Denial of Writ In Public Records Case Affirmed, Attorney Fee Request Remanded for Further Hearing
2009-0696. State ex rel. Cincinnati Enquirer v. Ronan, Slip Opinion No. 2009-Ohio-5947.
Hamilton App. No. C-090155. Judgment affirmed in part and reversed in part, and cause remanded.
Moyer, C.J., and O'Connor, Lanzinger, and Cupp, JJ., concur.
Pfeifer, Lundberg Stratton, and O'Donnell, JJ., concur in part and dissent in part.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2009/2009-Ohio-5947.pdf 
(Nov. 18, 2009) The Supreme Court of Ohio today affirmed a decision of the 1st District Court of Appeals that denied a writ of mandamus sought by the Cincinnati Enquirer newspaper to compel disclosure of documents related to the Cincinnati Public Schools’ search for a new superintendent.
The Court also held, however, that the 1st District erred in dismissing the newspaper’s request for an award of attorney’s fees in the case on the basis that its records request was moot, and remanded the issue of attorney fees to the court of appeals for further proceedings.
The case involved a public records request filed by the Enquirer on Feb. 5, 2009, seeking copies of all documents that had been submitted to the school district by prospective candidates for the superintendent’s position. The district notified the Enquirer that candidates had been instructed to send all applications and supporting materials to a post office box by March 15, 2009, and that the district had not opened the post office box and intended to wait until after the deadline to retrieve the contents of the box and review all submissions at once. The district promised that it would make the documents available for inspection and copying promptly after it had retrieved them following the March 15 deadline.
Not satisfied with that response, the Enquirer filed suit seeking a writ of mandamus to compel immediate disclosure of the requested records, and also seeking recovery from the school district for attorney fees incurred in pursuing the mandamus claim. While that case was pending, the March 15 deadline passed. On March 16, 2009, the district opened the post office box and retrieved the contents. The district promptly produced copies of the requested documents, and provided them to the Enquirer the following day. The 1st District subsequently dismissed the newspaper’s mandamus petition as moot because the school district had already provided the records sought in the complaint. The court of appeals also dismissed the request for attorney fees, based on the mootness of the underlying mandamus claim. The Enquirer sought and was granted Supreme Court review of the 1st District’s rulings.
In a per curiam opinion joined by four justices, the Court today affirmed the judgment of the court of appeals denying mandamus, but cited its recent decision in Cincinnati Enquirer v. Heath (February 2009), which held that even where a mandamus claim for public records is properly dismissed as moot, “a claim for attorney fees in a public-records mandamus action is not rendered moot by the provision of the requested records after the (mandamus action) has been filed.” Based on its ruling in Heath, the Court held that the 1st District erred in dismissing the Enquirer’s attorney fee request based on the mootness of the mandamus action, and ordered the court of appeals to conduct further proceedings to consider the merits of the newspaper’s attorney fee request under the applicable provisions of the Public Records Act.
The majority opinion was joined by Chief Justice Thomas J. Moyer and Justices Maureen O’Connor, Judith Ann Lanzinger and Robert R. Cupp.
Justice Evelyn Lundberg Stratton entered a separate opinion that was joined by Justices Paul E. Pfeifer and Terrence O’Donnell in which she concurred with the majority holding that the Enquirer was not entitled to the requested writ, but dissented from the majority’s remand of the attorney fee issue to the court of appeals for further proceedings.
She wrote: “(B)ecause I believe that the Enquirer’s complaint lacked merit, I would also dismiss the claim for attorney fees. ... I believe that the requested documents did not constitute public records subject to R.C. 149.43 when the Enquirer made its initial request. On February 5, 2009, the contents of the post office box were not records that the school district had used ‘to document the organization, functions, policies, decisions, procedures, operations, or other activities of the office.’ R.C. 149.011(G). The district was not obligated to produce copies of the documents until it had used them to carry out the school district’s duties and responsibilities, at which point they became public records subject to inspection. ... Thus, there was no violation of R.C. 149.43, and the Enquirer’s complaint is meritless.”
Contacts
John C. Greiner, 513.629.2734, for the Cincinnati Enquirer.
Mark J. Stepaniak, 513.381.2838, for Cincinnati Public Schools superintendent Mary Ronan.
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