Newspaper Not Entitled to Attorney Fees In School District Public Records Case

Cincinnati Enquirer v. Ronan, Slip Opinion No. 2010-Ohio-5680.
Hamilton App. No. C-090155. Judgment of the court of appeals affirmed.
Brown, C.J., and Pfeifer, Lundberg Stratton, O'Connor, O'Donnell, Lanzinger, and Cupp, JJ., concur.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-5680.pdf

Nov. 24, 2010) The Supreme Court of Ohio today affirmed a ruling by the 1st District Court of Appeals that denied an award of attorney fees to the Cincinnati Enquirer newspaper for legal costs the Enquirer incurred in pursuing a public records lawsuit against the Cincinnati Public School district.

The newspaper sued the school district in February 2009 after school officials declined to provide the Enquirer with immediate access to the applications and supporting documents submitted by applicants for the district superintendent’s position. In its reply to the paper’s public records request, the district indicated that it had not accessed the post office box to which applicants were directed to send their applications, and did not plan to access those documents until March 16, the day after the deadline for candidates to submit their applications. The district offered to provide copies of the requested documents within 24 hours after accessing them on March 16, however, the Enquirer sought a writ of mandamus compelling immediate disclosure and included in its complaint a request for attorney fees.

The mandamus action remained pending. On March 16, the school district accessed the contents of the post office box and sent copies to the Enquirer the next day. The 1st District thereafter denied the newspaper’s mandamus action as moot, since the requested records had been disclosed. The court of appeals also denied as moot the Enquirer’s demand for attorney fees. The Enquirer appealed the 1st District’s rulings to the Supreme Court. In November 2009 this Court affirmed the denial of the Enquirer’s mandamus action as moot, but held that the 1st District erred by failing to consider the merits of the newspaper’s request for attorney fees and remanded that issue to the court of appeals for further proceedings.

In January 2010, the 1st District denied the request for attorney fees, holding that the school district was not obligated to provide copies of the requested documents until it had used those documents to carry out the district’s duties and responsibilities, and the district had promptly provided the Enquirer with the requested copies of those documents as soon as it had made official use of them. The Enquirer appealed that ruling to the Supreme Court.

In a unanimous per curiam decision announced today, the Court wrote: “We agree with the court of appeals’ decision that the school district properly complied with the record request by disclosing the records after it retrieved the documents from the post office box. R.C. 149.011(G) defines ‘records’ for purposes of the Public Records Act to include ‘any document … received by … any public office of the state or its political subdivisions, which serves to document the organization, functions, policies, decisions, procedures, operations, or other activities of the office.’ … Agencies must use or rely on the document to perform agency business, and integrate it into their files, before it may be deemed an ‘agency record.’”

“... (T)he mere receipt by the school district of resumes and other materials sent by applicants for the superintendent position did not make these documents records for purposes of R.C. 149.43. ... (U)ntil the school district retrieved the documents from its post office box and reviewed them or otherwise used or relied on them, they were not records subject to disclosure under R.C. 149.43 and the Enquirer was not entitled to them. When the school district opened the post office box and used the documents, the documents became records subject to disclosure under R.C. 149.43, and the school district promptly made them available for inspection and copying at that time. ... Although the public has ‘an unquestioned interest in the qualifications of potential applicants for positions of authority in public employment,’ ... that interest does not compel disclosure until the public office retrieves and reviews the applications and other documents. Therefore, the court of appeals did not abuse its discretion in denying the Enquirer’s request for attorney fees, because the Enquirer was not entitled to the requested records until they were retrieved and used by the school district in their job-selection process. Accordingly, we affirm the judgment of the court of appeals.”