Lead Opinion
This appeal raises three questions for our review: (1) Did the court of appeals err in deciding that R.C. 149.43(B) required the Auditor to produce for inspection the Euclid audit records he had access to, but did not actually possess? (2) Did the court of appeals err in making any decision, because factual issues material to it remain in dispute? (3) Did the court of appeals abuse its discretion in awarding attorney fees?
For the following reasons, we hold that R.C. 149.43(B) requires the Auditor to produce the pertinent records, and further, that the court of appeals had a sufficient basis for so holding. Beyond this, we are not persuaded that the attorney fees award was an abuse of the appellate court’s discretion. Accordingly, we affirm.
R.C. 117.11(A) provides that the Auditor of State “shall commence an audit of each public office not more than two years from the release date of the last audit report of such public office.” However, if the Auditor is “unable” to complete the biennial audit, R.C. 117.11(B)(1) requires the Auditor to notify the public office, which “may” then engage the services of an independent certified public accountant (‘TCPA”). Euclid elected to engage Deloitte as its ICPA because the Auditor could not perform the audit on time.
Nevertheless, the Auditor remained ultimately responsible for the Euclid audit’s completion under R.C. 117.11(A). Thus, the agreement between Euclid and Deloitte notwithstanding, the Auditor was required by R.C. 117.11(B)(3) to approve the audit, and, under R.C. 117.12, the audit had to be conducted according to the Auditor’s standards, procedures, and guidelines. Moreover, while R.C. 117.21 provided for Deloitte to keep all the work papers, documents, and materials prepared during the course of the audit, it also required Deloitte to make these accessible to the Auditor over the succeeding three years.
R.C. 149.43(B) requires a governmental unit to promptly prepare and allow inspection of all public records, and to provide copies at cost within a reasonable time. With some exceptions, R.C. 149.43(A)(1) defines a “public record” as any record kept by a public office. Under R.C. 149.011(G), a public office’s “records” include:
“[A]ny document, device, or item, regardless of physical form or characteristic, created or received by or coming under the jurisdiction of any public*39 office of the state or its political subdivisions, which serves to document the organization, functions, policies, decisions, procedures, operations, or other activities of the office.”
In support of his claim that he is not under the duty found below, the Auditor first argues that he did not create or receive the audit records that are in Deloitte’s possession. He next argues that these records would be under his jurisdiction only if Deloitte had acted in the Euclid audit as his agent, and that he did not exercise enough control over Deloitte’s performance to establish an agency relationship. Characterizing his role as that of a “consultant,” the Auditor concludes that, while the records are public, his office is not the governmental unit that is responsible for them or that can be compelled to produce them.
We disagree with the latter argument for two reasons. First, we believe that R.C. 149.011(G) is broad enough to encompass “anything a governmental unit utilizes to carry out its duties and responsibilities * * State, ex rel. Jacobs, v. Prudhoff (1986),
Second, although amicus curiae, the Ohio Society of Certified Public Accountants, and Mazzaro also argue that an agency relationship is necessary for us to find these records within the Auditor’s jurisdiction, we are not so convinced. Rather, we believe, as did the court of appeals, that the operative inquiry is whether Deloitte prepared the relevant records by reason of authority delegated by the Auditor. See, e.g., San Gabriel Tribune v. Superior Court of Los Angeles Cty. (1983),
We come to these conclusions because they are consistent with R.C. 149.43(C), which allows a mandamus action against either the governmental unit or the person responsible for a public record. In our view, the disjunctive used in R.C. 149.43(C) manifests an intent to afford access to public records, even when a private entity is responsible for the records. See State, ex rel. Mothers Against Drunk Drivers, v. Gosser (1985),
Our conclusions also result from the broad construction of the definition of “public records” that our earlier
R.C. 4701.19, however, makes all statements, records, schedules, working papers, and memoranda incident to an audit the property of the certified public accountant who performed the audit. Thus, although the Auditor must be afforded access to these materials under R.C. 117.21, R.C. 4701.19 establishes that they belong to the ICPA performing the audit of a public office. Amicus argues that this property interest prevents us from holding such incidental materials also accessible to the public per R.C. 149.43(B).
Here again we disagree. Records owned or possessed by private entities, like those belonging to public offices, are subject to statutory disclosure requirements. R.C. 117.21 exemplifies one type of disclosure requirement — that an ICPA disclose the papers underlying an audit to the Auditor. It applies even though those papers belong to the ICPA. Similarly, R.C. 149.43(B) requires the disclosure of public records and also applies despite any ownership interest. Thus, in Recodat, supra, we granted a writ of mandamus ordering a county auditor to produce copies of public records, even though the physical records themselves were in the possession of a private entity.
Accordingly, we hold that when a private entity carries out the duties or responsibilities of a public office and the public office has a right of access to records documenting this, the records are within the public office’s jurisdiction and the public office must make them available for public inspection per R.C. 149.43(B). We therefore find that the Auditor had a duty to produce for inspection all the records Mazzaro asked to see.
The next issue before us is whether the record before the court of appeals permitted it to find that the Auditor had this duty. The Auditor argues that the record was insufficient because the appellate court failed to formally take evidence and material facts are still in dispute. He relies principally on State, ex rel. Temke, v. Outcalt (1977),
In Temke, we reversed a court of appeals judgment granting a writ of mandamus because the court had rendered its decision before an answer admitting or denying the material facts had been filed. We explained that a peremptory writ of mandamus can issue in the first instance “only when material facts are admitted disclosing that relator is entitled to relief as a matter of law and fact,” and further, that a right to relief is unclear when “the facts underpinning the claimed right are not admitted and it has not been established that no valid excuse can be given for nonperformance of the alleged duty.” Id. at 191, 3 O.O. 3d at 249,
As Mazzaro points out, however, this case differs from Temke because the court of appeals did not make its decision before the Auditor answered. Moreover, the Auditor’s answer admitted that Mazzaro requested to see the pertinent records and, in light of the Auditor’s concession that the records are public, we consider this the
We turn now to the question of attorney fees. The Auditor contends that the appellate court should have denied fees because no public benefit justifying the award will result from this action, and because his response to Mazzaro’s public record request was reasonable and made in good faith. Mazzaro maintains that the public will benefit from his efforts because he will institute a taxpayer suit if his inspection reveals the possibility of unlawful conduct by Euclid officials. He further asserts nine reasons for finding that the Auditor acted in bad faith, including the claim that after Mazzaro made his request, the Auditor submitted a retaliatory report about him to the Ohio Ethics Commission.
Attorney fees may be awarded in R.C. 149.43(C) mandamus cases when the relator demonstrates a sufficient public benefit to warrant them. State, ex rel. Fox, v. Cuyahoga Cty. Hosp. System, (1988),
On appeal of a decision granting or denying fees, we are to review whether the court’s result was “unreasonable, arbitrary, or unconscionable.” State, ex rel. Beacon Journal Publishing Co., v. Akron Metro. Horn. Auth. (1989),
Accordingly, the court of appeals’ judgments granting a writ of mandamus and awarding attorney fees are affirmed.
Judgments affirmed.
Notes
To this end, the Auditor suggests that we follow Barton v. Shupe (1988),
Concurrence Opinion
concurring. I concur in the majority’s well-reasoned opinion, affirming the judgment of the court of appeals, regarding the duty of appellant-Auditor to produce for inspection the records sought by appellee.
I also concur in the judgment of the majority in affirming the judgment of the court of appeals regarding the awarding of attorney fees. I write separately only to once again express my concern that the majority’s discussion seems to indicate that such awards must be based upon some
The language of R.C. 149.43(C) is unambiguous and explicit. It should not be ignored or rationalized away by setting up “tests,” which are not contained in the statute, for its implementation. In a welcome respite from some of our recent decisions on this subject, the majority, in the case before us, reaches the right conclusion in affirming the award of attorney fees to appellee. The message is clear. It should go forth without restraint.