State ex rel. Dillery v. Icsman, No. 00-2151.

CourtUnited States State Supreme Court of Ohio
Writing for the CourtPer Curiam.
Citation750 NE 2d 156,92 Ohio St.3d 312
Decision Date18 July 2001
Docket NumberNo. 00-2151.
PartiesTHE STATE EX REL. DILLERY, APPELLEE, v. ICSMAN, LAW DIR., ET AL., APPELLANTS.

92 Ohio St.3d 312
750 NE 2d 156

THE STATE EX REL. DILLERY, APPELLEE,
v.
ICSMAN, LAW DIR., ET AL., APPELLANTS

No. 00-2151.

Supreme Court of Ohio.

Submitted May 30, 2001.

Decided July 18, 2001.


K. Ronald Bailey & Associates Co., L.P.A., and K. Ronald Bailey, for appellee.

Isaac, Brant, Ledman & Teetor, Mark R. Weaver and Barbara Kozar Letcher, for appellants.

Betty D. Montgomery, Attorney General, and Stephen P. Carney, Associate Solicitor, urging reversal for amicus curiae Attorney General of Ohio.

Per Curiam.

The Sandusky Police Department received several reports about appellee, Kelly Dillery, who is handicapped, riding in a motorized wheelchair on city roads. At times, Dillery allegedly operated her wheelchair on Sandusky streets while her child sat on her lap. Dillery was ultimately charged with being a pedestrian in the roadway and with child endangering.

On December 3, 1998, Dillery's criminal defense attorney requested that appellant Sandusky Police Chief Robert Runner provide copies of "any and all records generated, in the possession of your department, containing any reference whatsoever to Kelly Dillery." On the same date, a paralegal employed by Dillery's attorney requested that appellant Sandusky Public Works Superintendent Randy Whitman provide copies of records concerning repairs and replacements

92 Ohio St.3d 313
for certain sections of three city streets from July 26, 1990, until the date of the request. On December 8, 1998, appellant Sandusky Law Director Donald C. Icsman denied both requests because of Dillery's pending criminal charges and referred her to Crim.R. 16, which governs discovery in criminal proceedings. While her charges were pending, Dillery made no request for discovery under Crim.R. 16

In February 1999, the managing editor of the Sandusky Register requested that the city provide him with copies of various records, including all Sandusky police reports concerning Kelly Dillery and a detailed report of all wheelchairrelated incidents involving persons other than Dillery. The editor specified that the reports relating to Dillery consist of citations, complaints, and warnings. The city subsequently provided the newspaper with approximately sixty pages of police reports on Dillery.

Dillery was found not guilty of child endangering and, although she was convicted of being a pedestrian in the roadway, that conviction was reversed on appeal because she had not been prosecuted within the time specified in R.C. 2945.71. See State v. Dillery (Mar. 31, 2000), Erie App. No. E-99-027, unreported, 2000 WL 331386.

On May 28, 1999, Dillery was again charged with being a pedestrian in the roadway, and after she demanded discovery under Crim.R. 16, Sandusky provided her with copies of police reports related to the new charge. The charge was subsequently dismissed upon the request of the city.

On June 10, 1999, Dillery filed a complaint in the United States District Court for the Northern District of Ohio seeking relief under the Americans with Disabilities Act and other federal statutes. In response to her discovery requests in that action, the city provided Dillery with over three thousand documents.

On June 16, 1999, Dillery filed a complaint in the Court of Appeals for Erie County. In her complaint, as subsequently amended, Dillery prayed for a writ of mandamus to compel appellants, Icsman, Runner, and Whitman, to provide her with copies of the records that she had requested on December 3, 1998. Appellants subsequently provided Dillery with the requested records, and the court of appeals ordered evidence and briefing on the issue of whether Dillery was entitled to an award of attorney fees. The court of appeals also ordered Dillery to submit her itemized proposed billing statement for attorney fees.

The parties filed evidence and briefs, and Dillery submitted a fee statement detailing $9,337.50 in attorney fees for 39.25 billable hours. Dillery's fee statement also listed $719.09 in telephone, copying, mailing, filing, and paralegal expenses.

92 Ohio St.3d 314
In October 2000, the court of appeals entered a judgment in which it found Dillery's mandamus claim moot, but ordered appellants to pay Dillery $5,887.50 (based upon a lower hourly rate) in attorney fees and $719.09 in litigation expenses for a sum of $6,606.59

This cause is now before the court upon appellants' appeal as of right and their request for oral argument. The Attorney General has filed an amicus curiae brief in support of appellants.

Appellants assert that the court of appeals erred in granting attorney fees and expenses. In an appeal of a judgment granting or denying fees in a public records case, we review whether the court abused its discretion. See State ex rel. Mazzaro v. Ferguson (1990), 49 Ohio St.3d 37, 41, 550 N.E.2d 464, 468. An abuse of discretion implies an unreasonable, arbitrary, or unconscionable attitude. State ex rel. Wilke v. Hamilton Cty. Bd. of Commrs. (2000), 90 Ohio St.3d 55, 61, 734 N.E.2d 811, 818. For the reasons that follow, we find that the court of appeals abused its discretion in granting attorney fees related to Dillery's first records request, and in granting expenses regarding both requests, and reverse the judgment and remand the cause for further proceedings consistent with this opinion.

Under the applicable test, "[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 requested 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. Appellants concede that the second, third, and fourth requirements of the Pennington test have been established.

Appellants initially contend that the court of appeals erred in awarding fees to Dillery because she did not establish the first Pennington requirement, i.e., a proper request for public records. We agree in part.

Dillery's first request to the Sandusky Police Chief was overbroad. Despite her contentions on appeal that her request was limited to "routine [offense] and incident reports," her request was much more general: "any and all records generated * * * containing any reference whatsoever to Kelly Dillery." Because Dillery did not specify in her first request that she wanted access only to offense and incident reports, she failed in her duty to identify the records she wanted with sufficient clarity. State ex rel. Taxpayers Coalition v. Lakewood (1999), 86 Ohio St.3d 385, 391, 715 N.E.2d 179, 185, quoting State ex rel. Fant v. Tober (May

92 Ohio St.3d 315
20, 1993), Cuyahoga App. No. 63737, unreported, 1993 WL 173743, affirmed (1993), 68 Ohio St.3d 117, 623 N.E.2d 1202

Moreover, Dillery's request was so broad that it encompassed records that were exempt from disclosure under the Public Records Act, R.C. 149.43. "Except as required by Crim.R. 16, information assembled by law enforcement officials in connection with a probable or pending criminal proceeding is, by the work product exemption found in R.C. 149.43(A)(2)(c), excepted from required release as said information is compiled in anticipation of litigation." State ex rel. Steckman v. Jackson (1994), 70 Ohio St.3d 420, 639 N.E.2d 83, paragraph five of the syllabus.

In Steckman, we noted that permitting broad requests for all records in connection with a particular criminal defendant renders Crim.R. 16 meaningless because there is no right of prosecutors for reciprocal discovery under R.C. 149.43. See Crim.R. 16(C); Steckman, 70 Ohio St.3d at 428-429, 639 N.E.2d at 90 ("The playing field is not level as there is no reciprocal right of prosecutors to obtain additional discovery beyond Crim.R. 16[C]."). In overruling previous precedent, we observed:

"[C]ourts (and the persons and agencies involved with producing and keeping such records) are regularly faced with demands to release the entire contents of a prosecutor's file and all the records accumulated and maintained by a police department in connection with a particular defendant and his or her criminal proceeding. Because of our cases, the exceptions to required disclosure * * * have virtually been rendered meaningless. Additionally,...

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55 practice notes
  • Ebersole v. City of Powell, Case No. 2018-00478PQ
    • United States
    • Court of Claims of Ohio
    • October 9, 2018
    ...records which would contain the information of interest to the requester." Fant v. Tober, supra. See State ex rel. Dillery v. Icsman, 92 Ohio St.3d 312, 314, 750 N.E.2d 156 (2001) ("any and all records * * * containing any reference whatsoever to [the requester]"); State ex rel. O'Shea & As......
  • State ex rel. Stevenson v. Mayor of E. Cleveland, No. 110221
    • United States
    • United States Court of Appeals (Ohio)
    • March 29, 2021
    ...a certain subject is generally the type of request that has been found to be overly broad and vague. State ex rel. Dillery v. Icsman, 92 Ohio St.3d 312, 314, 750 N.E.2d 156 (2001). Stevenson's records request was not limited to specific records and failed to identify the records she sought ......
  • Requester v. Argyle, Case No. 2017-00891-PQ
    • United States
    • Court of Claims of Ohio
    • January 26, 2018
    ...search through all office communications, employment, fiscal, and other categories of records. In State ex rel. Dillery v. Icsman, 92 Ohio St.3d 312, 314, 750 N.E.2d 156 (2001), the Court found that Dillery's demand for "any and all records generated" by the office with her name failed to s......
  • Fairley v. Cuyahoga Cnty. Prosecutor, Case No. 2019-00955PQ
    • United States
    • Court of Claims of Ohio
    • February 21, 2020
    ...records exception from a second public office that by its terms applies only to the second office. State ex rel. Dillery v. Icsman, 92 Ohio St.3d 312, 315-316, 750 N.E.2d 156 (2001) (repair records kept by public works department remain public records, regardless of their protected status i......
  • Request a trial to view additional results
55 cases
  • Ebersole v. City of Powell, Case No. 2018-00478PQ
    • United States
    • Court of Claims of Ohio
    • October 9, 2018
    ...records which would contain the information of interest to the requester." Fant v. Tober, supra. See State ex rel. Dillery v. Icsman, 92 Ohio St.3d 312, 314, 750 N.E.2d 156 (2001) ("any and all records * * * containing any reference whatsoever to [the requester]"); State ex rel. O'Shea & As......
  • State ex rel. Stevenson v. Mayor of E. Cleveland, No. 110221
    • United States
    • United States Court of Appeals (Ohio)
    • March 29, 2021
    ...a certain subject is generally the type of request that has been found to be overly broad and vague. State ex rel. Dillery v. Icsman, 92 Ohio St.3d 312, 314, 750 N.E.2d 156 (2001). Stevenson's records request was not limited to specific records and failed to identify the records she sought ......
  • Requester v. Argyle, Case No. 2017-00891-PQ
    • United States
    • Court of Claims of Ohio
    • January 26, 2018
    ...search through all office communications, employment, fiscal, and other categories of records. In State ex rel. Dillery v. Icsman, 92 Ohio St.3d 312, 314, 750 N.E.2d 156 (2001), the Court found that Dillery's demand for "any and all records generated" by the office with her name failed to s......
  • Fairley v. Cuyahoga Cnty. Prosecutor, Case No. 2019-00955PQ
    • United States
    • Court of Claims of Ohio
    • February 21, 2020
    ...records exception from a second public office that by its terms applies only to the second office. State ex rel. Dillery v. Icsman, 92 Ohio St.3d 312, 315-316, 750 N.E.2d 156 (2001) (repair records kept by public works department remain public records, regardless of their protected status i......
  • Request a trial to view additional results

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