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State ex rel Cincinnati Enquirer v. Allen9/16/2005
DECISION.
Judgment Appealed From Is: Affirmed
{ } The Cincinnati Enquirer ("the Enquirer") appeals the trial court's judgment that denied its request for attorney fees and forfeiture in a case in which the Enquirer had sought access to public records. We conclude that its sole assignment of error is without merit and therefore affirm the judgment of the trial court.
{ } On August 24, 2004, Sharon Coolidge, a reporter for the Enquirer, sent a written request to the Hamilton County Prosecutor's office seeking records related to a potential sexual-harassment lawsuit against then county prosecutor, Michael Allen. Included among the documents requested were two letters that are the subject of this appeal. The first letter, dated August 12, 2004, was addressed to Allen from Michael Moses, who was representing the alleged victim in the case, Rebecca Collins ("the Moses letter"). The letter offered to settle any claims that Collins might have had against Allen and included a copy of a draft sexual-harassment complaint. The second letter, also dated August 12, 2004, was addressed to Carl Stich, First Assistant Prosecuting Attorney, and set forth specific allegations of harassment that had occurred ("the internal complaint"). On August 26, Coolidge sent a second request for the documents.
{ } According to Stich, Collins had delivered both letters to him on August 12, 2004. He forwarded the Moses letter to Allen, who, in turn, sent the letter to his private attorney, Michael Hawkins. Stich kept the internal complaint. Later on August 12, Stich was told that Moses had indicated that Collins wanted to withdraw the internal complaint while discussions about a resolution continued with Allen. Stich made no copies of the letter, and Collins later retrieved the letter from him.
{ } On August 27, the Enquirer filed a complaint seeking a writ of mandamus to order Allen to make the requested documents available, pursuant to R.C. 149.43 and 149.351. The complaint also sought forfeiture and attorney fees. On the same day, the trial court granted a temporary restraining order to prevent the destruction of any of the requested documents. The matter was scheduled for a hearing on September 1, 2004.
{ } At the hearing, Hawkins stated that he had not provided a copy of the Moses letter to the Enquirer because it had been marked "CONFIDENTIAL, INADMISSIBLE PRIVILEGED CORRESPONDENCE PURSUANT TO FEDERAL AND OHIO EVIDENCE RULE 408," and because Moses had told him that he wanted the letter to remain confidential. But Hawkins was willing to have the trial court review the letter to determine whether the letter was a public record as defined by R.C. 149.43. At the end of the hearing, the trial court concluded that the Moses letter was a public record and ordered that a copy of it be made available to the Enquirer. Hawkins complied with the order immediately.
{ } Regarding the internal complaint, counsel for the Enquirer stated at the hearing that the Enquirer had received a copy of the document from another source. Accordingly, the trial court did not address the internal complaint in its order following the September 1 hearing. The issues of forfeiture and attorney fees were held in abeyance.
{ } The trial court held a hearing on forfeiture and attorney fees on November 15, 2004. After the hearing, the trial court concluded that Allen had acted reasonably in responding to the Enquirer's requests for the letters and that the Enquirer was not entitled to forfeiture or attorney fees.
{ } In its sole assignment of error, the Enquirer now asserts that the trial court abused its discretion in not awarding attorney fees and forfeitur
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