The Ohio Supreme Court got it right last week when it ruled that a Cleveland woman was entitled to damages in her lengthy fight to obtain public records.
The woman, after all, had to hire an attorney, and an accountant, and still had to wait eight months to get the public documents she had requested.
The high court dropped the ball, however, when it found Emilie DiFranco was not entitled to attorney fees.
That part of the ruling is troubling since it suggests that a public office can deny or delay a public records request indefinitely with little risk of being held financially responsible.
It also sends an improper message that fighting for a public record can come with a high price tag, especially if one must go to court.
Dennis Hetzel, executive director of the Ohio Newspaper Association, called the attorney fee decision egregious and a major setback to the cause of open government in Ohio.
We agree. Public records belong to everyone, and they must be provided “at cost” to those who request them within a reasonable amount of time. Adding legal fees to the price will only discourage public scrutiny of government and make it less transparent.
The decisions came in two related cases involving DiFranco, who had requested public records from the City of South Euclid in October 2011.
She got a partial response, but not until two months later, and only after she had filed a lawsuit. It took until June 2012 before her request was completed.
While the city blamed delays and missing records on an internal mail-processing problem, an accountant DiFranco hired determined the city actually had the records it at first denied existed.
The Supreme Court found the delay unreasonable and that DiFranco may be entitled to $1,000, the maximum, in damages.
However, in a 6-1 ruling, it concluded that a statutory change in 2007 meant that attorney fees could not be awarded because the city provided the documents before a court order forced it to do so.
In dissent, Justice Sharon Kennedy said the majority opinion distorted the meaning of the Ohio public records law, which describes situations in which a court must award fees and others in which the awarding of fees is optional.
Certainly, attorney fees should be denied in frivolous cases, in matters where requests involve records not subject to release, or if there is a legitimate reason for the delay in releasing records.
But in matters where it’s clear a public office not only delayed releasing documents, but knowingly withheld them, it should be required to pay the requester’s cost of bringing a lawsuit.
Hetzel is hopeful the high court will reconsider the legal fee portion of the ruling.
If not, lawmakers should work to make the law regarding such fees in public record cases even clearer than it already is.
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