THE STATE EX REL. DIFRANCO, APPELLANT, v. THE CITY OF SOUTH EUCLID ET AL., APPELLEES.
No. 2012-1704
Supreme Court of Ohio
Submitted June 4, 2013—Decided February 19, 2014
138 Ohio St.3d 367, 2014-Ohio-538
{21} We affirm the judgment of the Seventh District Court of Appeals.
Judgment affirmed.
O‘CONNOR, C.J., and PFEIFER, O‘DONNELL, LANZINGER, KENNEDY, FRENCH, and O‘NEILL, JJ., concur.
General Smith III, pro se.
Michael DeWine, Attorney General, and Maura O‘Neill Jaite, Assistant Attorney General, for appellee.
THE STATE EX REL. DIFRANCO, APPELLANT, v. THE CITY OF SOUTH EUCLID ET AL., APPELLEES.
[Cite as State ex rel. DiFranco v. S. Euclid, 138 Ohio St.3d 367, 2014-Ohio-538.]
(No. 2012-1704—Submitted June 4, 2013—Decided February 19, 2014.)
Per Curiam.
{1} This is a public-records mandamus case originally brought in the Eighth District Court of Appeals. All parties agree that the writ claim became moot when all the requested records were produced after the filing and during the pendency of the mandamus action. The remaining issue is whether Emilie DiFranco is, as she claims, entitled to statutory damages and attorney fees, given that (i) the city delayed two months in providing any response to the request at all and (ii) the original production of documents was incomplete—only after DiFranco presented an expert affidavit indicating that there were additional
{2} The Eighth District denied both statutory damages and attorney fees. After granting summary judgment to the city on mootness grounds, the appellate court concluded, “DiFranco has failed to establish any viable public benefit that would permit this court to award statutory damages and/or attorney fees.” 2012-Ohio-4399, 2012 WL 4462013, ¶ 10. DiFranco has appealed.
{3} With respect to DiFranco‘s claim for statutory damages, we hold, contrary to the decision below, that the question whether DiFranco demonstrated sufficient public benefit is irrelevant. In authorizing an award of such damages,
{4} As for DiFranco‘s claim for attorney fees, we hold that it is barred here for a reason not stated by the Eighth District.
{5} Accordingly, we reverse in part and affirm in part, and we remand with instructions that the appellate court determine the proper amount of statutory damages to be awarded.
Facts
{6} DiFranco sent a public-records request by certified mail to Keith Benjamin on October 13, 2011. Benjamin is an official of the city of South Euclid who serves as its records custodian. DiFranco‘s request sought nine categories of public records. (Benjamin and South Euclid are both appellees in this matter, and will be referred to collectively as “the city.“) The certified-mail receipt evidences the request‘s arrival at the city‘s offices on October 14, 2011.
{7} The city provided no response of any kind to DiFranco between its receipt of the request on October 14 and the filing of DiFranco‘s mandamus action on December 16, 2011—a lapse of two months. After DiFranco filed the mandamus action in the Eighth District, Benjamin saw the request for the first time on December 19, when the city was served with the mandamus complaint. On December 20, 2011, Benjamin electronically produced a set of responsive documents, which did not contain all the requested items.
{9} The court converted the motion to dismiss to one for summary judgment on account of the evidentiary submissions in support of the motion.
{10} On February 8, 2012, DiFranco submitted the affidavit of Brian Johnson, a certified public accountant, who offered his conclusion that certain documents that would be responsive to DiFranco‘s request must exist but had not been produced. By order dated July 3, 2012, the court of appeals required the city to address the points raised by Johnson‘s affidavit and to produce any responsive documents. Thereafter, on July 20, the city filed a certification, stating that additional documents had been produced on June 18 and describing those documents in detail. The filing also certified that no further documents were outstanding.
{11} In her August 8 response to the city‘s certification, DiFranco reiterated her entitlement to statutory damages and attorney fees in light of the chronology of the case, and she specifically cited the mandatory criteria for both damages and fees.
{12} Finally, on September 26, 2012, the Eighth District issued its decision and judgment, which dismissed the mandamus complaint as moot and denied both statutory damages and attorney fees on the grounds that DiFranco had not established a “public benefit.” DiFranco appealed.
Analysis
{13} DiFranco claims entitlement to both damages and fees under the mandatory-fee criteria enacted in the September 2007 amendments to
{14} To be sure, when the appeals court renders a decision on a discretionary issue, we defer to that court‘s discretion as the originating court. See State ex rel. Cranford v. Cleveland, 103 Ohio St.3d 196, 2004-Ohio-4884, 814 N.E.2d 1218, ¶ 24, quoting State ex rel. Dillery v. Icsman, 92 Ohio St.3d 312, 314, 750 N.E.2d 156 (2001) (” ‘In an appeal of a judgment granting or denying fees in a public record case, we review whether the court abused its discretion’ “); State ex rel. Doe v. Smith, 123 Ohio St.3d 44, 2009-Ohio-4149, 914 N.E.2d 159, ¶ 15-17 (abuse-of-discretion standard applied in reviewing fee issue that did not invoke mandatory-fee criteria and was therefore a discretionary-fee case). The city relies on Cranford and urges that we defer to the court of appeals’ judgment, but deference would be due only when the grant or denial of attorney fees occurred under discretionary criteria. This case presents an issue of damages and attorney fees authorized by specific statutory criteria; therefore, a determination of entitlement to damages and fees is not a discretionary decision of the court below, but rather a determination of how to apply legal standards. That determination lies within this court‘s authority to review legal issues de novo on appeal.
A. The public-benefit test was developed to guide the discretionary award of attorney fees before the 2007 amendments
{15} “Effective September 29, 2007,
{16} Prior to the 2007 amendments,
{17} The 2007 amendments provide generally that a court “may” award attorney fees under
{18} But the plain language of
B. DiFranco is entitled to prescribed damages of $100 per day, subject to mitigation in accordance with the statute
1. DiFranco is entitled to statutory damages because of the unreasonable delay in the city‘s response to her records request
{19} The second paragraph of
the requestor shall be entitled to recover the amount of statutory damages set forth in this division if a court determines that the public office or the person responsible for public records failed to comply with an obligation in accordance with division (B) of this section.
{20}
{21} It follows that the absence of any response over a two-month period constitutes a violation of the “obligation in accordance with division (B)” to respond “within a reasonable period of time” per
{22} DiFranco‘s October 2011 request was sent by certified mail and specifically asked for copies of the requested documents to be made available in electronic format, if possible, and committed to paying up to $50 for the cost of copying. As indicated, the city did not respond to this request in any way during the two months leading up to the filing of the mandamus action. That violation of division (B) of
{23} As contrary authority, the city cites State ex rel. Dawson v. Bloom-Carroll Local School Dist., 131 Ohio St.3d 10, 2011-Ohio-6009, 959 N.E.2d 524, but its reliance on that case is unavailing. That post-2007-amendments case presented claims for both damages and attorney fees, and the city argues that under the pronouncement of the case, entitlement to both depended on the public-benefit test. That argument relies on the following sentence: “Finally, because Dawson‘s public-records claims lack merit and were primarily beneficial to her rather than the public in general, she is not entitled to an award of attorney fees or statutory damages.” Id. at ¶ 34. The court of appeals’ decision also cites Dawson in support of its dismissal of the damages and attorney-fee claims for lack of public benefit.
{24} We conclude that Dawson is inapposite. In Dawson, we held that the requester was not entitled to obtain the documentation sought because the attorney-client privilege applied. Neither failure to produce documents that
2. The city‘s contention that DiFranco is not aggrieved lacks merit
{25} The city also argues that DiFranco is not an “aggrieved” person for purposes of
{26} The city attempts to import the Rhodes distinction—one who actually seeks access to records as distinguished from one who seeks only a monetary windfall—into the present case. In support, the city relies on the fact that DiFranco‘s previous practice had been to telephone to spur compliance with a records request but that she did not follow that practice in this case. By proceeding directly to the filing of a mandamus action, DiFranco showed (according to the city) that she was actually pursuing statutory damages and attorney fees rather than the requested records.
{27} We reject this argument. Rhodes addresses a claim for forfeiture under
3. DiFranco is entitled to statutory damages of $100 per day, subject to reduction pursuant to R.C. 149.43(C)(1)(a) or (b)
{28} For the foregoing reasons, the court of appeals erred by applying the public-benefit test. DiFranco is entitled to statutory damages because she was subjected to a violation of
{29}
{30} But on remand, the appeals court must itself count the days of noncompliance. The appeals court must also consider whether
C. DiFranco is not entitled to an award of attorney fees
{31} After the 2007 amendments,
{32} The parties do not argue this point, but it is nonetheless dispositive of the attorney-fees claim.3 Although it might be contended that the “if” clause
{33} In the present case, there is no such judgment. Indeed, the final judgment of the court of appeals disposed of the writ complaint on grounds of mootness, given that the documents had already been tendered to the relator.
{34} To be sure, it could be argued that the court‘s July 3, 2012 order might satisfy the condition, inasmuch as it ordered production of any responsive documents that had not yet been produced. But the July 3 order probably cannot qualify as a “judgment,” since that order is interlocutory and does not dispose of the case. See
{35} In any event, as the claimant seeking attorney fees, it was DiFranco‘s burden to show that all statutory conditions for an award of fees were satisfied, and DiFranco has not done so. We must therefore affirm the court of appeals’ decision to deny attorney fees, albeit on a different ground from that relied upon below.
Conclusion
{36} For the foregoing reasons, the court of appeals erred by applying the public-benefit test to DiFranco‘s claim for statutory damages. Accordingly, we reverse the judgment below as to damages, and we remand for a determination of the proper amount of damages under all the pertinent statutory criteria. With regard to the claim for attorney fees, we conclude that DiFranco did not satisfy
Judgment accordingly.
O‘CONNOR, C.J., and PFEIFER, O‘DONNELL, LANZINGER, FRENCH, and O‘NEILL, JJ., concur.
KENNEDY, J., concurs in part and dissents in part.
KENNEDY, J., concurring in part and dissenting in part.
{37} Although I agree with the majority that Emilie DiFranco was entitled to an award of statutory damages, I disagree with the majority‘s analysis of the attorney-fee issue.
{38}
(b) If the court renders a judgment that orders the public office or the person responsible for the public record to comply with division (B) of this section, the court may award reasonable attorney‘s fees subject to reduction as described in division (C)(2)(c) of this section. The court shall award reasonable attorney‘s fees, subject to reduction as described in division (C)(2)(c) of this section when either of the following applies:
(i) The public office or the person responsible for the public records failed to respond affirmatively or negatively to the public records request in accordance with the time allowed under division (B) of this section.
(ii) The public office or the person responsible for the public records promised to permit the relator to inspect or 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.
(Emphasis added.)
{39} The first sentence covers discretionary fees, which are to be awarded “[i]f the court renders a judgment that orders” production of records. Mandatory fees are covered in the second sentence and are awarded if one of two conditions exists. See State ex rel. Doe v. Smith, 123 Ohio St.3d 44, 2009-Ohio-4149, 914 N.E.2d 159, ¶ 23-32.
{40} The majority concludes that the “if” clause in the first sentence of
{42} Second, the majority‘s construction defeats the evident purpose of adding the mandatory-fee provision to the statute: ensuring an award of fees when the records custodian has unreasonably delayed the production of records. If no fees could be awarded unless the court had ordered a party to produce records, it would allow a public office to sit on a public-records request until a mandamus case was filed and then turn over the records before the court had a chance to issue an order. It would thereby prevent a requester from obtaining records within a reasonable time, while the public office would escape liability for attorney fees altogether, even though it would probably have violated division (C)(2)(b)(i) by failing to respond affirmatively or negatively to the request within a reasonable time.
{43} For these reasons, I would hold that mandatory fees are to be imposed if the public office‘s conduct falls within
{44} In sum, I agree with the majority‘s disposition of the statutory-damages issue but disagree with the majority‘s decision that DiFranco was not entitled to attorney fees. I therefore concur in part and dissent in part.
Michael P. Lograsso, South Euclid, Law Director, for appellees.