DiFranco decision should not discourage citizens from making a public records request

Earlier this year, The City of Cleveland Heights was charged with trying to conceal or withhold from reporters incident reports of violent crimes. The reports were eventually made public, but only after a lawyer was hired to force the city to comply with the Public Records Act.

Average citizens, not just reporters, are entitled to request public records. A citizens’ lawsuit was filed against the City of Cleveland Heights about the failure to conduct a public hearing on the controversial Taylor Road rehabilitation project. The outcome of the case was that the city paid thousands of dollars to settle the public records claims—including a request for reimbursement of attorney fees that were incurred.

Many community activists have criticized the recent Ohio Supreme Court decision in State ex rel. DiFranco v. South Euclid, Case 2014-Ohio-539, as weakening the Public Records Act by limiting the recovery of attorney fees. But a closer reading can support the opposite conclusion. 

The Ohio Supreme Court rejected an award of attorney fees even though such fees are characterized by the Ohio Revised Code (ORC) as mandatory. Admittedly, the City of South Euclid had failed to produce public records for nearly six months, due to “an internal breakdown in communication.” Once the public records lawsuit was filed, the oversight was discovered and the city promptly produced the requested records. 

The genesis of the issue in DiFranco is a poorly worded phrase in the Public Records Act, specifically, in ORC 149.43(C)(2)(b). The statute begins with a precondition: “if” the court orders the public entity to produce the requested records then the court “may” award attorney fees to the citizen who made the request. It logically follows that if the court has not ordered the records to be produced—for whatever reason—then the court does not have the discretion to award attorney fees. 

The statute goes on to define the circumstances in which the court “shall” award attorney fees, that is, where an attorney fee award is mandatory. The statute awkwardly fails to clarify whether an order to produce public records is a precondition for mandatory attorney fees like it is for discretionary attorney fees. So in DiFranco, the city took advantage of the ambiguity by turning over the requested records as soon as the lawsuit was filed. The court did not have time to consider whether to issue an order and, if so, how broad or narrow the order would be.

The DiFranco decision gives citizens and their attorneys the incentive to remind the government of their unfulfilled requests before resorting to litigation. The practical effect is that attorney fee awards will be reserved for belligerent and uncooperative public entities. A city that is merely negligent or disorganized, as South Euclid appears to have been, will have the chance to correct its omission before it will be at risk of an onerous attorney fee award.

In the event that a lawsuit is filed, the DiFranco decision gives the governmental entity the incentive to turn over the requested documents promptly before the citizen’s legal fees begin to mount. It is better for the citizen to receive the documents promptly after filing suit—as DiFranco did—than to be dragged through months of costly and time-consuming litigation. Both sides benefit from the immediate production of requested records before the court even has had the chance to consider issuing an order.

The Ohio Supreme Court, by issuing the DiFranco decision, was only doing its job—to interpret the meaning of a statute that was not as understandable as it should have been. The statute did not make it clear whether a court order is required before the remedy of mandatory attorney fees becomes available to the citizen. The Supreme Court had to choose whether an award of mandatory attorney fees could be awarded even if the government entity had not been formally ordered to produce the public records, and it selected one of the two available choices.

The Ohio Legislature, by adding or rewriting only a few words when it passed the law, could have avoided the ambiguity. Grammar teachers and wordsmiths may well appreciate this case as a remarkable example of how a poorly-crafted paragraph has potentially impacted hundreds of Ohio cities and villages, and thousands of Ohio citizens. 

Now that the Ohio Supreme Court has issued its interpretation of the ambiguous statute, the Legislature can and should fix the problem. The Legislature has amended or modified the Public Records Act many times since it was first enacted in 2004, and there is no reason why one more revision—to add clarity—should not be made.

In any event, an award of attorney fees is not the goal of the Public Records Act—it is a means to the end. Governmental entities can and do make mistakes, and the attorney fee clause is not a weapon for someone to use to play “gotcha!” If a citizen makes the city or village aware—in plain English—that a lawsuit will soon be filed if an overdue public records request is not honored, then the city has the chance to cure its oversight and produce the records before the citizen begins to incur substantial attorney fees. If a lawsuit must be filed, it is better that the requested records be produced immediately without the delay, cost and risk of trying to obtain a formal court order.

The DiFranco decision gives both the citizen and the public body the incentive to turn their attentions to the essential issue of the public records, and to not run up their own attorney fees in a protracted battle over whether or not attorney fees will be awarded. In its own way, the Ohio Supreme Court has made it easier and more cost-effective for citizens to obtain public records. The decision should not discourage anyone from making a public records request; citizens should feel reassured that the focus is now more on records and less on attorneys.

Douglas Whipple

Douglas Whipple is an 18-year resident of Cleveland Heights. He and his wife filed the lawsuit about the Taylor Road rehabilitation project. He is a member of the Future Heights Board of Directors, but is solely responsible for the opinions expressed herein.

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Volume 7, Issue 5, Posted 2:25 PM, 05.05.2014