State ex rel. DiFranco v. S. Euclid

[Cite as State ex rel. DiFranco v. S. Euclid, 2012-Ohio-5158.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 97823
STATE EX REL. EMILIE DIFRANCO
RELATOR
vs.
CITY OF SOUTH EUCLID, OHIO, ET AL.
RESPONDENTS
JUDGMENT:
WRIT DENIED
Writ of Mandamus
Motion Nos. 453507, 454368 and 454949
Order No. 459142
RELEASE DATE: October 22, 2012
ATTORNEYS FOR RELATOR
Christopher P. Finney
Finney, Stagnaro, Saba & Patterson
2623 Erie Avenue
Cincinnati, Ohio 45208
Curt C. Hartman
Law Firm of Curt C. Hartman
3749 Fox Point Court
Amelia, Ohio 45102
ATTORNEY FOR RESPONDENTS
Michael P. Longrasso
Law Director
City of South Euclid
1349 South Green Road
South Euclid, Ohio 44121
KENNETH A. ROCCO, J.:
{¶1} On January 11, 2012, the relator, Emilie DiFranco, commenced this public
records mandamus against the respondents, the city of South Euclid and Keith A.
Benjamin, Director of Community Services and Clerk of Council of the city of South
Euclid. DiFranco seeks “copies of all legal spending for the time period: January 2010
thru June 2011 * * * include detailed spread sheets * * * which includes: date of
payments, payee, and amounts paid to outside contractual legal firms, and salaries.” In
addition, DiFranco seeks the award of attorney fees, per R.C. 149.43(C)(2)(b), and the
award of statutory damages as allowable pursuant to R.C. 149.43(C)(1). For the
following reasons, we find that DiFranco’s request for a writ of mandamus is moot and
decline to award DiFranco either attorney fees or statutory damages.
{¶2} DiFranco’s request for a writ of mandamus is moot. DiFranco, in footnote
five, as contained within her motion for partial summary judgment of March 22, 2012,
states that: “Relator is willing to stipulate that all responsive records were received on
Friday, January 13, 2012, at 7:56 PM, the same day the complaint was served * * * . ”
All requested public records have been provided to DiFranco. State ex rel. Striker v.
Smith, 129 Ohio St.3d 168, 2011-Ohio-2878, 950 N.E.2d 952, ¶ 22, quoting State ex rel.
Toledo Blade Co. v. Toledo-Lucas Cty. Port Auth., 121 Ohio St.3d 537, 2009-Ohio-1767,
905 N.E.2d 1221, ¶ 14. Thus, the only remaining issues that this court must address
are DiFranco’s request for statutory damages and attorney fees.
{¶3} DiFranco’s request for statutory damages must be summarily denied. R.C.
149.43(C)(1) provides that “[i]f a requestor transmits a written request by hand delivery
or certified mail to inspect or receive copies of any public records * * * , the requestor
shall be entitled to recover the amount of statutory damages set forth in this division.” In
the case sub judice, DiFranco did not transmit a written request by hand delivery or
certified mail to inspect or receive copies of any public record. DiFranco made her
request for public records through email. Email does not constitute a written request or
certified mail, and thus, DiFranco has failed to comply with the mandatory requirements
of R.C. 149.43(C)(1). State ex rel. Mahajan v. State Med. Bd. of Ohio, 127 Ohio St.3d
497, 2010-Ohio-5995, 940 N.E.2d 1280.
{¶4} Finally, we find that DiFranco is not entitled to attorney fees. DiFranco
argues that she has established the necessary grounds for attorney fees pursuant to R.C.
149.43(C)(2)(b). In support of her claim
for attorney fees, DiFranco states in her complaint for a writ of mandamus that:
The issuance of a writ of mandamus will serve the public
interest and provide a public benefit by, inter
alia, encouraging and promoting compliance in
the future by public officials with the mandates
of the Public Records Act, as well as court
decisions thereon.
Furthermore, the issuance of a writ of mandamus will serve the public
interest and provide a public benefit by, inter alia, exposing the financial
operations of the City of South Euclid to public exposure.
Furthermore, the issuance of a writ of mandamus will serve the public
interest and provide a public benefit by, inter alia, subjecting the
organization, functions, policies, decision, operations, or other activities of
the City of South Euclid to public exposure, review and criticism.
{¶5} The Supreme Court of Ohio has recently established that the award of
attorney fees is dependent upon demonstrating that the release of the requested public
records provides a public benefit that is greater than the benefit that enures to the
requester. State ex rel. Dawson v. Bloom-Carroll Local School Dist., 131 Ohio St.3d 10,
2011-Ohio-6009, 959 N.E.2d 524, ¶ 34; State ex rel. Beacon Journal Publishing Co. v.
Akron, 104 Ohio St.3d 399, 2004-Ohio-6557, 819 N.E.2d 1087; compare 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, ¶ 69 (failure to establish right to statutory
damages and attorney fees throughout the case resulted in waiver).
{¶6} This court, in State ex rel. Petranek v. Cleveland, 8th Dist. No. 98026,
2012-Ohio-2396, held that encouraging and promoting compliance with the Ohio Public
Records Act and on subjecting the public records keeper to public exposure, review, and
criticism does not establish sufficient public benefit to allow for the award of attorney
fees.
In her complaint, [relator] states that her public records request would serve
the public benefit by encouraging and promoting compliance with the Ohio
Public Records Act and by subjecting the [respondent] to public exposure,
review, and criticism. [Footnote omitted.] This does not state a sufficient
public benefit to support an award of attorney fees or statutory damages,
because any and all public records requests would provide these minimal
benefits. (Emphasis added.) Id. at ¶ 8. See also State ex rel. DiFranco v.
South Euclid, 8th Dist. No. 97713, 2012-Ohio-4399.
{¶7} As in Petranek, we find that DiFranco has failed to establish any viable public
benefit that would permit this court to an award of attorney
fees. The benefit claimed by DiFranco is simply an argument that the Ohio Public
Records Act be enforced against the respondents. Thus, we find that DiFranco is not
entitled to an award of attorney fees.
{¶8} Accordingly, we grant the respondents’ joint motions for summary
judgment and deny DiFranco’s partial motion for summary judgment. Respondents to pay
costs. This court directs the Clerk of the Eighth District Court of Appeals to serve upon
the parties notice of this judgment and its date of entry upon the journal. Civ.R. 58(B).
{¶9} Writ denied.
____________________________________
KENNETH A. ROCCO, JUDGE
COLLEEN CONWAY COONEY, J., CONCURS;
MELODY J. STEWART, P.J., CONCURS IN JUDGMENT ONLY