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Analysis: Open Records Case Is Victory for Press -- and Public
"YOUNGSTOWN, Ohio -- It is a victory for news organizations, but more important, a victory for the public who has the right to question how elected officials run local governments and spend tax dollars.That's how Andrea Wood, publisher of The Business Journal, and the newspaper's attorney, Richard P. McLaughlin, characterized Mahoning County Common Pleas Magistrate Eugene J. Fehr's Dec. 22 ruling. Fehr found that the city of Youngstown purposely withheld public records regarding development of the Youngstown Convocation Center and that Mayor George McKelvey had exhibited bad faith in his efforts to thwart the newspaper and its reporters.Wood and McLaughlin discussed the ruling during a press conference Dec. 30."This was not a contest of personalities," Wood said, referring to the lawsuit her company brought against the city. "It was a case where local authority exercised powers inherently autocratic and inconsistent with the fundamental principles of our democracy." Youngstown Publishing Co., which does business as The Business Journal, sued the city Oct. 31, 2003, after the city failed to produce -- despite numerous requests from The Business Journal -- public records pertaining the project. McKelvey also instructed city employees not to discuss any official business with the newspaper's reporters.Fehr ruled Dec. 22 that The Business Journal is entitled to attorneys' fees -- to be paid by the city of Youngstown -- as compensation.The awarding of attorneys' fees is so significant, Wood said, because that is all Ohio law provides for. Although the magistrate found that the city of Youngstown and McKelvey flagrantly disregarded the law, there is no provision for punitive damages, Wood explained. "The awarding of attorneys' fees is at the discretion of the court," McLaughlin added, "and they are hardly ever awarded. To be awarded, the court must find that there was an element of bad faith, that the records withheld were of great public importance, and that they were intentionally withheld."In his opinion, Fehr noted that the public relies on newspapers for in-depth information regarding complex issues and that "the expenditure of millions of dollars of tax-generated public funds for the development of a convention center or arena in the city of Youngstown is a complex matter of substantial public interest." Therefore, the records The Business Journal requested and the city failed to produce -- until after the lawsuit was filed -- are of great public interest.Because one record that The Business Journal had requested but denied access was cited in another newspaper, and because during a legal hearing the city finance director, David Bozanich, immediately speculated correctly regarding the whereabouts of yet another record that The Business Journal had requested and the city failed to produce, Fehr found the records had been intentionally withheld.Fehr also found McKelvey's direction to employees advising them not to discuss the matter with Business Journal reporters a blatant exhibition of ill-will. In his opinion, Fehr singled out McKelvey's actions. "This edict had a chilling effect upon the free exchange of information between city officials and The Youngstown Business Journal so necessary in a democratic society," Fehr wrote.Because of McKelvey's actions -- even though the city law director, John A. McNally IV, exhibited "good faith efforts" to comply with The Business Journal's records request -- Fehr awarded the newspaper its attorney's fees, which Wood estimated at "nearly $25,000.""We did not make the decision to sue lightly. We had no guarantee of winning and the expense of a legal battle made us think long and hard about going against officials whose legal fees would be paid from the public treasury," Wood said. "The expense involved imposed sacrifice on our staff and strained our resources. What we believed was at stake was not the reputation of our newspaper, but whether elected officials can escape accountability by refusing to provide records in the public domain," she stressed. "The mayor can say whatever he wants about us. He just can't withhold public information." "