COLUMBUS — A recent Ohio Supreme Court decision denying attorney fees to a South Euclid woman who waited months for public records from the city is raising red flags among First Amendment advocates.
The 6-1 decision opens the door for public entities to drag their feet in complying with public-records requests until just before a judge’s gavel is about to fall, they said.
The lone dissenter, Republican freshman Justice Sharon Kennedy, said the majority’s opinion defeats the purpose of having the threat of mandatory attorney fees in state law.
“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 mandamus case was filed and then turn over the records before the court had a chance to issue an order,” Justice Kennedy wrote.
Emilie DiFranco sued the Cleveland suburb of South Euclid in two separate cases to force it to comply with requests she had filed for certain public records, some of them related to the financing of a playground. In both cases, months went by without compliance.
The Supreme Court unanimously overturned an 8th District Court of Appeals decision that also denied Ms. DiFranco monetary damages. The high court sent the cases back to the lower court to assess damages in the amount of $100 per day up to a maximum of $1,000, noting it’s possible she is eligible for the maximum.
But six of the justices determined she wasn’t entitled to have her legal fees paid by the city because they interpreted state open-records law to first require a court order to force production of the records.
“There is no such judgment,” the majority wrote.
Dennis Hetzel, executive director of the Ohio Newspaper Association, called the decision “egregious.”