State ex rel. Toledo Blade Co. v. City of Northwood

Per Curiam. The complaint in mandamus is dismissed as being moot. As to the issue of awarding reasonable attorney fees, the Blade contends that it is entitled to such an award pursuant to R.C. 149.43(C). We disagree. R.C. 149.43(C) provides, in part: “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 him 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 him 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. * * *” [214] In State, ex rel. Fox, v. Cuyahoga Cty. Hosp. System (1988), 39 Ohio St. 3d 108, 529 N.E. 2d 443, we determined that R.C. 149.43(C) does not require the award of attorney fees but makes such an award discretionary. We do not believe, however, that our discretion to make such an award extends to mandamus actions rendered moot by the voluntary production of a record, as here. R.C. 149.43(C) permits an allegedly aggrieved person to commence a mandamus action “to obtain a judgment” that orders the production of a public record and that awards reasonable attorney fees. We do not construe this language to merely state the obvious: that actions are commenced to obtain judgments. Rather, we construe the phrase as limiting the circumstances in which a party may apply for an award of attorney fees to those in which a judgment ordering the production of a public record is obtained. Also, we believe that to construe R.C. 149.43(C) as permitting an award of attorney fees even when a record has been volunteered would discourage record production once a mandamus action has been commenced. Such a result is clearly at odds with the policy behind the Public Records Act. Because 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, the Blade’s motion is denied. Motion denied and complaint dismissed. Moyer, C.J., Sweeney, Holmes, Wright and H. Brown, JJ., concur. Douglas and Resnick, JJ., separately dissent.