THE STATE EX REL. DOE, APPELLANT AND CROSS-APPELLEE, v. SMITH, CHIEF, ET AL., APPELLEES AND CROSS-APPELLANTS.
No. 2008-2471
Supreme Court of Ohio
Submitted August 11, 2009—Decided August 25, 2009
123 Ohio St.3d 44, 2009-Ohio-4149
{¶ 1} This is an appeal and cross-appeal from a judgment granting a writ of mandamus to compel appellees and cross-appellants, Pierce Township Police Chief James T. Smith and the Pierce Township Board of Trustees, to produce certain records relating to an alleged incident or offense and awarding appellant and cross-appellee, John Doe (“appellant“), statutory damages of $1,000, attorney fees of $2,000, and expenses in the amount of $500. We hold that the court of appeals did not abuse its discretion in awarding statutory damages and attorney fees in the stated amounts and affirm the judgment. We dismiss the cross-appeal as moot insofar as it challenges the court‘s grant of the writ, and we reverse the judgment of the court of appeals in awarding expenses exceeding the $125 in costs paid for the court of appeals filing fee.
Incident and Juvenile Court Letter
{¶ 2} In December 2006, the Community Journal Clermont published a summary of police reports for Pierce Township. The newspaper‘s summary included a reported arrest or citation of a 14-year-old boy for aggravated arson for an incident in which a fire was set in a bedroom at 996 East Legendary Run in Pierce Township on December 4, 2006.
{¶ 3} On November 6, 2007, Chief Deputy Clerk Teresa Boothby of the Clermont County Juvenile Court sent a letter to the Pierce Township Police Department informing the department that the juvenile court had sealed the records involving the juvenile who was allegedly involved in the December 4, 2006 aggravated-arson incident:
{¶ 4} “You are hereby advised that the above charge(s) involving the above name[d] juvenile have been sealed per
{¶ 5} Appellant is an Ohio citizen and a resident and taxpayer of Pierce Township. On November 29, 2007, attorney Curt C. Hartman, on behalf of appellant, hand-delivered a request to Smith to permit him to inspect and copy “any incident or offense report, including any narrative supplements, for any incident or offense that allegedly occurred at 996 East Legendary Run on December 4, 2006,” and “any record documenting any incident or offense that allegedly occurred at 996 East Legendary Run on December 4, 2006.” Hartman also noted, “If no such records exist, please advise.”
{¶ 6} The next day, on November 30, 2007, Smith responded to appellant‘s request by stating, “There is no information available.” At the time the records were requested, Smith had possession of them, but based on the juvenile court‘s letter, he believed that the records relating to the juvenile charges had been sealed and that he was not permitted to release any information. In December 2007, Smith sent the pertinent records to the juvenile court in accordance with the court‘s instructions, keeping redacted copies.
{¶ 7} In response to a mid-December 2007 request by a Cincinnati Enquirer reporter for police incident reports relating to 996 East Legendary Run in Pierce Township, Smith sent the redacted offense report. When asked at his deposition why he had responded differently to the two public-record requests, Smith said that this was the first time he had received a juvenile-court directive to seal a case, so he was unsure what information he could release. He further stated that each time he received a public-record request for the sealed information, he contacted the juvenile court deputy clerk and his township counsel for advice on how to respond.
Mandamus Case
{¶ 8} After Smith‘s refusal to provide access to the requested records, appellant filed a complaint in the Court of Appeals for Clermont County for a writ of mandamus to compel Smith and the Pierce Township Board of Trustees (collectively, “cross-appellants“) to make the requested records available for inspection and copying. Appellant also sought statutory damages, attorney fees, and costs. Cross-appellants filed an answer, and the parties submitted motions for summary judgment.
{¶ 9} The court of appeals granted appellant‘s motion for summary judgment, denied cross-appellants’ motion for summary judgment, and granted a writ of
{¶ 10} Appellant submitted the requested documentation in support of his request for attorney fees and litigation expenses. Appellant requested $16,875 in attorney fees and $1,033.84 in litigation expenses. The litigation expenses included $125 for the court of appeals filing fee. Appellant later requested additional attorney fees for supplemental filings. The court of appeals awarded appellant $2,000 in attorney fees and $500 in litigation expenses.
{¶ 11} This cause is now before the court upon an appeal and cross-appeal as of right.
Cross-Appeal
{¶ 12} In their cross-appeal, Smith and the board challenge the propriety of the court of appeals’ grant of the writ of mandamus as well as the court‘s award of attorney fees, statutory damages, and expenses.
{¶ 13} Insofar as their cross-appeal challenges the issuance of the writ of mandamus to compel Smith and the board to provide the requested records, it is moot because they have now provided the records. “In general, providing the requested records to the relator in a public-records mandamus case renders the mandamus claim moot.” State ex rel. Toledo Blade Co. v. Toledo-Lucas Cty. Port Auth., 121 Ohio St.3d 537, 2009-Ohio-1767, 905 N.E.2d 1221, ¶ 14. This claim is also not one that is capable of repetition, yet evading review. The challenged action is not always so short in duration to prevent it from being fully litigated before its cessation or expiration, and there is no reasonable expectation that these parties will be subject to the same action again so as to require additional public-records litigation. See State ex rel. Cincinnati Enquirer v. Heath, 121 Ohio St.3d 165, 2009-Ohio-590, 902 N.E.2d 976, ¶ 11. Notably, this is neither a courtroom-closure case nor a case in which a hearing transcript was sought. Cf. id. at ¶ 12.
Attorney-Fee Award—Standard of Review
{¶ 15} Notwithstanding appellant‘s claims to the contrary, we have consistently held, “In an appeal of a judgment granting or denying fees in a public records case, we review whether the court abused its discretion.” 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 (2001), 92 Ohio St.3d 312, 314, 750 N.E.2d 156. “An abuse of discretion means an unreasonable, arbitrary, or unconscionable action.” State ex rel. Beacon Journal Publishing Co. v. Akron, 104 Ohio St.3d 399, 2004-Ohio-6557, 819 N.E.2d 1087, ¶ 59.
{¶ 16} Appellant argues that based on our plenary authority in extraordinary-writ cases, we should instead review his request for attorney fees de novo, with no deference to the court of appeals’ ruling. “The court‘s plenary authority generally refers to our ability to address the merits of a writ case without the necessity of a remand if the court of appeals erred in some regard.” State ex rel. Natl. Elec. Contrs. Assn., Ohio Conference v. Ohio Bur. of Emp. Servs. (2000), 88 Ohio St.3d 577, 579, 728 N.E.2d 395; see also Rosen v. Celebrezze, 117 Ohio St.3d 241, 2008-Ohio-853, 883 N.E.2d 420, ¶ 49. There is no indication that a remand is required for any error by the court of appeals here, and we note that our exercise of plenary authority is not automatic; it is within our discretion.
{¶ 17} Therefore, because we find no viable reason in this case to depart from the general abuse-of-discretion standard for reviewing an attorney-fee award in a public-records case, we decline to invoke our plenary authority to review the fee award de novo.
Attorney-Fee Award—Mandatory or Discretionary
{¶ 18} “Ohio has long adhered to the ‘American rule’ with respect to recovery of attorney fees: a prevailing party in a civil action may not recover fees as part of the cost of litigation.” Wilborn v. Bank One Corp., 121 Ohio St.3d 546, 2009-Ohio-306, 906 N.E.2d 396, ¶ 7. An exception to this general rule is that attorney fees may be awarded to a prevailing party when a statute specifically authorizes it. Id.
{¶ 19} Prior to September 29, 2007,
{¶ 20} In construing this provision, we held that “[a]warding attorney fees in public records cases is discretionary and is to be determined by the presence of a public benefit conferred by [the] relator seeking the disclosure. Moreover, since the award is punitive, reasonableness and good faith of the respondent in refusing to make disclosure may also be considered.” State ex rel. Beacon Journal Publishing Co. v. Maurer (2001), 91 Ohio St.3d 54, 58, 741 N.E.2d 511, quoting State ex rel. Multimedia, Inc. v. Whalen (1990), 51 Ohio St.3d 99, 100, 554 N.E.2d 1321; see also State ex rel Fox v. Cuyahoga Cty. Hosp. Sys. (1988), 39 Ohio St.3d 108, 111-112, 529 N.E.2d 443.
{¶ 21} “Effective September 29, 2007,
{¶ 22}
{¶ 23} “(2)(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:
{¶ 24} “(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.
{¶ 25} “(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.
{¶ 27} “(i) That, based on the ordinary application of statutory law and case law as it existed at the time of the conduct or threatened conduct of the public office or person responsible for the requested public records that allegedly constitutes a failure to comply with an obligation in accordance with division (B) of this section and that was the basis of the mandamus action, a well-informed public office or person responsible for the requested public records reasonably would believe that the conduct or threatened conduct of the public office or person responsible for the requested public records did not constitute a failure to comply with an obligation in accordance with division (B) of this section;
{¶ 28} “(ii) That a well-informed public office or person responsible for the requested public records reasonably would believe that the conduct or threatened conduct of the public office or person responsible for the requested public records as described in division (C)(2)(c)(i) of this section would serve the public policy that underlies the authority that is asserted as permitting that conduct or threatened conduct.” (Emphasis added.)
{¶ 29} Appellant asserts that this amendment legislatively supersedes our caselaw holding that an award of attorney fees to prevailing parties in public-records mandamus cases is discretionary and that an award is now mandatory. In assessing
{¶ 30} After reviewing the pertinent language of
{¶ 32} Moreover, the mere fact that the amended version of
{¶ 33} Appellant next asserts that insofar as an attorney-fee award under
{¶ 34} In addition, although our precedent indicates that a court‘s consideration of the reasonableness of the public office‘s failure to comply with the public-records request is part of the court‘s discretionary attorney-fee determination because the award was punitive, the amended statute‘s declaration that an attorney-fee award is remedial and not punitive does not remove this consideration from the analysis. In fact, a respondent‘s reasonableness in denying a records request is subsumed in the
{¶ 35} Finally,
{¶ 36} Therefore, appellant‘s arguments regarding the mandatory nature of the fee award and the exclusivity of the statutory factors to determine whether to award attorney fees or to calculate the appropriate amount lack merit.
Fee Award—Propriety of Court of Appeals’ Determination
{¶ 37} In applying the foregoing pertinent factors, we hold that the court of appeals did not act unreasonably, arbitrarily, or unconscionably in awarding appellant only $2,000 in attorney fees.
{¶ 38} First, although Smith‘s response to appellant‘s request failed to comply with
{¶ 39} 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. See
{¶ 40} 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. See
{¶ 41} 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.” See Prof.Cond.R. 1.5(a)(1) and (3).
{¶ 42} Finally, there is no indication that the court of appeals failed to state a sufficient basis for its fee determination so as to deprive this court of a meaningful opportunity to review it. Cf. Bittner v. Tri-County Toyota, Inc. (1991), 58 Ohio St.3d 143, 146, 569 N.E.2d 464 (“When making a fee award pursuant to
{¶ 43} Moreover, 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
{¶ 44} Therefore, the court did not abuse its discretion in awarding appellant $2,000 in attorney fees.
{¶ 45} 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 referring to the juvenile court‘s letter to the police department.
Litigation Expenses
{¶ 46} The court of appeals erred in awarding appellant $500 in litigation expenses. Aside from the $125 for the court filing fee to be assessed as costs, appellant was not entitled to the recovery of litigation expenses as costs. “Costs” is not synonymous with “litigation expenses” unless specified by statute or rule. State ex rel. Inskeep v. Staten (1996), 74 Ohio St.3d 676, 678-679, 660 N.E.2d 1207.
Conclusion
{¶ 47} The court did not abuse its discretion in awarding appellant $2,000 in attorney fees and $1,000 in statutory damages. Therefore, we affirm the judgment of the court of appeals regarding the award of attorney fees and statutory damages. In addition, we reverse the judgment of the court of appeals insofar as the court awarded appellant litigation expenses beyond the filing fee he paid. Finally, we dismiss as moot the cross-appeal to the extent that it challenges the court of appeals’ issuance of the writ of mandamus.
Judgment accordingly.
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.
The Law Firm of Curt C. Hartman and Curt C. Hartman; and KBH Law Office and Kari B. Hertel, for appellant and cross-appellee.