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Youngstown Objects to Public Records Case Ruling
"By Dan O'BrienYOUNGSTOWN, Ohio -- The city has filed objections to a court magistrate's ruling it that violated Ohio's open records laws and owes attorney fees to The Business Journal in connection with a lawsuit the newspaper filed in late 2003.Chris Sammarone, the city's counsel and son of city Water Commissioner Charles Sammarone, filed the objections Feb. 11. The city's motion requests that Mahoning County Common Pleas Court overturn Magistrate Eugene Fehr's decision in which he found the city improperly withheld public documents and awarded the newspaper attorney fees.In October 2003, The Business Journal sued the city, Mayor George McKelvey and then Law Director John McNally IV, arguing the city had not complied with a number of public records requests the newspaper initiated in February 2003. The documents were related to a series of stories the newspaper was pursuing related to the development of the Youngstown Convocation Center.After three days of hearings and testimony in early 2004, Fehr ruled in December that the city had violated public records laws by withholding documents the newspaper properly requested. The ruling held the city responsible for paying the newspaper's attorney fees -- about $25,000 -- for prosecuting the newspaper's claim against the city. The award for attorney fees is the only penalty allowed under state law when a public agency withholds documents requested under Ohio's public records law.In the latest filing, the city contends it responded in good faith to all records the newspaper requested. Sammarone also argues that two documents cited in Fehr's decision -- a Feb. 19, 2003, letter from ms consultants to Finance Director David Bozanich and a letter from McKelvey to Elias Alexander of RSA Corp. dated Dec. 14, 2001 -- did not fall within the scope of The Business Journal's records requests. "Magistrate Fehr mistakenly determined that these two documents were requested by relators [Business Journal] and should have been made available by the respondents [City]."Fehr concluded that the newspaper properly requested both records and that the city failed to produce them in a timely fashion. On Feb. 24, 2003, The Business Journal initiated a series of requests for documents pertaining to the city's negotiation and acquisition of a 26-acre parcel between the South Avenue and Market Street bridges. The site, then owned by RSA Corp. of Youngstown, was selected as the location for a new, $41 million convocation center.While The Business Journal received a copy of the agreement, the city did not provide the McKelvey/RSA letter, which stipulated additional terms not included in the purchase agreement, especially in regards to eminent domain proceedings.In October 2003, parts of the letter were quoted in political writer Bertram deSousa's column in The Vindicator. The publication of the letter prompted The Business Journal's lawsuit.As such, Fehr concluded in his decision, the record "should have been provided pursuant to the Feb. 24, 2003, request," and that it was "unreasonable for the city to provide this letter to The Vindicator, but fail to provide it to The Business Journal."However, the city argued in its objection, the McKelvey letter to RSA was an attachment to the purchase agreement and is referenced within that agreement. Instead, the objection contends the plaintiffs "failed to read the purchase agreement, for if they did, they would have noticed the attachment or at least the reference to it. Additionally, following the receipt of the purchase agreement, the relators never specifically requested this letter or any letter from the mayor to the owners of the convocation center property."The magistrate also determined the letter from ms consultants, a civil engineering firm based in Youngstown, to Bozanich, also included information that was specifically requested by The Business Journal, but never received.The letter included cost estimates for relocating an 84-inch sewer line that bisects the convocation center property. Fehr noted the city "failed to produce the letter even after the May 2003 public records request, which specifically requested a copy of any study prepared for the city addressing the removal of the sewer line at the convocation center site and further requested copies of written communications by and between ms Consultants and the city."In his decision, Fehr also found and noted McKelvey's "ill-will" toward the newspaper constituted bad faith, largely the result of a gag order the mayor issued directing city officials not to speak with Business Journal reporters. According to the magistrate's findings, this "edict had a chilling effect upon the free exchange of information between city officials and The Business Journal so necessary in a democratic society."The city responded by objecting the gag order pertained to all other media outlets, not only The Journal, and had no bearing on a public records case. "Magistrate Fehr somehow confused this restriction on speaking to the media as a violation of public records law," he wrote. Also, counsel argued public officials have the right to decline to speak to reporters they deem untrustworthy, because the reporters have "previously violated a promise of confidentiality or otherwise distorted their comments."The latest filing comes more than one month after the magistrate's ruling. The court granted a previous request the city filed Jan. 4 for an additional 30 days to prepare objections. It cited delays because of the holiday season and the need to examine the court transcript.A subsequent request, filed Jan. 27, noted the city and its counsel did not receive the transcript until Jan. 26 and so needed an additional 30 days to examine the documents. On Jan. 27, the city, now represented by Sammarone, requested the court grant the additional time to prepare objections. The reason Sammarone gave was that new counsel was absent from the proceedings and thus needed additional time to study court transcripts.The court, however, granted counsel only until Feb. 11 to file an appeal.The city's case was first handled by attorney Craig Miller of the law firm of Ulmer & Berne, Cleveland. In February 2003, City Council approved hiring Ulmer & Berne for "all necessary services related to the convocation center/community center project." The following month, council amended its ordinance to authorize the City Board of Control to pay anticipated routine legal fees, "not to exceed $25,000 for said purpose." Funds for the legal fees were to be drawn down from a U.S. Department of Housing and Urban Development grant Congress appropriated.Council subsequently approved a series of graduated spending caps for the law firm. On June 4, 2003, council placed the cap at $50,000. In October, 2003, that number was raised to $100,000.In March 2004, council approved a final spending cap of $150,000 to Ulmer & Berne.On Jan. 31, The Business Journal reported the city paid more than $30,000 in legal fees to Ulmer & Berne as a result of the case. An engagement letter drafted by Ulmer & Berne's Miller, approved in 2003, stipulated the attorney's standard hourly rate of $280 an hour would be discounted by 10% to $252 an hour. Documents show the city was invoiced a total of $30,051.10 from Ulmer & Berne for work the firm provided related to The Business Journal's lawsuit. Records also show the city's legal expenses were paid from the $26.8 million Congress appropriated for the development of the convocation center. Shortly after the story ran, McKelvey wrote the publisher of The Business Journal, Andrea Wood, notifying the newspaper that he has once again ordered public officials not to speak to any of the newspaper's reporters.RELATED STORY: Judge Dismisses Baltmore Sun Case Against Governor"