State ex rel. Pennington v. Gundler

• Decision Date: 04 March 1996
• Docket Number: No. 94-1658,94-1658
• Citation: 661 N.E.2d 1049,75 Ohio St.3d 171
• Parties: The STATE ex rel. PENNINGTON, Appellant v. GUNDLER, Clerk, Appellee.
• Court: Ohio Supreme Court

Page 171

75 Ohio St.3d 171

661 N.E.2d 1049

The STATE ex rel. PENNINGTON, Appellant v. GUNDLER, Clerk, Appellee.

No. 94-1658.

Supreme Court of Ohio.

Submitted Sept. 12, 1995.

Decided March 4, 1996.

Appellant, Kathy Pennington, was the defendant in a case brought in the Hamilton Municipal Court, Small Claims Division. In August 1993, Thomas N. Carroll, the owner of an independent paralegal service retained by Pennington's counsel, went to the office of the Clerk of the Hamilton Municipal Court to collect certified copies of Pennington's case file.

Deputy Clerk Cloud refused to give Carroll the requested documents. Carroll reminded the deputy clerk that the documents sought were public records, but the deputy clerk responded by stating that she would not give Carroll anything until she talked to Pennington's counsel. The deputy clerk then tried to place a telephone call to the attorney. The deputy clerk left a message on an answering machine, stating that she could not give the attorney's representative any documents until the attorney returned her earlier call.

In response to Carroll's request for a written explanation for her refusal to copy the public records, the deputy clerk typed out a note stating that she needed to discuss the status of the case with the attorney first. Carroll left the clerk's office without the requested public records.

On September 2, 1993, Pennington filed a mandamus action in the Twelfth District Court of Appeals seeking an order compelling the Clerk of the Hamilton Municipal Court to provide her with certified copies of the docket sheet and every other paper filed in her case, and requesting attorney fees. The clerk, predecessor in office of Maria Gundler, appellee, filed an answer attaching copies of the requested records and also mailed certified copies of these records to Pennington's counsel. Pennington conceded in the court of appeals that the clerk's production of the records rendered her claim for a writ a mandamus moot.

The court of appeals denied Pennington's request for attorney fees based upon State ex rel. Toledo Blade Co. v. Northwood (1991), 58 Ohio St.3d 213, 569 N.E.2d 904.

The cause is now before this court upon an appeal as of right.

John J. Mueller, Cincinnati, for appellant.

Hillary G. Miller, Hamilton Assistant Director of Law, for appellee.

MOYER, Chief Justice.

The issue presented in this appeal is whether a party seeking public records is entitled to an award of attorney fees where the custodian of the public records initially fails to comply with a proper request made pursuant to the Ohio Public Records Act, R.C. 149.43, then complies with the request in response to a mandamus action.

Pennington concedes that the clerk's production of the records rendered her prayer for mandamus moot, but contends that she is entitled to attorney fees under R.C. 149.43(C). It is not and cannot be disputed that the records requested by Pennington are public records and should have been given to the agent of Pennington's lawyer upon his request for the records. R.C. 1901.31(E).

Ohio law generally requires explicit statutory authorization or a finding of conduct that amounts to bad faith in order for a prevailing party to recover attorney fees. See, e.g., Vance v. Roedersheimer (1992), 64 Ohio St.3d 552, 556, 597 N.E.2d 153, 156; State ex rel. Caspar v. Dayton (1990), 53 Ohio St.3d 16, 20, 558 N.E.2d 49, 53. R.C. 149.43(C) provides the explicit statutory authorization for the award of attorney fees.

R.C. 149.43(C) provides:

"If a person allegedly is aggrieved by the failure of a governmental unit 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 person responsible for it to make a copy available to the person in accordance with division (B) of this section, the person allegedly aggrieved may commence a mandamus action to obtain a judgment that orders the governmental unit 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. * * * " (Emphasis added.)

It is well established that " '[i]n construing a statute, a court's paramount concern is the legislative intent in enacting the statute. * * * In determining legislative intent, the court first looks to the language in the statute and the purpose to be accomplished.' " State ex rel. Carter v. Wilkinson (1994), 70 Ohio St.3d 65, 66, 637 N.E.2d 1, 2, quoting State v. S.R. (1992), 63 Ohio St.3d 590, 594-595, 589 N.E.2d 1319, 1323. It is equally well settled that words used in a statute are to be taken in their usual, normal and customary meaning. R.C. 1.42. Further, absent ambiguity, the court must give effect to the plain meaning of a statute. State v. Waddell (1995), 71 Ohio St.3d 630, 631, 646 N.E.2d 821, 822.

In State ex rel. Fox v. Cuyahoga Cty. Hosp. Sys. (1988), 39 Ohio St.3d 108, 529 N.E.2d 443, we settled the issue of whether the awarding of attorney fees to a party who files a complaint pursuant to R.C. 149.43 is mandatory. Paragraph two of the syllabus states succinctly and clearly, "The award of attorney fees under R.C. 149.43(C) is not mandatory." We are not persuaded that the statute should now be interpreted differently.

The remaining question is whether a court may, in its discretion, award attorney fees to a party who has filed a complaint pursuant to R.C. 149.43 and has received requested documents before judgment is entered. That was the issue in State ex rel. Toledo Blade Co. v. Northwood (1991), 58 Ohio St.3d 213, 569 N.E.2d 904. We answered in a per curiam opinion that R.C. 149.43(C) "does not contemplate an award of attorney fees in mandamus actions rendered moot by the voluntary production of a record." Id. at 214, 569 N.E.2d at 905. Our conclusion was founded on our belief that to construe R.C. 149.43(C) as permitting an award of attorney fees even when a copy of the requested public record had been provided would discourage record production after a mandamus action has been commenced. Since Toledo Blade, we have observed other instances in which custodians of public records have denied access to public records only to turn them over to the person requesting them after a mandamus action had been filed. E.g., State ex rel. Clark v. Toledo (1992), 62 Ohio St.3d 452, 584 N.E.2d 662. In some instances, there are legitimate legal questions presented by a refusal to disclose records that are purportedly public. Exceptions "may not be self-evident on a document's face." State ex rel. Lowery v. Cleveland (1993), 67 Ohio St.3d 126, 128, 616 N.E.2d 233, 234. In other instances, requested records are clearly public and should be given to the person requesting them without the necessity of filing an action pursuant to R.C. 149.43. It would be difficult to imagine a case that demonstrates any more dramatically the latter circumstances than the case before us.

There can be no question that records sought by Pennington were public records and should have been given to Pennington in the form and within the time required by law. Pennington should not have been required to expend the resources and the time required to file a mandamus action in order to obtain public records from the Clerk of the Hamilton Municipal Court.

In view of the absence of an express statutory prohibition and the proclivity of some custodians of public records to force the filing of a mandamus action by a citizen to gain access to records that are obviously public, we hold that 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. Accordingly, we overrule Toledo Blade, supra.

The judgment is reversed and the cause is remanded to the court of appeals with instructions to determine whether Pennington should receive attorney fees.

Judgment reversed and cause remanded.

WRIGHT, PFEIFER and COOK, JJ., concur.

DOUGLAS, RESNICK and FRANCIS E. SWEENEY, Sr., JJ., concur in part and dissent in part.

FRANCIS E. SWEENEY, Sr., Justice, 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 not provided 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, they are also mandatory. I believe that this is the correct interpretation of R.C. 149.43 for the following reasons.

R.C. 149.43(C) provides:

"If a person allegedly is aggrieved by the failure of a governmental unit to promptly prepare a public record and to make it available to the person for inspection in accordance with division (B...