By Dennis Hetzel, Executive Director
We don’t issue many news releases at the ONA, but the Ohio Supreme Court recently issued a decision on open records that was so troubling, we felt we had no choice.
The court, in its Feb. 18 ruling, has made it all but impossible to collect attorney fees in records’ cases. The implication of this is obvious to most readers of this column, but everyday citizens may not grasp the impact, which is why it is important to editorialize about the ruling.
Few individuals or organizations have the resources to litigate cases in which you have no real likelihood of recouping your costs even when you’re right. A public records case can cost thousands, even $100,000 or more, to litigate. Plus, the maximum fine under the law only is $1,000. This decision gives a huge advantage to obstinate officials.
For those who haven’t seen the news release, we are sharing it again today along with links to some news articles and editorials that already have appeared around the state. We are actively working on a statutory “fix” to correct this decision and hope to find a willing legislator to carry the proposal as soon as it is completed.
Here is the news release we sent around the state last week:
Columbus, Ohio (Feb. 19, 2014) – Two Ohio Supreme Court decisions denying attorney fees to a woman who fought the city of South Euclid for public records represent major setbacks to the cause of open government in Ohio, according to the Ohio Newspaper Association.
“This is an egregious case,” said Dennis Hetzel, executive director of the ONA. “The city stonewalled the citizen requesting the information for months, and she even had to get an accountant to show that records the city claimed it didn’t have really existed.”
The court ruled on Feb. 18 in two separate cases brought by Emilie DeFranco against South Euclid that while she was entitled to damages up to a maximum of $1,000 because of the city’s unresponsiveness, state statutes meant she wasn’t entitled to recover legal fees.
“Unlike many other states, Ohio citizens have few options other than going to court if their requests are rebuffed,” Hetzel said. “Public-records cases aren’t typical lawsuits. The relief you want is the record, not money, and you shouldn’t have to be wealthy to fight City Hall. In this decision, the court has made it much more difficult to recover attorney fees.”
In its ruling, the court said a statutory change in 2007 meant that attorney fees only could be rewarded if a court ordered the records to be produced. The city reportedly turned over the requested records before a court order had to be issued.
In a dissent, Justice Sharon Kennedy said the majority opinion distorted the meaning of the statute, which describes situations in which a court must award fees and others in which the awarding of fees is optional.
“If no fees could be awarded unless the court had ordered a party to produce records, it would allow a public office to sit on a public-records request until a case was filed and then turn over the records before the court had a chance to issue an order,” Kennedy wrote.
Cleveland attorney and ONA counsel Louis Colombo strongly agreed with Kennedy’s interpretation.
“This is not what the legislature intended in the 2007 amendments that were designed to liberalize the public records law, or what the language of the statute provides,” Colombo said.
Hetzel said that ONA hopes the Ohio Supreme Court will reconsider the ruling. “In the meantime,” he said, “we will approach legislators to correct the impact of this decision even though we believe the current law is quite clear.”
Reference and coverage links:
- 2012-1704. State ex rel. DiFranco v. S. Euclid, Slip Opinion No. 2014-Ohio-538.
- 2012-1893. State ex rel. DiFranco v. S. Euclid, Slip Opinion No. 2014-Ohio-539.
- Editorial: Bad law or bad ruling … either way, lawmakers should ensure public can access records (Columbus Dispatch)
- Editorial: Ohio Supreme Court rulings are a blow to Ohio Sunshine Laws (Sidney Daily News)
- Court rules attorney fees not mandatory (Columbus Dispatch)
- Ohio Supreme Court says South Euclid liable for damages for slow response on public records request (Plain Dealer)