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Court to Hear City's Appeal of Public Records Lawsuit
By Dan O'BrienYOUNGSTOWN,Ohio -- Mahoning County Common Pleas Judge R. Scott Krichbaum will heararguments tomorrow related to the city of Youngstown's objection to amagistrate's ruling that it violated open records laws and owesattorney fees to The Business Journal.The city wants the court to overrule Magistrate Eugene Fehr's decision,handed down in late December, that found the city improperly withhelddocuments and is responsible for paying the newspaper's attorney fees.The city's counsel, Christopher Sammarone, son of city WaterCommissioner Charles Sammarone, filed the objections.In a 14-page response filed Feb. 24, The Business Journal argues Fehr's ruling should stand. The newspaper also requestedadditional compensation for attorney fees incurred as a result legalwork related to the city's appeal.On Feb. 24, 2003, The Business Journalinitiated a series of requests for documents pertaining to the city'snegotiation and acquisition of a 26-acre parcel of land located betweenthe South Avenue and Market Street bridges. The site, then owned by RSACorp. of Youngstown, was selected as the location for the $42 millionconvocation center.In October 2003, The Business Journalsued the city, Mayor George McKelvey and then Law Director John McNallyIV, arguing the city had not complied with a number of public recordsrequests from the newspaper.After three days of testimony, Fehrruled the city violated public records laws by withholding documentsthe newspaper properly requested. The ruling stipulated the city wasresponsible for paying the newspaper's attorney fees -- then calculatedat $23,429.60 -- for prosecuting the newspaper's claim against thecity. The award for attorney fees is the only penalty allowed under lawwhen a public agency withholds documents requested under Ohio's publicrecords law.In its objections, the city contends it respondedin good faith to all records requested by the newspaper. It also arguesthat two documents cited in Fehr's decision -- a Feb. 19, 2003 letterfrom MC Consultants to Finance Director David Bozanich and a letterfrom McKelvey to Elias Alexander of RSA Corp. dated Dec. 14, 2001 --did not fall within the scope of The Business Journal's records requests.Themagistrate determined the letter to Bozanich from MS Consultants, acivil engineering firm based in Youngstown, included informationspecifically requested by The Business Journal.During the hearings, Bozanich testified the letter was located in aseparate file not pertaining to the convocation center project.Theletter included cost estimates for relocating a large sewer line thatbisects the convocation center property. Fehr noted the city "failed toproduce the letter even after the May 2003 public records request,which specifically requested a copy of any study prepared for the cityaddressing the removal of the sewer line at the convocation center siteand further requested copies of written communications by and betweenMS Consultants and the city."The Business Journal'sresponse to the city's objections outlines six different requests madeby the newspaper that would have covered the MS Consultants letter. Yetat no time was the letter produced and was only made available afterBozanich's testimony, the response states.While The Business Journalreceived a copy of the purchase agreement, the city did not provide theMcKelvey/RSA letter, which stipulated additional terms not included inthe purchase agreement, especially in regards to eminent domainproceedings. That letter was reprinted as part of political writerBertram deSousa's column in the Vindicator. The publication of the letter prompted The Business Journal's lawsuit.Fehrconcluded the document "should have been provided pursuant to the Feb24, 2003 request," and that it was "unreasonable for the city toprovide this letter to the Vindicator, but fail to provide it to The Business Journal."Thecity argued the letter was referenced as part of the purchaseagreement, and was attached as exhibit B. However, the only exhibitsattached to the agreement received by The Business Journalwas a small site map (exhibit A) and a mostly blank disclosure formstating there were no renters or lessees on the land (exhibit B). In its response,The Business Journalstates the city has never given any good faith excuse or reason whythey did not supply the documents." According to the testimonies ofcity officials, documents were not supplied because officials failed tolook in the proper files, they did not know such files existed orbecause officials felt the records did not fall within the scope of thedocuments request."These 'reasons' are totally inadequate," the newspaper argues.Moreover,the newspaper takes issue with the city's objection that Fehr based hisdecision on the city's failure to turn over just two documents, "whenin fact, the magistrate expressly found that respondents failed toprovide The Business Journal with at least nine specific documents until after the lawsuit was filed."The Business Journalalso contends that numerous other records -- produced by the newspaperin court, though not mentioned in Fehr's findings -- should have beensupplied by the city and fell within the scope of the newspaper'srequests. This evidence shows the city "engaged in a consistent patternof non compliance and that many documents were implicated.""Andfurthermore," the response states, "the failure to even supply even asingle document is grounds for a mandamus action and an award of fees.Public document requests are not a game where the government canwithhold public records until the requester happens to find them uponfurther investigation."On Jan. 27, the city requested the courtgrant it additional time to prepare objections. However, the court onlygranted counsel until Feb. 11 to file an appeal on behalf of the city,since a previous extension was already granted.Initially, the city's case was handled by attorney Craig Miller, representing the law firm of Ulmer & Berne, Cleveland. InFebruary 2003, City Council approved hiring Ulmer & Berne for "allnecessary services related to the convocation center/community centerproject." The following month, council amended its ordinance toauthorize the board of control to pay anticipated routine legal fees,"not to exceed $25,000 for said purpose." Funds for the legal fees wereto be drawn down from a U.S. Department of Housing and UrbanDevelopment line-of-credit control system, which administers the grantmoney Congress appropriated.Council then subsequently approveda series of graduated spending caps for the law firm. On June 4, 2003,council passed an ordinance placing the cap at $50,000. In October2003, that number was raised to $100,000.In March 2004, councilapproved a final spending cap of $150,000 to Ulmer & Berne. Yetlatest documents show the city has spent at least $189,000 for legalfees in relation to the convocation center.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'slawsuit. Records also show the city's legal expenses were paid from$26.8 million in grant monies the Congress appropriated for thedevelopment of the convocation center. Shortly after The Business Journal reported on the payments to Ulmer & Berne, McKelvey wrote The Business Journal declaring that he has once again ordered public officials not to speak to any of the newspaper's reporters.The Business Journal last week filed suitagainst the mayor and the city in U.S. District Court, contending themayor's order violates the newspaper's First Amendment rights.Contact Dan O'Brien at [email protected]"