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Youngstown Publishing Co. vs. City of Youngstown
STATE, ex rel. THE YOUNGSTOWN CASE NO. 03 CV 3861PUBLISHING COMPANY, et al.,RELATORS,JUDGE R. SCOTT KRICHBAUMMAGISTRATE'S DECISIONVs.CITY OF YOUNGSTOWN, OHIO, et al.,RESPONDENTS.Relators are publishers of The Youngstown Business Journal. Since 1999 Relators have reported news relating to the feasibility of constructing a convocations center in the City of Youngstown, funded, in part, by a grant of $26.8 million dollars of public funds from the U.S. Department of Housing and Urban Development. In mid-February 2003, Mayor George M. McKelvey instructed various officials in the City of Youngstown not to talk with reporters from the Business Journal, following a story questioning the wisdom of certain aspects of the project. A proposed site along the Mahoning River downtown reputedly was located within a flood plain and traversed by an aging sewer line, causing the site to be less desirable for development but to the costs of site preparation. Prior to the perceived critical story, reporters from the Business Journal generally enjoyed full access to City documents and a free exchange of information.As a result of the Mayor's directive restricting employees from answering questions from the Business Journal, Relators made a public records request of the City of Youngstown on February 24 2003 requesting documents relating to the acquisition of the proposed site of the documents pertaining to Respondents' negotiations or attempts to purchase a 26-acre parcel of land between the Market Street and South Avenue bridges along the Mahoning River and any engineering or environmental studies pertaining to the proposed site. Subsequent written public records requests on April 18 2003, May 1 2003 and May 7 2003 were made also seeking documents relating to the acquisition and preparation costs of the site. The May 7 2003 letter specifically requests a copy of "any study or report prepared for the City which addresses the issue of removal of the sewer line at the site of the proposed Convention Center, and the costs thereof" and "copies of written communications by and between ms consultants [sic] and the City of Youngstown from January 1 2001 through [May 7 2003.]On or about October 26 2003, certain information pertaining to the acquisition of land for the proposed site of the Convocations Center was contained in a column written by Mr. DeSouza in The Youngstown Vindicator, which lead Relators to believe that the City had been less than forthcoming in its response to the Business Journal's request for the same information. See Plts' Ex K. On October 31 2003 the publishers of the Business Journal filed a complaint in mandamus requesting a writ ordering Respondents City of Youngstown, Mayor and Law Director to respond to the public records requests. Relators also requested an injunction preventing Respondents from disposing of records and compelling compliance with public records requests in the future. On November 28 2003 a peremptory writ was issued by the undersigned Magistrate ordering Respondents to show cause why a writ of mandamus should not issue.By the time of the first evidentiary hearing on January 23 2004, Respondents had provided all requested documents, with the exception of Plts' Ex V (Defts' Ex 3), a February 19 2003 letter from MS Consultants, Inc. to David Bozanich, City Finance Director, including cost estimates for relocating an existing eighty-four inch (84") sanitary line on the Convocations Center Site. The letter also contained a cost estimate for relocating the sewer line west of the Convocations Site across a parcel under consideration as a location for development by BJ Alan in their February 24 2003 public records request, Relators requested a copy of any engineering studies done of the Property Site, or any portion thereof, since 1985." Respondents failed to produce the letter even after the May 7 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 Convention Center site and further requested copies of written communications by and between MS Consultants and the City. During the January 23 2004 hearing, Mr. Bozanich recognized the letter and speculated that it may be in the BJ Alan project file. Mr. Bozanich confirmed during the January 30 2004 hearing that the February 19 2003 letter from MS Consultants was in the BJ Alan project file.Ohio's Public Records Act requires the State to make available all public records to any person, Ohio Rev. Code An. $149.43 (B) (Banks Baldwin 1997), unless the record falls within one of the stature's enumerated exceptions. See Kallstrom v. City of Columbus (C.A.6, 1998), 136 F.3d1055, 1064. This statute also states that mandamus is the proper action to be commenced to "obtain a judgment that orders the government [*3] unit or the person responsible for the public record to comply with division (B) of this section." R.C. 149.43 is to be construed liberally in favor of broad access, and any doubt is to be resolved in favor of disclosure of public records. State ex rel. Cincinnati Enquirer v. Hamilton Cty. (1996), 75 Ohio St. 3d 374.Paulette v. Tablack, 1999 Ohio App. LEXIS 1083, 2-3 (Ohio Ct. App., 1999).Under the general rule, the provision of requested records to a relator in a pubic records mandamus action renders the mandamus claim moot. State ex rel. Cincinnati Enquirer v. Hamilton Cty. (1996), 75 Ohio St. 3d 374.State ex rel. Calvary v. Upper Arlington (2000), 89 Ohio St. 3d 229, 230. Relators argue that Respondents' compliance with their public records requests during the pendency of this action does not moot their mandamus claim because the issues are capable of repetition.______________________R.C.149.43 states in pertinent part.(A) As used in this section:(1) "Public record" means records kept by any public office, including, but not limited to, state, county, city, village, township, and school district units, and records pertaining to the delivery of educational services by an alternative school in Ohio kept by a nonprofit or for profit entity operating such alternative school pursuant to section 3313.533 [331353.3] of the Revised Code. * * *(B) (1) Subject to division (B)(4) of this section, all public records shall be promptly prepared and made available for inspection to any person all reasonable times during regular business hours Subject to division (B) (4)of this section, upon request a public office or person responsible for public records shall make copies available at cost, within a reasonable period of time. In order to facilitate broader access to public records, public offices shall maintain public records in a manner that they can be made available for inspection in accordance with this division. ***(C) If a person allegedly is aggrieved by the failure of a public office to promptly prepare a public record and to make it available to the person for inspection in accordance with division (B) of this section, or if a person who has requested a copy of a public record allegedly is aggrieved by the failure of a public office or the person responsible for the public record to make a copy available to the person allegedly aggrieved in accordance with division (B) of this section, the person allegedly aggrieved may commence a mandamus action to obtain a judgment that orders the public office or the person responsible for the public record to comply with division (B) of this section and that awards reasonable attorney's fees to the person that instituted the mandamus action. The mandamus action may be commenced in the court of common pleas of the county in which division (B) of this section allegedly was not complied with, in the supreme court pursuant to its original jurisdiction under Section 2 of Article IV, Ohio Constitution, or in the court of appeals for the appellate district in which division (B) of this section allegedly was not complied with pursuant to its original jurisdiction under Section 3 Article IV, Ohio Constitution. This exception applies only in exceptional circumstances in which the following two factors are both present: (1) the challenged action is too short in its duration to be fully litigated before its cessation or expiration, and (2) there is a reasonable expectation that the same complaining party will be subject to the same action again. Spencer v. Kemna (1998), 523 U.S. 1, 17-18; see, also, State ex rel. Beacon Journal Publishing Co. v. Donaldson (1992), 63 Ohio St. 3d 173. 175; State ex rel. Allstate Ins. Co. v. Gaul (1999), 131 Ohio App. 3d 419, 437.Id. Neither of these exceptional circumstances apply in this case, therefore Relators request for a writ of mandamus is moot.The testimony of Attorney McNally and Mr. Bozanich demonstrated that Respondents ultimately reviewed several thousand documents in answering Relators' various public records requests. Despite the Law Department's limited resources and the Law Director's busy schedule, Mr. McNally met with Relators' representatives for the purpose of reviewing documents for thirteen (13) hours November 14-19 2003. Files from seven City departments were provided and over 600 documents were copied. Jeffery Chagnot testified that February 2003 admonition from Mayor McKelvey about not talking to the Business Journal was the first time the Mayor had ever taken that position. By reason of the extensive post-mandamus efforts of various City officials to comply with Relators' public records requests and the previous history of free exchange of information between City officials and the Business Journal, it appears unlikely that Relators will encounter difficulty with public records requests from the City of Youngstown in the future. The issues raised by Relators' mandamus can also be addressed in the context of their claim for attorney fees. See Calvary, 89 Ohio St. 3d at 231, citing State ex rel. Gannett Satellite Info. Network v. Shirey (1997), 78 Ohio St. 3d 400, 402.Awarding "attorney fees in public records cases is discretionary and is to be determined by the presence of a public benefit conferred by relator seeking the disclosure. Moreover, since the award is punitive, reasonableness and good faith of the respondent is refusing to make disclosure may also be considered." State ex rel Multimedia, Inc. v. Whalen (1990), 51 Ohio St. 3d 99, 100.State ex rel. Beacon Journal Publ. Co. v. Maurer (2001), 91 Ohio St. 3d 54, 58."The award of attorney fees under R.C. 149.43 (C)is not mandatory." State ex rel. Fox v. Cuyahoga Cty. Hosp. Sys. (1988), 39 Ohio St.3d 108, paragraph two of the syllabus. In exercising discretion in this determination, "courts consider the reasonableness of the government's failure to comply with the public records request and the degree to which the public will benefit from release of the records in question. "State ex rel. Wadd v. Cleveland (1998), 81 Ohio St.3d 50, 54State ex rel WBNS TV, Inc. v Dues (2004), 101 Ohio St. 3d 406, 415. But see Justice Douglas dissenting opinion in State ex rel Olander v. French (1997), 79 Ohio St. 3d 176, 180-181 wherein he is joined by Justices Resnick and Sweeney:Once again a majority applies the wrong test in determining the issue of entitlement to attorney fees for a plaintiff who succeeds in an R.C. 149.43 public records case. The statute does not say an award is discretionary. The statute does not say that a court "should consider the reasonableness of the government's failure to comply" with the law. The statute does not say that a court should consider "the degree to which the public will benefit from release of the records in question." The history of the statute and the confirmation of the policy and rule as so clearly and concisely set forth by Justice Francis E. Sweeney in State ex rel Pennington v. Gundler (1996), 75 Ohio St. 3d 171, 175-178, 661 N.E. 2d 1049, 1052-1054 (F.E. Sweeney, J., concurring in part and dissenting in part), should have, by this late date, laid the issue to rest. "Hope springs eternal in the human breast." Pope, Essay on Man. The longer we keep giving encouragement (by not awarding attorney fees) to those [*181] who choose to ignore the public records law, the more we will see violations of the law. 2 ________________________FRANCIS E. SWEENEY, SR., J, concurring in part and dissenting in part. This court has taken great strides recently in construing the public records law to ensure that records which belong to the people are open to the people without restriction. However, we could not have held as we did if the General Assembly had notprovided such clear language in the law. Our job has always been to interpret the law as written. Today, we take one more step forward in this endeavor by overruling Northwood and holding that it is not necessary that a judgment actually be entered in the prevailing party's favor before an award of attorney fees may be entered. I wholeheartedly agree with this decision. However, I part ways with the majority for its summary disposition on the issue of whether attorney fees are mandatory. I believe this court should revisit its decision in State ex rel Fox v. Cuyahoga Cty Hosp Sys (1988), 39 Ohio St. 3d 108, 529 N.E. 2d 443, paragraph two of the syllabus. In so doing, this court should decide that where the award of attorney fees is proper, that "