787 N.E.2d 1248 | Ohio Ct. App. | 2003
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{¶ 2} By way of background, on November 27, 2000, appellant commenced this public records mandamus action to compel appellee to provide copies of the requested public records at "actual cost," which appellant proposed was five cents per copy or less. Specifically, appellant alleged that appellee had the ability "to make copies of the requested documents `in house' using [appellee's] own personnel and equipment. [Appellee] has, however, refused to supply [appellant] with the requested copies at [appellee's] actual cost to make the copies in house, but instead [appellee] contends that it can charge [appellant] the copying costs of an outside contractor."
{¶ 3} In essence, appellant refused to pay the cost incurred by appellee if the copying services of a private contractor were used. Rather, appellant demanded that appellee provide the copies of the requested public records at a rate of five cents per copy. Appellant also sought to recover attorney fees for instituting the mandamus action.
{¶ 4} Appellee responded to the complaint by filing an answer. Therein, appellee admitted that it had an obligation to supply appellant with copies of the public records but "denie[d] that it had the ability to make copies of the requested documents in-house" due to the "voluminous nature of [appellant's] public records request ***." In an attempt to comply with appellant's public records request, appellee allegedly sought to have a local copying store make copies of the records. Appellee, however, acknowledged that appellant refused to pay the local copying store's charge for these copies. For this reason, appellee did not make or provide appellant with copies of the requested public records. *391
{¶ 5} This matter proceeded towards a trial before the court on October 21, 2001. Appellant testified on his own behalf, while appellee presented the testimony of Peggy A. Cusick ("Ms. Cusick") and Russell D. Schaedlich ("Mr. Schaedlich"). Prior to the commencement of trial, the parties stipulated that the records requested by appellant were public records, and that appellant was entitled to copies of these records.
{¶ 6} At trial, appellant explained that he requested copies of public records relating to the issuance, denial and appeal of zoning permits, payment of fees, and the grant or denial of variances for the construction of a deck in Concord Township from 1990 to the present. According to appellant, he believed that the disclosure of such information served a public interest.
{¶ 7} As for supplying copies of the requested public records, Ms. Cusick, the clerk/treasurer for Concord Township, testified that the average cost for the township to make a copy in house was five cents per page. This cost did not include the labor.
{¶ 8} Mr. Schaedlich, the administrator/zoning inspector for Concord Township, testified that approximately 10,000 documents would need to be photocopied in order to respond to appellant's public records request. According to Mr. Schaedlich, it would take approximately forty-four hours to identify and make copies of such records. In Exhibit D, he indicated the township did not have the resources to dedicate to this volume of copies.
{¶ 9} At trial, appellee introduced into evidence the cost of having Kinko provide copying services. Pursuant to Kinko's volume pricing, 10,000 copies cost approximately $637, or six cents per copy. In comparison, appellee's cost would be approximately $500 for copying 10,000 documents in house. Thus, if Kinko's were used, appellant would have to pay $137 more.
{¶ 10} After taking the matter under advisement, the trial court issued a lengthy judgment entry on November 5, 2001, denying appellant's complaint for a writ of mandamus. In reaching this determination, the trial court reasoned, in part, that "when a public records request is made pursuant to R.C.
{¶ 11} Accordingly, the trial court denied the complaint for a writ of mandamus as to the specific relief sought by appellant, which demanded that appellee provide copies of the requested public records at five cents per page. Nevertheless, the trial court ordered appellee to supply copies of the requested public *392 records to appellant "provided that appellant [was willing] to pay the actual price incurred by [appellee] if an independent contractor [was] used."
{¶ 12} From this judgment appellant appeals, submitting two assignments of error for our consideration:
{¶ 13} "[1.] The trial court committed reversible error in dismissing relator's complaint for a writ of mandamus.
{¶ 14} "[2.] The trial court committed reversible error and abused its discretion in not issuing the writ of mandamus and ordering Concord to pay Mr. Gibbs' attorney fees."
{¶ 15} Before we may address the merits of appellant's first assignment of error challenging the trial court's denial of his complaint for a writ of mandamus, we must determine whether the mandamus action has been rendered moot.
{¶ 16} In his appellate brief, appellant acknowledges that on January 7, 2002 "[appellee] actually delivered copies of substantially all of the requested copies to [appellant]. There were in fact only Five Hundred Forty Five (545) pages. [Appellee] made all copies in house and charged $.06 per page because Kinko's had changed its price for the copies."
{¶ 17} "`Mandamus does not lie to compel an act that has already been performed.'" State ex rel. Chapnick v. E. Cleveland City School Bd.of Edn.,
{¶ 18} Further, we note that this case raises two important issues that are capable of repetiton, to wit: (1) whether a custodian of public records may utilize a private contractor for copying services in order to respond to a request for copies of public records; and (2) whether a party requesting the copies of public records must pay the cost incurred by the custodian for using the copying services of a private contractor.
{¶ 19} As to these issues, appellant agrees that appellee may, in its discretion, have a private contractor make copies of the public records requested. However, appellant proposes that appellee should have to assume any difference in cost between the private contractor's charge and appellee's charge for producing the copies. *393
{¶ 20} Pursuant to R.C.
{¶ 21} "[A]ll public records shall be promptly prepared and made available for inspection to any person at all reasonable times during regular business hours. *** [U]pon request, a public office or person responsible for public records shall make copies available at cost, within a reasonable period of time." (Emphasis added.)
{¶ 22} While the term "at cost" is not statutorily defined in R.C.
{¶ 23} "`Actual cost' means the cost of depleted supplies, records storage media costs, actual mailing and alternative delivery costs, or other transmitting costs, and any direct equipment operating and maintenance cost, including actual costs paid to private contractors forcopying services." (Emphasis added.) R.C.
{¶ 24} Thus, the focus of this case is the whether the term "at cost" as used in R.C.
{¶ 25} As to this point, appellant maintains that the statutory definition of "actual cost" is specifically restricted to
{¶ 26} In State ex rel. The Warren Newspapers, Inc. v. Hutson
(1994),
{¶ 27} "Although the court has not defined `at cost,' it has been stated that a public office, in its sound discretion, may adopt areasonable policy setting a fee for copies obtained from the publicoffice, with the fee reflecting the actual cost involved in making acopy unless the cost is otherwise set by statute. 1989 Ohio Atty.Gen.Ops. No. 89-073; cf. State ex rel. Nelson v. Fuerst (1993),
{¶ 28} Thus, pursuant to Hutson and the statutory construction rule of in pari materia, the requirement in R.C.
{¶ 29} "Actual cost," however, would not include the cost of labor for the public employee who responded to the request to make copies of public records because the employee has already been compensated for performing his/her duties concerning the records request. Hutson at 626. See, also, 1999 Ohio Atty.Gen. Ops. No. 99-012 (providing that "[f]or purposes of determining the fee that may be charged pursuant to R.C.
{¶ 30} Appellant also argues that "cost" and "actual cost" have individual meanings in the accounting profession. However, these statutes at issue are directed to and are for the benefit of the general public, not the accounting profession. Hence, accounting terms of art are not controlling, particularly where such a reading would create conflict instead of harmony with a consistent and logical interpretation.
{¶ 31} In light of the foregoing legal principles, we hold that the term "at cost" as used in R.C.
{¶ 32} For instance, the decision to employ the services of a private contractor cannot be used to make it more difficult or create an unreasonable obstacle for the individual seeking to obtain copies of the public records. If, however, the public office has limited photocopying resources or labor, then it would be reasonable for the public office to employ the services of a private contractor.
{¶ 33} Similarly, there may be circumstances where the public records are such that they cannot be removed from the office of the public entity, i.e., for security reasons or to remain accessible to the public. Thus, the public office could also contract for in-house copying accomplished by the acquisition of short-term rental equipment and temporary help or overtime sufficient to accomplish the requested project. Again, the critical factor is reasonableness under the circumstances in determining whether to resort to additional in-house resources beyond normal staffing and equipment, or an outside source to meet the copy request. *395
{¶ 34} There may also be instances when the public office may be able to comply without disrupting its normal functions, but only over an extended period of time. In that instance, the public office can offer the requesting party the option of either: (1) having the documents produced through a faster method by employing internal addition of temporary personnel and equipment; (2) an external private contractor; or (3) having the documents produced in-house by the public office's normal staff and equipment in a less efficient and more time consuming manner. This approach is consistent with R.C.
{¶ 35} For these reasons, we agree that the trial court correctly determined that it was reasonable for appellee to initially plan to utilize a private contractor, such as Kinko's, to process appellant's request for what was believed to be 10,000 copies of certain public records, and that appellee could charge appellant the actual cost incurred for using the copying services of a private contractor. Hutson at 625; R.C.
{¶ 36} As an alternative argument, appellant suggests that the trial court should have granted the complaint for a writ of mandamus by ordering appellee to provide the requested copies to appellant at the price charged by an independent contractor.
{¶ 37} Appellant's mandamus action, however, did not request such relief. Rather, appellant's complaint for a writ of mandamus specifically sought to compel appellee to provide copies of the requested public records at a rate of five cents per page. Accordingly, the trial court could not grant appellant's complaint for a writ of *396 mandamus for relief that was not requested by appellant. For these reasons, appellant's first assignment of error is without merit.
{¶ 38} In assignment of error two, appellant challenges the trial court's denial of his request for attorney fees for instituting the mandamus action. According to appellant, the trial court abused its discretion by failing to issue the writ of mandamus and failing to conduct a hearing to determine appellant's claim for attorney fees.
{¶ 39} As discussed in the first assignment of error, the trial court did not err in denying appellant's complaint for a writ of mandamus. Furthermore, an evidentiary hearing on a motion for attorney fees is not always required. Chapnick at 452, citing In re Removal ofOsuna (1996),
{¶ 40} Despite the foregoing conclusion, evidence on the issue of attorney fees was presented as part of the October 12, 2001 bench trial. Therefore, this court can proceed to review whether the trial court abused its discretion in denying appellant's request for attorney fees.
{¶ 41} R.C.
{¶ 42} When considering whether to award attorney fees pursuant to R.C.
{¶ 43} As to the first requirement, the parties stipulated and the trial court determined that the records requested by appellant were public records, and that appellant was entitled to copies of the requested records under R.C.
{¶ 44} In addition, the third and fourth requirements are also satisfied. Appellant filed this mandamus action to obtain copies of the requested public *397 records at a rate of five cents per page. Although the trial court denied appellant's complaint for a writ of mandamus, appellant acknowledged in his appellate brief that he received copies of some of the records only after this action was filed. Thus, we must consider the second requirement, that is, whether appellee failed to comply with appellant's request for copies of the public records.
{¶ 45} In applying the four-prong test set forth in Pennington, a court should also consider "the reasonableness of the government's failure to comply with the public records request and the degree to which the public will benefit from the release of the records." Olander at 179. See, also, Wadd at 54; State ex rel. Findlay Publishing Co. v.Hancock Cty. Bd. of Commrs. (1997),
{¶ 46} In its November 5, 2001 judgment entry, the trial court found that "[t]he records of which [appellant] seeks copies may demonstrate alleged malfeasance and/or misfeasance of [appellee] and its agents and employees in regards to decks[.]" From this, the trial court concluded that "the disclosure of such information allegedly could serve a great public benefit."
{¶ 47} Appellee, however, was willing to provide 10,000 documents at its actual cost as quoted by Kinko's. The dispute concerned which charge was the "actual cost" of these copies. Appellee's position to charge appellant the cost incurred by a private contractor, such as Kinko's, was supported by Hutson, supra, and the statutory definition of "actual cost" provided in R.C.
{¶ 48} Furthermore, no evidence was presented to support appellant's contention that appellee acted in bad faith when it estimated at trial that approximately 10,000 documents would need to be copied in order to comply with appellant's request for public records. Although appellant acknowledges in his appellate brief that appellee supplied 545 pages in January 2002, there is no evidence tending to show that appellee knew at trial that the requested number of copies to be made would be reduced by appellant or would be far less than the 10,000 document estimate originally provided.
{¶ 49} Given that the complaint for a writ of mandamus was without merit, appellant was not entitled to an award of attorney fees. State exrel. WLWT-TV5 *398 v. Leis,
{¶ 50} Based on the foregoing analysis, appellant's assignments of error are without merit, and the judgment of the trial court is affirmed.
DONALD R. FORD, P.J., and DIANE V. GRENDELL, J., concur.