COLUMBUS — 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.”