Generally, when a request for public records is submitted, the requested records must be made available for inspection. R.C. 149.43(B)(1). In addition, when the requested records contain information that is exempt from the Public Records Law, the information in the public record that is not exempt must still be made available. Id. Ohio Senate Bill 321 modifies this area of law by providing two options for individuals whose public records requests have been denied, and by simplifying the appeals process.
According to R.C. 149.43(C)(1), once a public records request has been denied, an allegedly aggrieved individual may do one of the following:
- File a complaint with the clerk in the Court of Claims or the Common Pleas Court, as described under “Action in the Court of Claims;” or
- Commence a mandamus action to obtain a judgment, ordering the public office to comply with the Public Records Law, awarding court costs and reasonable attorney fees to the person who instituted the mandamus action and, if applicable, including an order fixing statutory damages.
Pursuant to S.B. 321, the Court of Claims will have exclusive, original jurisdiction to hear complaints relating to the denial of access to public records, and the clerk of the Common Pleas Court will act as the clerk of the Court of Claims for the purposes of accepting such complaints, related filing fees, and perfecting service of the complaints.
Complaint with the Court of Claims:
Under the first option, set forth in R.C. 149.43(C)(1), the allegedly aggrieved individual must file the complaint on a form provided by the Court of Claims. The individual must also attach copies of the original records request, as well as any other written communication or responses, to the complaint, and pay a $25.00 filing fee to the clerk. The clerk of the Court of Claims will then assign a case number to the complaint, as well as a special master to review the claim.
Upon receipt of a complaint, the special master must refer the matter to mediation services, and any further proceedings will be stayed until mediation is concluded. R.C. 2743.75(E)(1). If an agreement is reached during mediation, the court will dismiss the complaint. R.C. 2743.75(E)(2). However, if an agreement cannot be reached during mediation, the public office from which the records were requested must file a response to the complaint within ten days. Id. Within seven days of receiving a response, the special master must submit a Report and Recommendation to the Court of Claims. R.C. 2743.75(F)(1). The parties will then have seven days to object to the Report and Recommendation. R.C. 2743.75(F)(2). Upon the filing of an objection, the other party will have seven days to file a response. Id. The Court of Claims will then issue a final order within seven days, wherein it adopts, modifies, or rejects the special master’s Report and Recommendation. Id. If neither party objects, the Court of Claims will issue a final order, adopting the Report and Recommendation of the special master. Id.
If the Court of Claims determines that the aggrieved party was denied access to public records, in violation of the Public Records Law, and no appeal of the court’s final order is taken, both of the following apply:
- The public office must permit the aggrieved person to inspect or obtain copies of the records that the court requires to be disclosed; and
- The aggrieved person is entitled to recover the $25.00 filing fee, and any other costs associated with the action, from the public office.
R.C. 2743.75(F)(3). Notably, the parties may not appeal a final order that adopts the special master’s Report and Recommendation, unless an objection to that report was filed. R.C. 2743.75(G)(1). If the final order materially modifies the special master’s Report and Recommendation, either party may appeal the final order with respect to the modified issue, alone. Id. Additionally, appellate courts must give these cases precedence over other matters to ensure that these disputes are resolved quickly and efficiently. Id. With respect to attorney fees, an aggrieved party may only recover attorney fees if the court of appeals determines that the public office filed an appeal with the intent to delay compliance with the final order, or to unduly harass the aggrieved person. R.C. 2743.75(G)(2). There is no provision to permit the public office to recover its fees if it prevails on appeal.
If a mandamus action is filed, and the reviewing court orders the public office to comply with the Public Records Law, S.B. 321 requires that court costs be awarded to the relator. R.C. 149.43(C)(3)(a)(i). Additionally, S.B. 321 allows courts to award reasonable attorney fees to the relator if the court orders the public office to comply with the Public Records Law, or one of the following applies:
- The public office failed to respond to the public records request in accordance with the time allowed under the Public Records Law; or
- The public office promised the relator that it would make the records available for inspection within a specific period of time, and failed to do so.
R.C. 149.43(C)(3)(b)(i) and (b)(ii). Moreover, S.B. 321 permits an award of attorney fees when the court determines that the public office acted in bad faith when making the records available for inspection for the first time after the filing of a mandamus action, but before the court issued any order as to whether the public office must comply with the Public Records Law. R.C. 149.43(C)(3)(b)(iii). When attorney fees are awarded, they cannot exceed the amount of reasonable attorney fees incurred before the public record was made available to the relator. R.C. 149.43(C)(4). A court may also reduce the amount of attorney fees awarded if it finds that an alternative means should have been pursued to resolve the issue more effectively than a mandamus action. Id.
S.B. 321 further modifies the current law in this area by prohibiting a court from awarding attorney fees to a relator if the court determines that both of the following apply:
- The public office reasonably believed, based upon the law at the time of the alleged failure to comply with the Public Records Law, that its conduct with respect to the public records request did not constitute a failure to comply with an obligation under the Public Records Law; and
- A well-informed public office would reasonably believe that the conduct in response to the public records request would serve the public policy that underlies the authority asserted as permitting the conduct at issue.
R.C. 149.43(C)(3)(c). Additionally, if the court declines to issue a writ of mandamus, and finds that the mandamus action was frivolous, the court may award court costs, expenses, and reasonable attorney fees to the public office. R.C. 149.43(C)(5).
Additional Modifications by S.B. 321:
S.B. 321 further states that, when a public office provides access to public records on a free public website, it may limit the number of records that it will provide in digital format to requestors to ten per month, unless the requested records are not on the public website.
Additionally, with respect to criminal records, S.B. 321 mandates that when a defendant in an action, the defendant’s attorney, or any agent of the defendant, requests public records relating to that action, the request must be considered a demand for discovery under the Criminal Rules. R.C. 149.43(G). The requestor must serve a copy of the request to the prosecuting attorney in these circumstances, as well. Id.
Overall, the changes set forth in S.B. 321 allow for the expedited resolution of issues pertaining to public records requests. Further, the new options are more cost effective, and allow both parties to avoid long delays, waiting for courts to issue decisions on these disputes. Additionally, the introduction of a mediator at the outset of these claims may facilitate resolution of these matters without commencing litigation. However, the bill seems to effectively ensure that, even in matters where mediation is unsuccessful, the process will be guided by strict deadlines for filings by the parties, as well as decisions by the special masters and courts.