ex rel. Carter v. Wilkinson (1994), 

70 Ohio 3

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St.3d 65, 66, 

637 N.E.2d 1, 2

, quoting State v. S.R. (1992), 

63 Ohio St.3d 590

, 594-
595, 

589 N.E.2d 1319, 1323

. It is equally well settled that words used in a statute
are to be taken in their usual, normal and customary meaning. R.C. 1.42. Further,
absent ambiguity, the court must give effect to the plain meaning of a statute. State
v. Waddell (1995), 

71 Ohio St.3d 630, 631

, 

646 N.E.2d 821, 822

.
       {¶ 12} In State ex rel Fox v. Cuyahoga Cty. Hosp. Sys. (1988), 

39 Ohio St.3d 108

, 

529 N.E.2d 443

, we settled the issue of whether the awarding of attorney
fees to a party who files a complaint pursuant to R.C. 149.43 is mandatory.
Paragraph two of the syllabus states succinctly and clearly, “The award of attorney
fees under R.C. 149.43(C) is not mandatory.” We are not persuaded that the statute
should now be interpreted differently.
       {¶ 13} The remaining question is whether a court may, in its discretion,
award attorney fees to a party who has filed a complaint pursuant to R.C. 149.43
and has received requested documents before judgment is entered. That was the
issue in State ex rel. Toledo Blade Co. v. Northwood (1991), 

58 Ohio St.3d 213

,

569 N.E.2d 904

. We answered in a per curiam opinion that R.C. 149.43(C) “does
not contemplate an award of attorney fees in mandamus actions rendered moot by
the voluntary production of a record.” 

Id. at 214

, 

569 N.E.2d at 905

. Our
conclusion was founded on our belief that to construe R.C. 149.43(C) as permitting
an award of attorney fees even when a copy of the requested public record had been
provided would discourage record production after a mandamus action has been
commenced. Since Toledo Blade, we have observed other instances in which
custodians of public records have denied access to public records only to turn them
over to the person requesting them after a mandamus action had been filed. E.g.,
State ex rel. Clark v. Toledo (1992), 

62 Ohio St.3d 452

, 

584 N.E.2d 662

. In some
instances, there are legitimate legal questions presented by a refusal to discolse
records that are purportedly public. Exceptions “may not be self-evident on a
document’s face.” State ex rel. Lowery v. Cleveland (1993), 

67 Ohio St.3d 126

,




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                                January Term, 1996




128, 

616 N.E.2d 233, 234

. In other instances, requested records are clearly public
and should be given to the person requesting them without the necessity of filing
an action pursuant to R.C. 149.43. It would be difficult to imagine a case that
demonstrates any more dramatically the latter circumstances than the case before
us.
        {¶ 14} There can be no question that records sought by Pennington were
public records and should have been given to Pennington in the form and within
the time required by law. Pennington should not have been required to expend the
resources and the time required to file a mandamus action in order to obtain public
records from the Clerk of the Hamilton Municipal Court.
        {¶ 15} In view of the absence of an express statutory prohibition and the
proclivity of some custodians of public records to force the filing of a mandamus
action by a citizen to gain access to records that are obviously public, we hold that
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.
Accordingly, we overrule Toledo 

Blade, supra.

        {¶ 16} The judgment is reversed and the cause is remanded to the court of
appeals with instructions to determine whether Pennington should receive attorney
fees.
                                                                 Judgment reversed
                                                               and cause remanded.
        WRIGHT, PFEIFER and COOK, JJ., CONCUR.
        DOUGLAS, RESNICK and F.E. SWEENEY, JJ., concur in part and dissent in
part.




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                               __________________
       FRANCIS E. SWEENEY, SR., J., concurring in part and dissenting in part.
       {¶ 17} This court has taken great strides recently in construing the public
records law to ensure that records which belong to the people are open to the people
without restriction. However, we could not have held as we did if the General
Assembly had not provided such clear language in the law. Our job has always
been to interpret the law as written. Today, we take one more step forward in this
endeavor by overruling Northwood and holding that it is not necessary that a
judgment actually be entered in the prevailing party’s favor before an award of
attorney fees may be entered. I wholeheartedly agree with this decision. However,
I part ways with the majority for its summary disposition on the issue of whether
attorney fees are mandatory. I believe this court should revisit its decision in State
ex rel. Fox v. Cuyahoga Cty. Hosp. Sys. (1988), 

39 Ohio St.3d 108

, 

529 N.E.2d 443

, paragraph two of the syllabus. In so doing, this court should decide that where
the award of attorney fees is proper, that they are also mandatory. I believe that
this is the correct interpretation of R.C. 149.43 for the following reasons.
       {¶ 18} R.C. 149.43(C) provides:
       “If a person allegedly is aggrieved by the failure of a governmental unit to
promptly prepare a public record and to make it available to the person for
inspection in accordance with division (B) of this section, or if a person who has
requested a copy of a public record allegedly is aggrieved by the failure of a person
responsible for it to make a copy available to the person in accordance with division
(B) of this section, the person allegedly aggrieved may commence a mandamus
action to obtain a judgment that orders the governmental unit or the person
responsible for the public record to comply with division (B) of this section and that
awards reasonable attorney’s fees to the person that instituted the mandamus
action. ***” (Emphasis added.)




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                                January Term, 1996




       {¶ 19} A simple reading of the statute reveals that R.C. 149.43(C) clearly
and unambiguously allows a prevailing party in an action under the Ohio Public
Records Act to recover attorney fees.
       {¶ 20} However, in reaching its holding that attorney fees were not
mandatory in Fox, the majority there likened a mandamus action pursuant to R.C.
149.43 to a taxpayer’s suit brought pursuant to R.C. 733.61. Then, despite the clear
language of the statute, the majority set up a nebulous theory of public benefit and
the creation of a fund. Later cases, in reliance on Fox, added the elements of lack
of reasonableness and bad faith of the custodian. All these factors were to be
considered, on a case-by-case basis. See, e.g., State ex rel. Mazzaro v. Ferguson
(1990), 

49 Ohio St.3d 37

, 

550 N.E.2d 464

; State ex rel. Warren Newspapers, Inc.
v. Hutson (1994), 

70 Ohio St.3d 619

, 

640 N.E.2d 174

; State ex rel. Multimedia, Inc.
v. Snowden (1995), 

72 Ohio St.3d 141

, 

647 N.E. 1374

.              However, it was
unnecessary to develop any of these tests.       Again, the law must merely be
interpreted as written. Thus, in reviewing the Fox decision and its progeny, I think
their rationale should be rejected. Instead, I would adopt the position set forth in
the dissenting opinion in Fox that R.C. 149.43(C) makes the award of attorney fees
mandatory.
       {¶ 21} In reaching the correct conclusion, the dissent employed well-
developed statutory construction principles and public policy considerations. The
dissent considered the General Assembly’s actions in adding subsection (C) to R.C.
149.43 and repealing R.C. 149.99, which had provided for “a civil action to compel
compliance” with R.C. 149.43 and had specified the penalty for a violation of R.C.
149.43. New subsection (C) clearly provides that a “person allegedly aggrieved
may commence a mandamus action to obtain a judgment that orders the
governmental unit or the person responsible for the public record to comply with
division (B) of this section and that awards reasonable attorney’s fees to the person




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that instituted the mandamus action.” (Emphasis added.) Fox, 

39 Ohio St.3d at 113

, 

529 N.E.2d at 448

.
       {¶ 22} The dissent also considered and rejected the Fox majority’s
conclusion that the award of attorney fees is discretionary because of the use of the
word “may” in the statute. Instead, the dissent found the statutory language
unambiguous:
       “The word ‘may’ in this newly revised section does not modify the
reasonable-attorney-fees language. The word ‘may’ only modifies the verbiage
‘commence a mandamus action.’ It was placed in the statute so there could be no
further question that an allegedly aggrieved party could use the speedy remedy of
mandamus, a course of action which had been prevented by a majority of this court
in State ex rel. Fostoria Daily Review Co. v. Fostoria Hosp. Assn. (1987), 

32 Ohio St.3d 327

, 

512 N.E.2d 1176

.” 

Id.

       {¶ 23} The dissenting opinion believed that the Fox majority had
overlooked the very precise language found in Section 5 of Am.Sub.S.B. No. 275,
effective October 15, 1987, 142 Ohio Laws, Part I, 1153, which provided:
       “‘This act is hereby declared to be an emergency measure necessary for the
immediate preservation of the public peace, health, and safety. The reason for the
necessity is that, unless the effect of the recent decision of the Ohio Supreme Court
in State ex rel. Fostoria Daily Review Co. v. Fostoria Hosp. Assn. (1987), 

32 Ohio St.3d 323

, is immediately superseded and a civil action for a writ of mandamus
available in all courts with original jurisdiction reestablished as the remedy to
enforce the Public Records Law, members of the general public could be denied
access to public records in violation of the Public Records Law, and have no
recourse other than to pursue an inadequate, statutorily prescribed remedy in the
court of common pleas of injunctive relief, a forfeiture of $1,000, and a reasonable
attorney’s fees award. Therefore, this action shall go into immediate effect.’”
(Emphasis sic.) Id. at 113-114, 

529 N.E.2d at 448

.




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                                 January Term, 1996




        {¶ 24} Aside from the statutory history and the clear language of the statute,
policy considerations also dictate that this is the just result. As noted by Justice
Douglas:
        “The theory of any public disclosure law is not that an individual is
benefited but that the public as a whole is the beneficiary of the government’s
business being open to the public. When a ‘public office’ refuses a legitimate and
reasonable request to make available, pursuant to R.C. 149.43, public records, some
individual or organization must be the catalyst to enforce the law. If we *** prevent
the recovery of reasonable attorney fees for those who seek to enforce the law on
behalf of all of us, then truly those self-appointed surrogates will be ‘volunteers’ in
every sense of the word and will find themselves burdened with heavy expenses
which they must personally underwrite. There will be little incentive, except
possibly for news-gathering organizations, to seek enforcement of the law which,
in effect, defeats the very purpose of the law.” 

Id. at 112-113

, 

529 N.E.2d at 447

.
        {¶ 25} By making the award of attorney fees discretionary, “the majority
leaves an offending governmental unit with no reason to comply with the Act. Any
such unit will be defended at the taxpayers’ expense since its attorney fees will be
paid out of government funds. If the ‘public office’ loses and is not required to pay
costs and reasonable attorney fees, then no penalty at all attaches since the General
Assembly has repealed R.C. 149.99.” 

Id. at 114

, 

529 N.E.2d at 448

.
        {¶ 26} I agree with all the concerns raised by the Fox dissenting opinion.
Further, I recognize that one of the biggest obstacles facing the public in its requests
for public records is that governmental agencies often refuse to turn over public
records that should be produced. These governmental agencies take the position
that the records belong to them, and not the public. Indeed, this is what happened
here. Deputy Clerk Cloud testified at her deposition that she was not aware that
Carroll was entitled to these records; instead, she thought she would be providing
them to him “as a courtesy.” Cloud went so far as to testify to this view of the




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lawsuit: “I thought it was a bunch of bull crap that I basically had done my job,
that I just thought it was a legal technicality that’s wasting a lot of everyone’s time.
It really is unnecessary because I haven’t done anything wrong.” Such an attitude
or ignorance cannot be condoned. In her position as a deputy clerk, she acts as a
custodian of our records, and she is charged with knowledge of the law. If such
ignorance results from inadequate training by a supervisor, that too cannot be
condoned. Our government is its people and should be about serving them and not
about serving itself.
        {¶ 27} For today’s holding I would provide a “bright line” test. If a person
is refused public records that he has a right to obtain, that person has a statutory
right to bring a mandamus action to enforce compliance. The act of filing the
mandamus action is sufficient to entitle the person to the mandatory award of
attorney fees set forth in the statute.
        {¶ 28} Because I do not believe that Northwood and Fox are in accord with
the law of our state, as set forth in clear and unambiguous terms in R.C. 149.43(C),
I would overrule Northwood in its entirety and the second paragraph of the syllabus
in Fox. Accordingly, I would reverse the court of appeals and remand the cause for
the allowance of reasonable attorney fees, including fees attributable to this appeal
and to proceedings on remand.
        DOUGLAS and RESNICK, JJ., concur in the foregoing dissenting opinion.
                                __________________




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