State ex rel. DiFranco v. S. Euclid (Slip Opinion)

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. DiFranco v. S. Euclid, Slip Opinion No. 2015-Ohio-4914.]
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. 2015-OHIO-4914
THE STATE EX REL. DIFRANCO v. THE CITY OF SOUTH EUCLID ET AL.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State ex rel. DiFranco v. S. Euclid, Slip Opinion No.
2015-Ohio-4914.]
Mandamus—Public records—R.C. 149.43—Statutory damages under R.C.
149.43(C)(1)—Writ affirmed.
(No. 2014-0831—Submitted April 14, 2015—Decided December 2, 2015.)
IN MANDAMUS.
_____________________
Per Curiam.
{¶ 1} Relator, Emilie DiFranco, requested public records from respondents,
the city of South Euclid and its employee, Lee Williams (collectively, “South
Euclid”). She alleges that South Euclid has only partially responded to her requests
and that it did not produce the records that she did receive within a reasonable
period of time. DiFranco seeks a writ of mandamus and statutory damages under
the public-records act (“PRA”), R.C. 149.43.
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{¶ 2} Because South Euclid may not have produced some requested
records, we issue an order to South Euclid to produce these records if they exist. In
addition, because South Euclid took an unreasonable amount of time producing
some of the records that were responsive to her request, we award costs and
statutory damages to DiFranco.
Facts
{¶ 3} On September 4, 2013, DiFranco made a public-records request of
South Euclid. The request was for a long list of financial records associated with
several city-owned properties, Certificate of Records Disposal forms (“RC-03
forms”), records showing legal spending for 2004 through 2013, and records of
overtime payments for eight months of 2013.
{¶ 4} The request was sent by certified mail and was received by the city
the next day. On the day the city received the request, South Euclid acknowledged
its receipt in an e-mail to DiFranco that stated that the request would be forwarded
to the city’s law director for review.
{¶ 5} On October 24, 2013, South Euclid sent some of the requested records
to DiFranco. The city indicated that other requested records would be sent in a
separate e-mail. On November 1, 2013, South Euclid sent more records to
DiFranco, but again, not all of those requested were sent. Specifically, not all the
records associated with the city-owned properties or the RC-03 forms were sent,
and none of the records concerning spending on legal matters or overtime payments
were sent.
{¶ 6} Despite the fact that DiFranco had not received all the requested
records, she did not try to contact South Euclid by e-mail or telephone or in person.
Instead, on May 21, 2014, DiFranco filed this action in mandamus. On May 30,
2014, South Euclid sent an e-mail to DiFranco stating that it was resending the
responsive records. The attachments included some responsive documents that had
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not been provided before, specifically records documenting overtime payments and
showing amounts spent on legal services.
{¶ 7} Just minutes later, South Euclid also sent departmental RC-03 forms.
A third and final e-mail was sent later in the day, containing more records
responsive to the original request for documents related to the city-owned
properties that she had not received in November 2013.
{¶ 8} Williams admitted that “[d]ue to the document volume and the need
to gather same from various City Departments,” she inadvertently failed to send
some of the documents to DiFranco until May 30, 2014.
{¶ 9} On September 24, 2014, this court issued an alternative writ and
ordered the submission of evidence and briefs.
Legal Analysis
{¶ 10} “Mandamus is the appropriate remedy to compel compliance with
R.C. 149.43, Ohio’s Public Records Act.” State ex rel. Physicians Commt. for
Responsible Medicine v. Ohio State Univ. Bd. of Trustees, 108 Ohio St. 3d 288,
2006-Ohio-903, 843 N.E.2d 174, ¶ 6; see R.C. 149.43(C)(1). Unlike in other
mandamus cases, “ ‘[r]elators in public-records mandamus cases need not establish
the lack of an adequate remedy in the ordinary course of law.’ ” State ex rel. Data
Trace Information Servs., L.L.C. v. Cuyahoga Cty. Fiscal Officer, 131 Ohio St. 3d
255, 2012-Ohio-753, 963 N.E.2d 1288, ¶ 25, quoting State ex rel. Am. Civ. Liberties
Union of Ohio, Inc. v. Cuyahoga Cty. Bd. of Commrs., 128 Ohio St. 3d 256, 2011-
Ohio-625, 943 N.E.2d 553, ¶ 24.
Records production
{¶ 11} The first question here concerns what records have yet to be
produced. DiFranco claims in her brief that South Euclid has still not produced all
the requested records; she asserts that she has not received RC-03 forms for 2004
and 2005 and claims that she has not received records regarding the cost of snow
removal for some city properties. The documents DiFranco claim have not yet been
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produced appear to be responsive to her request and do not appear in any of the
submitted evidence.
{¶ 12} South Euclid claims in its brief that it has produced all responsive
records as of May 30, 2014. However, this statement is not backed up by affidavit
or other evidence.
{¶ 13} We therefore issue a writ ordering production by South Euclid of the
RC-03 forms for 2004 and 2005 and records regarding snow removal for nine
Greenvale Drive city-owned properties, if such records exist.
Statutory damages
{¶ 14} DiFranco accuses South Euclid of repeatedly failing to fully respond
to her public-records requests. South Euclid asserts that DiFranco has made
numerous requests for voluminous records, that it has turned over thousands of
pages of documents to her, and that her intent in filing this lawsuit is to obtain
statutory damages rather than the documents themselves.
{¶ 15} In this case, as in previous cases, South Euclid delayed producing
some records requested by DiFranco until she filed a lawsuit. See State ex rel.
DiFranco v. S. Euclid, 138 Ohio St. 3d 378, 2014-Ohio-539, 7 N.E.3d 1146, ¶ 4
(“DiFranco I”), and State ex rel. DiFranco v. S. Euclid, 138 Ohio St. 3d 367, 2014-
Ohio-538, 7 N.E.3d 367, ¶ 6-7 (“DiFranco II”). The determination whether a
public agency or office has complied with the statutory duty to timely provide
copies of the requested records depends upon all of the pertinent facts and
circumstances. State ex rel. Morgan v. Strickland, 121 Ohio St. 3d 600, 2009-Ohio-
1901, 906 N.E.2d 1105, ¶ 10, citing State ex rel. Consumer News Servs., Inc. v.
Worthington City Bd. of Edn., 97 Ohio St. 3d 58, 2002-Ohio-5311, 776 N.E.2d 82,
¶ 37-38.
{¶ 16} Particularly with respect to voluminous requests, we have held that
R.C. 149.43 “envisions an opportunity on the part of the public office to examine
records prior to inspection in order to make appropriate redactions of exempt
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materials.” Morgan at ¶ 16, quoting State ex rel. Warren Newspapers, Inc. v.
Hutson, 70 Ohio St. 3d 619, 623, 640 N.E.2d 174 (1994). Although DiFranco’s
request was large (but not as voluminous as that in Morgan), the delay in producing
a large number of the records was not primarily due to a review for redaction.
Rather, the public-records officer for South Euclid admits that some of the
documents were “inadvertently omitted” from the city’s e-mails until after this case
was filed in May 2014.
{¶ 17} R.C. 149.43(B) requires that public records be made accessible and
available upon request. Division (B)(1) states that “all public records responsive to
the request shall be promptly prepared and made available for inspection to any
person at all reasonable times during regular business hours.” The statute allows
the requesting party to ask that copies to be made and permits the public office to
charge the cost of copying in advance. R.C. 149.43(B)(6). The statute requires that
the public office “transmit a copy of a public record to any person by United States
mail or by any other means of delivery or transmission within a reasonable period
of time after receiving the request for the copy.” R.C. 149.43(B)(7). If the public
office denies the request, the statute requires that an explanation for the denial be
given to the requester. R.C. 149.43(B)(3). In addition, division (B) specifically
requires that the public office “organize and maintain records in a manner that they
can be made available for inspection or copying in accordance with division (B) of
this section.” R.C. 149.43(B)(2).
{¶ 18} Although some records were produced by South Euclid before the
action in mandamus was filed, unlike in DiFranco II, 138 Ohio St. 3d 367, 2014-
Ohio-538, 7 N.E.3d 1136, it was not until DiFranco filed her complaint,
approximately eight months after her initial request, that South Euclid produced
some of the responsive records. Therefore, South Euclid has failed to produce
copies of requested records within a reasonable period of time, as required under
R.C. 149.43(B). Id. at ¶ 21 (failure to respond at all for two months justifies an
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award of statutory damages). State ex rel. Warren Newspapers, Inc. v. Hutson, 70
Ohio St. 3d 619, 624, 640 N.E.2d 174 (1994) (police department taking four months
to respond to a request for “all incident reports and traffic tickets written in 1992”
was neither prompt nor reasonable).
{¶ 19} Under R.C. 149.43(C)(1), if a requester made her request by certified
mail and the court finds that the public office failed to comply with an obligation
under subsection (B) of the statute, the court can award court costs, attorney fees,
and statutory damages up to $1,000.
{¶ 20} South Euclid argues that the court should not grant statutory
damages because DiFranco made her request for reasons other than examination of
the requested records. South Euclid likens DiFranco to the plaintiff in Rhodes v.
New Philadelphia, 129 Ohio St. 3d 304, 2011-Ohio-3279, 951 N.E.2d 782. In that
case, the plaintiff requested reel-to-reel tapes of a police department’s phone calls
and radio dispatches. Years before the request, the system that produced the reel-
to-reel tapes had been replaced. The police department destroyed the tapes, even
though its record-disposition policy allowing for their destruction had not been
properly adopted.
{¶ 21} The plaintiff in Rhodes admitted that he wanted to request records
only if the city did not have an approved record-disposition schedule. Id. at ¶ 6.
This court held that if a public office can establish that the requester did not actually
want the records but wanted the request to be denied, a finder of fact could conclude
that the requester was not aggrieved by the destruction of the records. Id. at ¶ 28.
{¶ 22} South Euclid argues that, as with the relator in Rhodes, DiFranco is
not aggrieved by South Euclid’s failure to provide the requested records in a timely
fashion, because her true motive is not to obtain the records but to seek statutory
damages.
{¶ 23} South Euclid’s arguments are without merit for at least two reasons.
South Euclid itself acknowledges that DiFranco has been making public-records
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requests for seven years and that she has made dozens of such requests. In the past,
South Euclid asserts, if DiFranco felt that the city had not fulfilled the request, she
contacted a city employee to inquire about the matter. The city complains that for
the last few years, she has not made such inquiries but has sued the city in
mandamus instead.
{¶ 24} We have emphasized that R.C. 149.43 contemplates that a requester
and a public office should cooperate when a public-records request is made.
Morgan, 121 Ohio St. 3d 600, 2009-Ohio-1901, 906 N.E.2d 1105, ¶ 18. However,
DiFranco points out that she no longer has contact with South Euclid regarding her
requests because Michael Lograsso, South Euclid’s law director, told her in an e-
mail sent on March 31, 2011, that he no longer would communicate with her.
{¶ 25} DiFranco’s public-records request was sent to Lograsso for review
and processing. A public-records requester has an obligation to cooperate with the
public-records custodian fulfilling a request, including an obligation to inform the
public agency when she feels that a request has been incomplete or slow. Id.
However, after receiving the e-mail from Lograsso stating that he wanted no further
contact, DiFranco acted reasonably in no longer communicating with the city about
her public-records requests.
{¶ 26} In addition, DiFranco has been making requests for seven years but
has only begun suing in mandamus recently. DiFranco also asserts that the failure
to timely obtain some records from the current request prevented her from
commenting fully on a proposed tax levy before the election in which the levy was
on the ballot. All of these factors point away from South Euclid’s contention that
DiFranco’s motive is to get statutory damages. Whatever her motive, it was not a
blatant wish to have her requests denied, as with the plaintiff in Rhodes. See
Rhodes, 129 Ohio St. 3d 304, 2011-Ohio-3279, 951 N.E.2d 782, ¶ 26.
{¶ 27} Second, this is the third case in which South Euclid has been dilatory
in responding to one of DiFranco’s public-records requests. DiFranco II, 138 Ohio
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St. 3d 367, 2014-Ohio-538, 7 N.E.3d 1136, ¶ 7 (no response to request for two
months); DiFranco I, 138 Ohio St. 3d 378, 2014-Ohio-539, 7 N.E.3d 1146, ¶ 4
(request went unfulfilled for nearly six months). Nor is this a case in which only a
handful of responsive documents went astray; instead, two entire categories of
DiFranco’s requested documents were not produced for eight months, until
DiFranco filed a lawsuit. After seven years of fielding her requests, the officials of
South Euclid should know to be diligent and responsive to DiFranco’s public-
records requests, as they should be with all such requests. South Euclid, as with
any other public agency, has an obligation under the PRA to respond to public-
records requests in a timely and complete manner.
{¶ 28} Therefore, DiFranco is entitled to statutory damages. R.C.
149.43(C)(1) provides that a requesting party is entitled to recover damages of $100
“for each business day during which the public office * * * failed to comply with
an obligation in accordance with division (B) of this section, beginning with the
day on which the requester files a mandamus action to recover statutory damages,
up to a maximum of one thousand dollars.”
{¶ 29} DiFranco, having made only one public-records request, may
recover only $100 for each business day. State ex rel. Dehler v. Kelly, 127 Ohio
St.3d 309, 2010-Ohio-5724, 939 N.E.2d 828, ¶ 4 (“R.C. 149.43(C)(1) does not
permit stacking of statutory damages based on what is essentially the same records
request. No windfall is conferred by the statute”).
{¶ 30} An award of statutory damages may be reduced if the court
determines that based on statutory and case law at the time, a well-informed public
office or person responsible for the requested public records reasonably would
believe that their actions would not constitute a failure to comply with the statute
and that a well-informed public office or person reasonably would believe that their
actions would serve the public policy. R.C. 149.43(C)(1)(a) and (b). However,
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these factors are not present here; South Euclid does not argue that they did not
know or believe that the requested documents were public record.
{¶ 31} Therefore, DiFranco is entitled to $100 dollars in damages for each
business day that South Euclid failed to produce the remaining requested records
after she had filed her mandamus complaint. DiFranco filed her complaint on May
21, 2014, and South Euclid produced the additional records on May 30, 2014, six
business days later. If, as South Euclid asserts, they have produced all existing
documents as of May 30, 2014, DiFranco is entitled to $600. We therefore grant
statutory damages in the amount of $600 and costs to DiFranco.
Conclusion
{¶ 32} DiFranco claims that South Euclid has still not produced some of her
requested records, specifically RC-03 forms for 2004 and 2005 and records
regarding snow removal for city properties. We therefore issue a writ of mandamus
ordering that responsive records be produced if they exist and have not yet been
produced.
{¶ 33} In addition, South Euclid took an unreasonable amount of time
producing some records responsive to her request. We therefore award costs and
statutory damages in the amount of $ 600 to DiFranco.
Writ granted.
O’CONNOR, C.J., and O’DONNELL, LANZINGER, KENNEDY, FRENCH, and
O’NEILL, JJ., concur.
PFEIFER, J., dissents and would dismiss the petition.
_________________
Emilie DiFranco, pro se.
Michael P. Lograsso, South Euclid Director of Law; and Nicola,
Gudbranson & Cooper, L.L.C., Vincent A. Feudo, and Michael E. Cicero, for
respondents.
_________________
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