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State ex rel Ohio Patrolmen's Benevolent Association v. City of Mentor8/16/2000
s pursuant to R.C. 149.43, (2) the custodian of the public records fails to comply with the person's request, (3) the requesting person files a mandamus action pursuant to R.C. 149.43 to obtain copies of the records, and (4) the person receives the requested public records only after the mandamus action is filed, thereby rendering the claim for a writ of mandamus moot." Relators met the second, third, and fourth Pennington requirements for the hazing investigative and payroll records.
For the remaining Pennington requirement of a proper request for public records, the hazing investigative records, like the Spetrino investigative records, were not exempt under the RC. 149.43(A)(2)(c) work-product or (2)(d) witness-endangerment exemptions. They were, however, exempt for the same reasons as the Spetrino records, to the extent that the uncharged-suspect exemption of R.C. 149.43(A)(2)(a) applied. Neither the prosecutor's decision not to file criminal charges against any officer based on the hazing investigation nor the passage of time with no enforcement action diminished the viability of this exemption. Polovischak at syllabus; State ex rel. Thompson Newspapers, Inc. v. Martin (1989), 47 Ohio St.3d 28, 546 N.E.2d 939, paragraph two of the syllabus. But only those portions of the hazing investigative records identifying the suspects were exempt, so respondents should have provided access to relators to the remainder of these records.
Therefore, relators may be entitled to attorney fees, but only insofar as their public records claims had merit, i.e., for those portions of the investigative records that do not disclose the identities of uncharged suspects or are otherwise nonexempt records and the few payroll records that had been inadvertently excluded by respondents among the records that they provided to relators before this mandamus action. In other words, " `the party against whom an award of fees [in an R.C. 149.43 public records action] is assessed should be responsible for those fees incurred only as a direct result of that party's failure to produce the public record.' " State ex rel. Lucas Cty. Bd. of Commrs. v. Ohio Environmental Protection Agency (2000), 88 Ohio St.3d 166, 175, 724 N.E.2d 411, 420, quoting Gannett Satellite, 81 Ohio St.3d at 1235, 690 N.E.2d at 12.
We hold that, under the circumstances of this case, relators are entitled to an award of attorney fees, but only insofar as their public records claims had merit. Therefore, we order relators to submit a new bill and documentation limited to the attorney fees expended on their meritorious public records claims.
Based on the foregoing, we grant the writ of mandamus compelling respondents to provide access to Spetrino investigative records, excepting those parts that contain identifying information regarding uncharged suspects, to which the writ is denied.
Writ granted in part and denied in part.
Moyer, C.J., Resnick, F.E. Sweeney, Pfeifer, Cook and Lundberg Stratton, JJ., concur.
Douglas, J., concurs in judgment.
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