State ex rel. Summers v. Fox (Slip Opinion) ( 2021 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Summers v. Fox, Slip Opinion No. 2021-Ohio-2061.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
SLIP OPINION NO. 2021-OHIO-2061[THE STATE EX REL.] SUMMERS v. FOX, PROS. ATTY., ET AL.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State ex rel. Summers v. Fox, Slip Opinion No.
2021-Ohio-2061.]
Mandamus—Public-records law—Motion for stay moot—Prevailing party not
entitled to attorney fees in a case in which the opposing party presented a
rational position on an unsettled legal issue—No presumption of bad faith
when party makes records available after mandamus case is filed but prior
to an order of the court to do so—Failure to deliver public-records request
by an authorized method obviates an award of statutory damages—Court
costs granted—Attorney fees and statutory damages denied.
(No. 2018-0959—Submitted April 27, 2021—Decided June 22, 2021.)
IN MANDAMUS.
________________
Per Curiam.
SUPREME COURT OF OHIO
{¶ 1} On December 10, 2020, we granted a writ of mandamus (in part)
ordering respondents, Mercer County Prosecuting Attorney Matthew Fox and
Mercer County Sheriff Jeff Grey (“the county”), to produce documents to relator,
Charles A. Summers, in response to his public-records requests. ___ Ohio St.3d
___, 2020-Ohio-5585, ___ N.E.3d ___. This matter is now before the court on
Summers’s application for court costs, attorney fees, and statutory damages. For
the reasons set forth below, we grant the request for an award of court costs and
deny the request for attorney fees and statutory damages.
I. Background
{¶ 2} Charles is the father of Christopher Summers, who is currently
serving a 20-year prison sentence after pleading guilty to multiple counts of sexual
battery. Christopher’s conviction arose out of his conduct toward J.K., a student at
the high school where he was a teacher and coach.
{¶ 3} In February 2017, Charles sent a public-records request to Prosecutor
Fox for records relating to Christopher’s criminal case. In March 2017, he sent a
nearly-identical request to Sheriff Grey. Both offices denied the requests for a
number of reasons.
{¶ 4} The chief argument that the county presented for not producing the
requested records involved R.C. 149.43(B)(8), which provides that when a
convicted, incarcerated person seeks to obtain public records concerning a criminal
investigation, that inmate must first submit the request to his sentencing judge.
Unless the judge finds that “the information sought in the public record is necessary
to support what appears to be a justiciable claim of the person” making the request,
the public office is not required to produce the records to the inmate. Id. In State
ex rel. Barb v. Cuyahoga Cty. Jury Commr., 128 Ohio St.3d 528, 2011-Ohio-1914,
947 N.E.2d 670, we held that an inmate cannot circumvent the requirements of R.C.
149.43(B)(8) by designating a third party who is not an inmate to request the
records on his behalf. In Barb, an inmate’s brother made a public-records request
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on behalf of his incarcerated sibling, and we held that the requester, though not
incarcerated, was equally subject to the statute. Based on our holding in Barb, the
county asserted that Charles, as Christopher’s designee, had to obtain the
sentencing judge’s approval under R.C. 149.43(B)(8) before he could receive the
requested records.
{¶ 5} On May 4, 2017, Charles’s attorney sent a follow-up letter to the
county, asserting that Charles was not Christopher’s designee and, therefore, Barb
was inapplicable. When that letter was unsuccessful in compelling the production
of the public records from the county, Charles commenced this mandamus action.
{¶ 6} Court-ordered mediation resulted in Charles receiving some of the
documents that he had requested. But as the case proceeded, the county adopted a
new argument: it asserted that sexual-assault victims have a fundamental right to
privacy, protected by the Fourteenth Amendment to the United States Constitution
and Article I, Section 10a of the Ohio Constitution (“Marsy’s Law”), and that
releasing the records would infringe on J.K.’s privacy rights. We permitted J.K. to
intervene as a respondent in order to assert her own alleged privacy rights. See 156
Ohio St.3d 1480, 2019-Ohio-3170, 128 N.E.3d 247.
{¶ 7} Following oral argument, we granted the writ of mandamus in part
and denied it in part. ___ Ohio St.3d ___, 2020-Ohio-5585, ___ N.E.3d ___. We
rejected the county’s argument that Charles was not entitled to the requested public
records based on our holding in Barb because the county failed to prove that
Charles was acting as Christopher’s designee. We declined to adopt a per se rule
that family members of inmates are presumptive designees of their incarcerated
relatives. We also rejected the notion of a federal privacy interest that would trump
Ohio’s Public Records Act, R.C. 149.43. We ordered the county to produce some,
but not all, of the recordings and documents that Charles had requested. On
December 30, 2020, we denied the joint motion for reconsideration filed by the
county and J.K. 160 Ohio St.3d 1517, 2020-Ohio-6946, 159 N.E.3d 1181.
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{¶ 8} On December 24, 2020, Charles filed a petition for an award of court
costs, statutory damages, and attorney fees, which the county has opposed.
{¶ 9} On January 12, 2021, the county filed a certification of partial
compliance with this court’s judgment, stating that it had not yet produced
“[r]ecords that could potentially implicate J.K.’s fundamental informational
privacy rights.” On the same day, the county and J.K. filed a joint motion to stay
the portion of this court’s judgment concerning J.K.’s interviews and statements in
order to allow the parties time to appeal that provision of the judgment to the United
States Supreme Court. On June 7, 2021, the United States Supreme Court denied
the county and J.K.’s petition for a writ of certiorari, Fox v. Summers, ___ U.S. ___,
___ S.Ct. ___, ___ L.Ed. ___, 2021 WL 2302101 (2021), rendering the joint motion
for a stay moot. Also on June 7, the county certified full compliance with this
court’s December 10, 2020 judgment.
II. The petition for court costs, attorney fees, and statutory damages
A. Court costs
{¶ 10} An award of court costs is mandatory in a public-records case when
the court grants a writ of mandamus compelling a public office to comply with its
duties under the Public Records Act. R.C. 149.43(C)(3)(a)(i); State ex rel.
Hedenberg v. N. Cent. Corr. Complex, 162 Ohio St.3d 85, 2020-Ohio-3815, 164
N.E.3d 358, ¶ 13. The county does not oppose Charles’s request for court costs.
{¶ 11} We grant the petition for an award of court costs.
B. Attorney fees
{¶ 12} Charles has requested an award of attorney fees in the amount of
$66,542.50. The Public Records Act “outlines four triggering events that grant a
court discretion to order reasonable attorney fees in a public-records case.” State
ex rel. Rogers v. Dept. of Rehab. & Corr., 155 Ohio St.3d 545, 2018-Ohio-5111,
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January Term, 2021
122 N.E.3d 1208, ¶ 32.1 Although not clearly spelled out in the petition, Charles
appears to rely on two of the four triggering events in support of his request for an
award of attorney fees.
1. Attorney fees to the prevailing party in a public-records action
{¶ 13} If a court renders a judgment that orders a public official to comply
with the Public Records Act, the court may award reasonable attorney fees to the
relator. R.C. 149.43(C)(3)(b). An award of attorney fees under this section is
discretionary. See State ex rel. Doe v. Smith, 123 Ohio St.3d 44, 2009-Ohio-4149,
914 N.E.2d 159, ¶ 23, 30.
{¶ 14} A court shall not award attorney fees if the following two conditions
are met: (1) based on the law as it existed at the time, a well-informed person
responsible for the requested public records would have reasonably believed that
the conduct of the public office did not constitute a failure to comply with an
obligation of R.C. 149.43(B), and (2) a well-informed person responsible for the
requested public records would have reasonably believed that the conduct of the
public office would serve the public policy that underlies the authority that it
asserted as permitting that conduct. R.C. 149.43(C)(3)(c); Rogers at ¶ 34. A
prevailing party’s attorney-fees request in a public-records mandamus action “will
be denied where the case presents a matter of first impression because courts should
not engage in the practice of punishing a party to a lawsuit for taking a rational
position on a justiciable, unsettled legal issue.” State ex rel. Cincinnati Enquirer v.
Daniels, 108 Ohio St.3d 518, 2006-Ohio-1215, 844 N.E.2d 1181, ¶ 35.
{¶ 15} The county rejected Charles’s public-records request based on his
familial relationship to Christopher and our holding in Barb that an inmate’s
“designee” must comply with R.C. 149.43(B)(8). Barb did not define who
constitutes a designee. See ___ Ohio St.3d ___, 2020-Ohio-5585, ___ N.E.3d ___,
1. The current version of R.C. 149.43(C)(3)(b) is identical in all relevant respects to the version that
was in effect when Charles sent his requests.
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at ¶ 97 (French, J., dissenting) (“The single-paragraph opinion in Barb * * * affords
no indication of the contours of that court-created rule. Nor has this court
subsequently provided any additional insight”). The opinion in Barb could have
been reasonably read, as the county did, to say that a family member is a designee
when the family member serves a public-records request with the intent to prove
the inmate-relative’s innocence. When Charles made his request, there was only
one appellate-court decision addressing when a person constitutes a designee under
Barb, and that case adopted an irrebuttable presumption that a close family member
of an inmate is a per se designee. See State ex rel. Hopgood v. Cuyahoga Cty.
Prosecutor’s Office, 8th Dist. Cuyahoga No. 107098, 2018-Ohio-4121, ¶ 7 (holding
that wife was in privity with inmate husband and therefore presumptively acting as
his designee). Based on these facts, a reasonable public official with the county
could have concluded that Charles was not entitled to the records that he had
requested and that refusing the request would promote the public policy of
restricting inmate requests as embodied in R.C. 149.43(B)(8). Accordingly,
Charles’s status as the prevailing party in his mandamus action does not entitle him
to an award of attorney fees.
2. Bad-faith attorney fees
{¶ 16} Alternatively, attorney fees may be awarded in a public-records case
if the public office “acted in bad faith when [it] voluntarily made the public records
available to the relator for the first time after the relator commenced the mandamus
action, but before the court issued any order concluding whether or not the public
office * * * was required to comply with division (B)” of the Public Records Act.
R.C. 149.43(C)(3)(b)(iii). As previously noted, after rejecting Charles’s request in
full, the county agreed to provide some records during mediation. Charles contends
that this proves the county’s reliance on Barb was in bad faith: if the county truly
believed Charles was not entitled to any records, the county would not have made
a partial production.
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January Term, 2021
{¶ 17} The plain language of the Public Records Act refutes this argument.
The statute expressly states that there is no presumption of bad faith based solely
on the fact that the public office makes a record available after the mandamus case
is filed but before being ordered by the court to do so. R.C. 149.43(C)(3)(b)(iii).
Therefore, to prove bad faith, the party seeking attorney fees must produce some
evidence of bad faith other than the fact that the record was produced. See State ex
rel. McDougald v. Greene, 161 Ohio St.3d 130, 2020-Ohio-3686, 161 N.E.3d 575,
¶ 25.
{¶ 18} “ ‘The term “bad faith” generally implies something more than bad
judgment or negligence.’ ” Id. at ¶ 26, quoting State v. Tate, 5th Dist. Fairfield No.
07 CA 55, 2008-Ohio-3759, ¶ 13. It “ ‘imports a dishonest purpose, moral
obliquity, conscious wrongdoing, breach of a known duty through some ulterior
motive or ill will partaking of the nature of fraud. It also embraces actual intent to
mislead or deceive another.’ ” Id., quoting Slater v. Motorists Mut. Ins. Co., 174
Ohio St. 148, 187 N.E.2d 45 (1962), paragraph two of the syllabus, rev’d on other
grounds, Zoppo v. Homestead Ins. Co., 71 Ohio St.3d 552, 664 N.E.2d 397 (1994),
paragraph one of the syllabus. As discussed above, the county’s reliance on Barb
as a basis for rejecting the public-records requests was reasonable. Charles has not
identified any conduct by the county that rises to the level of bad faith.2
{¶ 19} We hold that Charles is not entitled to an award of bad-faith attorney
fees.
C. Statutory damages
{¶ 20} A person requesting public records shall be entitled to an award of
statutory damages “if a court determines that the public office or the person
2. Charles also complained that the county still had not released some of the records that the county
was ordered to produce at the time of filing his application for attorney fees. The reason for this is
that the county had filed a motion for a stay of this court’s judgment pending the United States
Supreme Court’s ruling on its joint petition with J.K. for a writ of certiorari. The county’s failure
to produce records pending this procedural process was not indicative of bad faith.
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responsible for the public records failed to comply with an obligation in accordance
with division (B) of this section.” R.C. 149.43(C)(2). The amount of statutory
damages is fixed at $100 per business day during which the official failed to comply
with an obligation under R.C. 149.43(B), up to a maximum of $1,000. Id.{¶ 21} Not everyone who submits a public-records request qualifies for
statutory damages, even if a writ of mandamus does issue. R.C. 149.43(C)(2)
designates the methods by which a public-records request must be transmitted in
order for a requester to qualify for an award of statutory damages. In February and
March 2017, when Charles sent his requests to the county, a requester qualified for
statutory damages only if he or she “transmit[ted] a written request by hand delivery
or certified mail * * * to the public office or person responsible for the requested
public records,” former R.C. 149.43(C)(2), 2016 Sub.H.B. No. 471.3
{¶ 22} A requester who fails to prove that delivery was accomplished by
one of the authorized methods is ineligible for statutory damages (although the
public-records request itself is valid). See, e.g., State ex rel. Penland v. Ohio Dept.
of Rehab. & Corr., 158 Ohio St.3d 15, 2019-Ohio-4130, 139 N.E.3d 862, ¶ 16
(denying request for statutory damages under former R.C. 149.43(C)(2), 2018
Am.Sub.H.B. No. 8, because “no evidence suggests that [the requester] delivered
his request * * * by hand or certified mail”). A requester seeking statutory damages
must prove the method of delivery by clear and convincing evidence. See State ex
rel. Martin v. Greene, 156 Ohio St.3d 482, 2019-Ohio-1827, 129 N.E.3d 419, ¶ 9.
{¶ 23} There is no evidence in the record to suggest that Charles sent either
of his public-records requests by hand delivery or certified mail, nor does Charles
contend that he did. Instead, he relies on the subsequent letter, dated May 4, 2017,
3. 2017 Sub.H.B. No. 312 amended R.C. 149.43(C)(2) to add “electronic submission” as a
qualifying method of service. However, public-records requests are governed by the version of R.C.
149.43 that was in effect at the time of the request. See State ex rel. Cordell v. Paden, 156 Ohio
St.3d 394, 2019-Ohio-1216, 128 N.E.3d 179, ¶ 11.
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January Term, 2021
in which his attorney attempted to refute the county’s reliance on Barb. However,
the May 4 letter did not comply with the requirements for an award of statutory
damages.
{¶ 24} The statutory-damages provision in R.C. 149.43(C)(2) that was in
effect at the time of Charles’s public-records requests provides, in part, that a person
is entitled to statutory damages if he transmits, by a qualifying method, “a written
request * * * that fairly describes the public record or class of records.” The May
4 letter did not identify with any specificity the records sought. Instead, it indicated
that Charles had sent a prior letter requesting “certain records.” For this reason, the
May 4 letter is not a qualifying communication under R.C. 149.43(C)(2). Charles
is not therefore entitled to an award of statutory damages.
III. Conclusion
{¶ 25} For the reasons set forth herein, we grant Charles’s application for
court costs. We deny Charles’s request for attorney fees and statutory damages.
Application granted in part
and denied in part.
O’CONNOR, C.J., and KENNEDY, FISCHER, DEWINE, DONNELLY, STEWART,
and BRUNNER, JJ., concur.
_________________
Santen & Hughes, and H. Louis Sirkin, for relator.
Zashin & Rich Co., L.P.A., Drew C. Piersall, and Jonathan J. Downes; and
Matthew K. Fox, Mercer County Prosecuting Attorney, and Amy B. Ikerd,
Assistant Prosecuting Attorney, for respondents.
Ohio Crime Victim Justice Center, and Elizabeth A. Well, for intervening
respondent, J.K.
_________________
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