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Krichbaum Rules for City in Public Records Case
YOUNGSTOWN, Ohio -- A magistrate's ruling that the city officials improperly withheld public records from The Business Journal has been overturned by Judge R. Scott Krichbaum.The judge's decision, filed March 17, vacated the decision of Mahoning County Common Pleas Court Magistrate Eugene Fehr, who said the city must pay the newspaper's attorney's fees -- the only remedy provided by state law when courts find public officials improperly withheld public records.The Business Journal sued the city, Mayor George McKelvey and then Law Director John McNally IV in October 2003, 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 $1.5 million purchase of land between the Market Street and South Avenue bridges for construction of a convocation center.After three days of hearings and testimony in early 2004, Fehr ruled the city had violated public records laws by withholding documents the newspaper properly requested. The city objected to the magistrate's ruling, contending it responded in good faith to the newspaper's requests. In seeking a review of the magistrate's ruling by Krichbaum, the city's attorney, Chris Sammarone, argued 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., which sold the land to the city, dated Dec. 14, 2001 -- did not fall within the scope of The Business Journal's records requests.In overturning the magistrate's decision, Krichbaum called any omissions by the city "innocent" and said the newspaper failed to make its document requests specific enough for officials to comply. The judge also said the city acted in good faith, and noted that the law director "reviewed several thousands of documents in responding to [the newspaper's] public records request."In his ruling, Krichbaum called "flippant and inappropriate" this conclusion in the magistrate's ruling: "The law director's good faith efforts to comply with the [newspaper's] public records requests contrasts with the mayor's ill will toward [the newspaper], making the decision to award attorney fees difficult.However, the award of attorney [fees] is granted."Krichbaum found that McKelvey had ordered city officials to fully comply with public records requests, and his prohibition on city employees speaking to The Business Journal had no bearing on the newspaper not receiving all the documents it sought.The Business Journal is reviewing its legal options, said its publisher, Andrea Wood."Judge Krichbaum's ruling is a big blow to the rights of the public and news organizations," Wood said. "We believe the judge selectively applied some facts and overlooked other facts, and in so doing disregarded pages of case law handed down by the Ohio Supreme Court."For example, Wood pointed out, the law director did not review the thousands of documents cited in the judge's ruling until after The Business Journal filed suit against the city. And while Krichbaum said the newspaper's written requests for documents lacked specificity, one such request specifically asked for any correspondence with MS Consultants regarding the parcel of land between the bridges. Other requests were similarly specific, she said.Krichbaum's ruling also said The Business Journal should have employed the investigative reporting techniques used by Bertram deSouza of The Vindicator, who published the contents of one of the documents not turned over to The Business Journal, which prompted the lawsuit."We followed state law in demanding public documents," Wood said. "For the judge to say our investigative reporting techniques were lacking because we followed Ohio's Open Records Law is curious indeed."Krichbaum's ruling ordered the city to "employ a system of cataloging public records for ready identification in order to comply with future public records requests. The court also finds," stated his opinion, "that the city of Youngstown [is] required to disclose all public records in a timely fashion pursuant to adequate, appropriate and specific public records requests in the future. The failure to provide certain records in this case appears to be innocent. Any such failure in the future will not be viewed in the same light," he wrote."