State, ex rel. Mayrides, v. Whitehall, 89AP-836

• Decision Date: 13 March 1990
• Docket Number: No. 89AP-836,89AP-836
• Parties: The STATE, ex rel. MAYRIDES, v. CITY OF WHITEHALL et al.
• Court: Ohio Court of Appeals

Page 225

62 Ohio App.3d 225

575 N.E.2d 224

The STATE, ex rel. MAYRIDES, v. CITY OF WHITEHALL et al.

No. 89AP-836.

Court of Appeals of Ohio, Tenth District, Franklin County.

Decided March 13, 1990.

Syllabus by the Court

1. R.C. 149.43 does not require the custodian of public records to provide copies of such records free of charge.

2. An award of attorney fees under R.C. 149.43(C) is inappropriate where the custodian's refusal to release public records was based on a good faith belief that the party requesting the records was unable to pay for copying costs.

3. A party who has been wrongfully refused access to public records is not entitled under R.C. 149.43(C) to receive copies of those records free of charge as a sanction for the wrongful refusal.

Edward M. Mayrides, pro se.

Ted Zwayer, City Atty., for respondents.

PEGGY L. BRYANT, Judge.

Relator has filed an original action in mandamus in this court pursuant to R.C. 149.43(C) (action in mandamus to obtain public records). Relator has requested that respondents provide him with a variety of public records relating to his arrest and conviction for rape.

Respondents admit that the records requested are disclosable under R.C. 149.43. Respondents do, however, argue that, because relator is unable to pay for the cost of copying the records, he is not entitled to the writ of mandamus.

Respondents are correct to the extent they argue that nothing in R.C. 149.43 explicitly requires them to provide documents free of charge. R.C. 149.43(B) states, in part, "[u]pon request, a person responsible for public records shall make copies available at cost * * *." (Emphasis added.) However, in his reply brief, relator asserts that he never said he was unwilling to pay. Relator contends he suggested that the city of Whitehall absorb the cost of copying only as "an afterthought" because the imposition of copying costs would serve "as a sanction." Given that relator is willing to pay for copying, we conclude that respondents present no valid objection to relator's obtaining the documents.

Relator has also requested an award of attorney fees in his brief (although relator's petition for a writ of mandamus does not mention attorney fees). In a mandamus action under R.C. 149.43(C), a court may award " * * * reasonable attorney's fees to the person that instituted the mandamus action. * * * " In this case, since plaintiff is litigating pro se, an issue arises whether a person not represented by an attorney may obtain an award of attorney fees under R.C. 149.43. Cases interpreting the Freedom of Information Act, the federal analogue to Ohio's public records law, are divided on the issue. See, generally, Annotation, Pro Se Litigant as Entitled to Award of Attorneys' Fees for Value of His Own Services Rendered in Lawsuit Under Freedom of Information Act (5 USCS § 552) (1982), 56 A.L.R. Fed. 573.

However, we need not address the question of whether pro se litigants in general may recover attorney fees under R.C. 149.43(C) because relator is not entitled to attorney fees for reasons other than his pro se status. An award of attorney fees under R.C. 149.43(C) is not mandatory; rather, the award is within the discretion of the court. State, ex rel. Beacon Journal Publishing Co., v. Akron Metro. Hous. Auth. (1989), 42 Ohio St.3d 1, 2, 535 N.E.2d 1366, 1367; State, ex rel. Fox, v. Cuyahoga Cty. Hosp. System (1988), 39 Ohio St.3d 108, 529 N.E.2d 443, paragraph two of the syllabus. When exercising its discretion in deciding whether to award attorney fees, a court may...