State ex rel. Calvary v. City of Upper Arlington, No. 99-2240.

• Court: United States State Supreme Court of Ohio
• Writing for the Court: Per Curiam.
• Citation: 89 Ohio St.3d 229,729 NE 2d 1182
• Decision Date: 28 June 2000
• Docket Number: No. 99-2240.
• Parties: THE STATE EX REL. CALVARY v. CITY OF UPPER ARLINGTON ET AL.

89 Ohio St.3d 229
729 NE 2d 1182

THE STATE EX REL. CALVARY
v.
CITY OF UPPER ARLINGTON ET AL

No. 99-2240.

Supreme Court of Ohio.

Submitted April 25, 2000.

Decided June 28, 2000.

89 Ohio St.3d 230

James C. Becker, for relator

Sharon H. Pfancuff, Upper Arlington City Attorney, for respondents.

Daniel S. Knisley, urging granting the writ for amicus curiae, Common Cause of Ohio.

Per Curiam.

Mandamus

Calvary requests a writ of mandamus to compel respondents to provide her with access to the December 10 collective bargaining agreement drafted by Upper Arlington and considered by the Upper Arlington City Council at three different meetings. Calvary received access to the records on December 29, the

89 Ohio St.3d 231

date the city released a copy of its December 10 draft, as well as the union's December 29 draft, to the public before council voted on Ordinance No. 221-99

Under the general rule, the provision of requested records to a relator in a public records mandamus action renders the mandamus claim moot. State ex rel. Wadd v. Cleveland (1998), 81 Ohio St.3d 50, 52, 689 N.E.2d 25, 27; State ex rel. Taxpayers Coalition v. Lakewood (1999), 86 Ohio St.3d 385, 392, 715 N.E.2d 179, 185; State ex rel. Nix v. Cleveland (1998), 83 Ohio St.3d 379, 382, 700 N.E.2d 12, 15.

Calvary contends that respondents' provision of the requested draft agreement does not moot her mandamus claim because the issues she raises are capable of repetition, yet evading review. 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, 118 S.Ct. 978, 988, 140 L.Ed.2d 43, 56; see, also, State ex rel. Beacon Journal Publishing Co. v. Donaldson (1992), 63 Ohio St.3d 173, 175, 586 N.E.2d 101, 102-103; State ex rel. Allstate Ins. Co. v. Gaul (1999), 131 Ohio App.3d 419, 437, 722 N.E.2d 616, 629.

Calvary has not established that this exception to the general mootness rule applies to her mandamus claim. Calvary has not shown that the time between submission of a tentative collective bargaining agreement to a municipal legislative authority and that authority's decision on the agreement is always so short as to evade review, nor has she demonstrated a reasonable likelihood that she will be unable to obtain subsequent agreements to be voted on by the Upper Arlington City Council. It seems unlikely that a written agreement would be submitted in the future to the city council that is subsequently disputed by the other party to the agreement.

Moreover, applying the general mootness rule to Calvary's mandamus claim here will not make the issues raised by Calvary evade our review. As in State ex rel. Gannett Satellite Info. Network v. Shirey (1997), 78 Ohio St.3d 400, 402, 678 N.E.2d 557, 560, we can address the issues raised by Calvary in the context of her request for attorney fees. And despite her claims to the contrary, she presented no evidence to support her assertion that respondents gave the public access to the draft agreement only five minutes before the city council's final vote at its December 29, 1999 meeting.

Therefore, because no exception to the general rule applies, we deny Calvary's mandamus claim based on mootness.

89 Ohio St.3d 232

Request for Attorney Fees

Calvary requests attorney fees. "A court may award attorney fees pursuant to R.C. 149.43 where (1) a person makes a proper request for public records pursuant to R.C. 149.43, (2) the custodian of the public records fails to comply with the person's request, (3) the requesting person files a mandamus action pursuant to R.C. 149.43 to obtain copies of the records, and (4) the person receives the requested public records only after the mandamus action is filed, thereby rendering the claim for a writ of mandamus moot." State ex rel. Pennington v. Gundler (1996), 75 Ohio St.3d 171, 661 N.E.2d 1049, syllabus.

It is uncontroverted that Calvary met the second, third, and fourth requirements specified in Pennington. Respondents refused Calvary's requests for access to the December 10 draft agreement; she filed a mandamus action to compel the requested access; and she received a copy of the requested record only after she had filed her mandamus action, and that access mooted her mandamus claim. At issue is the remaining Pennington requirement concerning the propriety of Calvary's request.

Respondents contend that because the December 10 draft agreement was not in final form and R.C. 4117.11(A)(1), (5), and (8), and 4117.21 exempted the draft agreement from public disclosure, Calvary's public records request was improper. Respondents' contention is meritless.

Even if a record is not in final form, it may still constitute a "record" for purposes of R.C. 149.43 if it documents the organization, policies, functions, decisions, procedures, operations, or other activities of a public office. Wadd, 81 Ohio St.3d at 53, 689 N.E.2d at 28 (access to preliminary, unnumbered accident reports not yet processed by Cleveland into final form); State ex rel. Cincinnati Post v. Schweikert (1988), 38 Ohio St.3d 170, 173, 527 N.E.2d 1230, 1232 (access to preliminary work product that had not reached its final stage or official destination); State ex rel. Dist. 1199, Health Care & Social Serv. Union, SEIU, AFCIO v. Gulyassy (1995), 107 Ohio App.3d 729, 734, 669 N.E.2d 487, 490-491 (access to drafts of proposed changes to collective bargaining statutes prepared by state agency); R.C. 149.011(G). The December 10 draft agreement is a record for purposes of R.C. 149.43 because it documents the activities of respondents Upper Arlington and its officials, i.e., it represents the city's version of what it and the union agreed on during collective bargaining, and the city relied on that version in submitting the draft to the city council for approval. See, e.g., State ex rel. Freedom Communications, Inc. v. Elida Community Fire Co. (1998), 82 Ohio St.3d 578, 581, 697 N.E.2d 210, 213; R.C. 149.011(G).

None of the statutes cited by respondents exempts the draft agreement from disclosure under R.C. 149.43. R.C. 4117.11(A)(1), (5), and (8) merely set forth

89 Ohio St.3d 233

various public employer unfair labor practices and do not exempt any records from disclosure as public records

R.C. 4117.21 provides that "[c]ollective bargaining meetings between public employers and employee organizations are private, and are not subject to section 121.22 [open meetings provisions] of the Revised Code." (Emphasis added.) In construing R.C. 4117.21, we first look at the statutory language, reading words used in context and applying rules of grammar and common usage. See State ex rel. Antonucci v. Youngstown City School Dist. Bd. of Edn. (2000), 87 Ohio St.3d 564, 566, 722 N.E.2d 69, 70-71. A "meeting" is defined as "[a]n assembly of persons, esp[ecially] to discuss and act on matters in which they have a common interest." Garner, Black's Law Dictionary (7 Ed.1999) 997.

The manifest language of R.C. 4117.21 exempts only collective bargaining meetings from public disclosure. R.C....