State ex rel. Difranco v. City of S. Euclid

• Decision Date: 19 February 2014
• Docket Number: No. 2012–1704.,2012–1704.
• Citation: 7 N.E.3d 1136,138 Ohio St.3d 367
• Court: Ohio Supreme Court
• Parties: The STATE ex rel. DiFRANCO, Appellant, v. The CITY OF SOUTH EUCLID et al., Appellees.

138 Ohio St.3d 367

7 N.E.3d 1136

The STATE ex rel. DiFRANCO, Appellant,

v.The CITY OF SOUTH EUCLID et al., Appellees.

No. 2012–1704.

Supreme Court of Ohio.

Submitted June 4, 2013.

Decided Feb. 19, 2014.

The Law Firm of Curt C. Hartman and Curt C. Hartman, Amelia; and Finney, Stagnaro, Saba & Patterson Co., L.L.P., and Christopher P. Finney, Cincinnati, for appellant.

Michael P. Lograsso, Law Director, for appellees.

PER CURIAM.

{¶ 1} This is a public-records mandamus case originally brought in the Eighth District Court of Appeals. All parties agree that the writ claim became moot when all the requested records were produced after the filing and during the pendency of the mandamus action. The remaining issue is whether Emilie DiFranco is, as she claims, entitled to statutory damages and attorney fees, given that (i) the city delayed two months in providing any response to the request at all and (ii) the original production of documents was incomplete—only after DiFranco presented an expert affidavit indicating that there were additional records to be produced did the city complete its production of the requested records.

{¶ 2} The Eighth District denied both statutory damages and attorney fees. After granting summary judgment to the city on mootness grounds, the appellate court concluded, “DiFranco has failed to establish any viable public benefit that would permit this court to award statutory damages and/or attorney fees.” 2012-Ohio-4399, 2012 WL 4462013, ¶ 10. DiFranco has appealed.

{¶ 3} With respect to DiFranco's claim for statutory damages, we hold, contrary to the decision below, that the question whether DiFranco demonstrated sufficient public benefit is irrelevant. In authorizing an award of such damages, R.C. 149.43(C)(1) does not condition that award on applying the public-benefit test. We therefore reverse the Eighth District's denial of statutory damages, and we remand with instructions that the court of appeals consider the amount of damages in light of the statutory criteria, with particular consideration to be given to the applicability of the mitigating factors in R.C. 149.43(C)(1)(a) and (b).

{¶ 4} As for DiFranco's claim for attorney fees, we hold that it is barred here for a reason not stated by the Eighth District. R.C. 149.43(C)(2)(b) conditions any award of attorney fees on the court's having “render[ed] a judgment that orders the public office or the person responsible for the public record to comply with” the public-records law. Because the judgment entered by the court of appeals disposed of the case on grounds of mootness, the plain language of the statute prohibits an award of attorney fees.

{¶ 5} Accordingly, we reverse in part and affirm in part, and we remand with instructions that the appellate court determine the proper amount of statutory damages to be awarded.

Facts

{¶ 6} DiFranco sent a public-records request by certified mail to Keith Benjamin on October 13, 2011. Benjamin is an official of the city of South Euclid who serves as its records custodian. DiFranco's request sought nine categories of public records. (Benjamin and South Euclid are both appellees in this matter, and will be referred to collectively as “the city.”) The certified-mail receipt evidences the request's arrival at the city's offices on October 14, 2011.

{¶ 7} The city provided no response of any kind to DiFranco between its receipt of the request on October 14 and the filing of DiFranco's mandamus action on December 16, 2011—a lapse of two months. After DiFranco filed the mandamus action in the Eighth District, Benjamin saw the request for the first time on December 19, when the city was served with the mandamus complaint. On December 20, 2011, Benjamin electronically produced a set of responsive documents, which did not contain all the requested items.

{¶ 8} On December 27, 2011, the city filed its answer and motion to dismiss. The motion asked for dismissal on grounds of mootness because the city had produced the records the week before.¹ The city attributed its delay in responding to an internal office difficulty in processing the mail. DiFranco's memorandum in opposition,filed on January 13, 2012, argued that she was entitled to statutory damages and attorney fees under the standards set forth in the statute, on account of the city's two-month delay in providing any response. The city's reply, filed on March 16, argued that DiFranco had failed to prove a public benefit as a prerequisite to obtaining attorney fees and also argued that damages or fees were not mandatory because, although the city received the request in October, the records custodian did not actually lay eyes on it until December 19.

{¶ 9} The court converted the motion to dismiss to one for summary judgment on account of the evidentiary submissions in support of the motion.

{¶ 10} On February 8, 2012, DiFranco submitted the affidavit of Brian Johnson, a certified public accountant, who offered his conclusion that certain documents that would be responsive to DiFranco's request must exist but had not been produced. By order dated July 3, 2012, the court of appeals required the city to address the points raised by Johnson's affidavit and to produce any responsive documents. Thereafter, on July 20, the city filed a certification, stating that additional documents had been produced on June 18 and describing those documents in detail. The filing also certified that no further documents were outstanding.

{¶ 11} In her August 8 response to the city's certification, DiFranco reiterated her entitlement to statutory damages and attorney fees in light of the chronology of the case, and she specifically cited the mandatory criteria for both damages and fees.

{¶ 12} Finally, on September 26, 2012, the Eighth District issued its decision and judgment, which dismissed the mandamus complaint as moot and denied both statutory damages and attorney fees on the grounds that DiFranco had not established a “public benefit.” DiFranco appealed.

Analysis

{¶ 13} DiFranco claims entitlement to both damages and fees under the mandatory-fee criteria enacted in the September 2007 amendments to R.C. 149.43, the public-records law. Sub.S.B. No. 9, 151 Ohio Laws, Part IV, 8219, 8236. The argument calls for a construction and application of those statutory amendments and therefore presents a question of law that we review de novo on appeal. See Akron Centre Plaza, L.L.C. v. Summit Cty. Bd. of Revision, 128 Ohio St.3d 145, 2010-Ohio-5035, 942 N.E.2d 1054, ¶ 10.

{¶ 14} To be sure, when the appeals court renders a decision on a discretionary issue, we defer to that court's discretion as the originating court. See State ex rel. Cranford v. Cleveland, 103 Ohio St.3d 196, 2004-Ohio-4884, 814 N.E.2d 1218, ¶ 24, quoting State ex rel. Dillery v. Icsman, 92 Ohio St.3d 312, 314, 750 N.E.2d 156 (2001) (“ ‘In an appeal of a judgment granting or denying fees in a public record case, we review whether the court abused its discretion’ ”); State ex rel. Doe v. Smith, 123 Ohio St.3d 44, 2009-Ohio-4149, 914 N.E.2d 159, ¶ 15–17 (abuse-of-discretion standard applied in reviewing fee issue that did not invoke mandatory-fee criteria and was therefore a discretionary-fee case). The city relies on Cranford and urges that we defer to the court of appeals' judgment, but deference would be due only when the grant or denial of attorney fees occurred under discretionary criteria. This case presents an issue of damages and attorney fees authorized by specific statutory criteria; therefore, a determination of entitlement to damages and fees is not a discretionary decision of the court below, but rather a determination of how to apply legal standards. That determination lies within this court's authority to review legal issues de novo on appeal.

A. The public-benefit test was developed to guide the discretionary award of attorney fees before the 2007 amendments

{¶ 15} “Effective September 29, 2007, R.C. 149.43 was amended, and subsection (C) now provides new standards for awarding attorney fees in public-records mandamus cases.” State ex rel. Toledo Blade Co. v. Seneca Cty. Bd. of Commrs., 120 Ohio St.3d 372, 2008-Ohio-6253, 899 N.E.2d 961, ¶ 48. This amendment “[s]pecifies certain circumstances in which a court must award * * * reasonable attorney fees to the aggrieved person in a mandamus action, and certain circumstances in which a court must reduce or deny an award of * * * attorney fees to the aggrieved person.” Legislative Service Commission Final Analysis of Sub.H.B. 9, 126th General Assembly, http:// www. lsc. state. oh. us/ bills/ previousga. htm. ²

{¶ 16} Prior to the 2007 amendments, R.C. 149.43(C) generally referred to attorney fees as available relief but did not specify criteria under which such fees ought to be awarded. E.g., 2001 Sub.H.B. No. 196, 149 Ohio Laws, Part IV, 6395, 6402. Under that earlier version of the statute, this court had held that “[a]n award of attorney fees under R.C. 149.43 is not mandatory” and that “[i]n exercising its discretion” to determine the propriety of a fee award, “a court considers the reasonableness of the government's failure to comply with the public-records request and the degree to which the public will benefit from the release of the records in question.” State ex rel. Beacon Journal Publishing Co. v. Akron, 104 Ohio St.3d 399, 2004-Ohio-6557, 819 N.E.2d 1087, ¶ 59.See also Cranford, 103 Ohio St.3d 196, 2004-Ohio-4884, 814 N.E.2d 1218, ¶ 26 (attorney fees not allowed because the records requested “were mostly beneficial to [the relator], and he ultimately received the records in time for his civil service commission hearing”).

{¶ 17} The 2007 amendments provide generally that a court “may” award attorney fees under R.C. 149.43(C)(2)(b) if the court has issued a judgment ordering compliance with the public-records law. But immediately thereafter, the amendments carve out two situations in which attorney-fee awards are mandatory...