A decision by the Ohio Supreme Court to deny attorney fees to a citizen who waged a long and successful battle to obtain public records will make government less transparent and discourage public scrutiny.
If the high court doesn’t reconsider its decision — and it probably won’t — lawmakers should clarify state open-records law to make collecting such legal fees easier. The law needs to state, even more clearly, that a court order to a government body to release public documents isn’t necessary to award legal fees to the person who seeks them.
The Cleveland suburb of South Euclid denied Emilie DiFranco access to public records, some concerning the financing of a playground, for as long as eight months. She had to hire a lawyer and an accountant to show that the city had records that municipal officials initially said did not exist. Such legal battles can cost tens of thousands of dollars or more — far beyond the means of most citizen.
The Supreme Court found the delay unreasonable and ruled that Ms. DiFranco was entitled, under Ohio law, to recover damages of as much as $1,000. But in a misguided 6-1 ruling, justices skirted the intent of state law by ruling she was not entitled to attorney’s fees, because city officials finally coughed up the records before a court ordered them to do so.
The ruling defies logic: The city clearly produced the records because of a complaint Ms. DiFranco filed in court. As Justice Sharon Kennedy rightly wrote in her dissent: “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.”
Ohio citizens have no binding way, other than going to court, to get public records that officials withhold. Many other states have ombudsman offices, public records councils, or other intermediaries to settle such disputes without costly and protracted legal action.
“If you don’t have a reasonable hope of recovering legal fees, then only the wealthy, or someone who can find an attorney to work free or nearly free, will pursue these cases,” said Dennis Hetzel, the executive director of the Ohio Newspaper Association. “It gives a blank check to local governments that want to delay, delay, delay.”
The Supreme Court’s damaging decision affects far more than media outlets, which have no greater right to government records than the general public does. Such records belong to every citizen. In creating another barrier to challenging government secrecy, the ruling undermines the ability of citizens to find out what public officials are up to.
The Supreme Court got it wrong. It’s up to Ohio lawmakers to make it right.