In December, the Supreme Court of Ohio ordered the City of South Euclid ("South Euclid") to produce all public records responsive to Emilie DiFranco's two-year-old public records request, officially marking DiFranco's third victory in public records disputes against the suburban Cleveland city. In its 6-1 per curiam decision, the Court also awarded DiFranco statutory damages of $600, plus costs due to South Euclid's unreasonable delay in producing such records. The opinion can be found here. In a separate, related decision released the same day, however, the Supreme Court denied DiFranco's motion for sanctions, finding that South Euclid's actions did not rise to the level of "frivolous." The second opinion can be found here.
1. Defending a Mandamus Action by Alleging Improper Intent is not as Easy as it Seems
One could say that South Euclid and DiFranco "go way back." Indeed, South Euclid has been fielding public records requests from DiFranco for nearly seven years. The request at issue occurred on September 4, 2013, in which DiFranco sought copies of several different types of financial records, as well as Certificate of Records Disposal forms. The request was sent by certified mail and was received by South Euclid the next day.
On October 24, 2013, South Euclid sent some, but not all, of the requested records to DiFranco. South Euclid acknowledged its piecemeal response, stating that the other requested records would follow in a separate e-mail. On November 1, 2013, South Euclid sent another production to DiFranco, but again, not all of the requested records were sent. Those remaining records never came, and on May 21, 2014, DiFranco sought judicial intervention and asked the Supreme Court to order South Euclid to produce the remaining records. In response, South Euclid sent more responsive records that had not been provided before, but DiFranco contended that she still had not received all of the public records responsive to her request.
In the Supreme Court's December 2, 2015 decision, it issued a writ of mandamus ordering South Euclid to provide the remaining records, if they exist, to DiFranco. It also awarded DiFranco $600 in statutory damages, finding that South Euclid failed to timely provide copies of the requested records. Motivating the Court's decision was the fact that "[i]n this case, as in previous cases, South Euclid delayed producing some records requested by DiFranco until she filed a lawsuit." Indeed, this was nearly eight months after her initial request.
South Euclid asserted that DiFranco's intent in filing the lawsuit was to obtain statutory damages rather than the documents themselves. Pursuant to former Supreme Court precedent, evidence of such intent would require a finding that DiFranco was not "aggrieved" by South Euclid's failure to provide the requested records in a timely fashion; therefore, the rationale for awarding statutory damages is negated. South Euclid supported this argument with evidence that DiFranco never attempted to contact city officials about her outstanding requests prior to filing her mandamus action.
The Supreme Court found that South Euclid's allegations were without merit for three reasons: First, DiFranco pointed out that she ceased contacting South Euclid regarding her unfulfilled requests when Michael Lograsso, South Euclid's law director, explicitly refused to discuss them with her on a previous occasion. Second, DiFranco asserted 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. Third, the Court noted that DiFranco has been making public records requests for seven years, and only recently began suing in mandamus. All of these factors, the Court found, undermined South Euclid's contention that DiFranco's motive was to get statutory damages.
Finally, the Court reminded South Euclid of its legal obligation to be diligent and timely in responding to all public records requests under the Public Records Act. In a separate, related opinion issued the same day, however, the Supreme Court of Ohio clarified that though South Euclid acted unreasonable with respect to DiFranco's public records requests, the city did not act frivolous or egregious such that sanctions were warranted.
2. Unreasonable? Yes. Frivolous? Not so fast.
The Supreme Court's second decision arose out of a different, yet similar, public records dispute between DiFranco and South Euclid. When South Euclid failed to produce all the requested records (again), DiFranco filed a mandamus action (again); this time, in the Court of Appeals for the Eighth District of Ohio. During litigation, South Euclid ultimately produced all of the responsive records, and DiFranco was awarded statutory damages. This series of events, however, took an unexpected turn: after being awarded statutory damages, DiFranco filed a motion for sanctions against South Euclid, its director of community services, and the city's attorney. DiFranco accused them of acting frivolously by falsely stating that they had produced all responsive documents. The Eighth District denied the motion, and DiFranco appealed to the Supreme Court of Ohio.
The Supreme Court disposed of DiFranco's appeal primarily for being untimely, but also affirmed the Eighth District's finding on the merits that South Euclid and its counsel did not engage in frivolous conduct. The Court noted that frivolous conduct sufficient to warrant sanctions must involve egregious conduct. In concluding that the South Euclid did not engage in such conduct in defending the mandamus action, the Court highlighted the fact that South Euclid's finance director and DiFranco's accountant worked together to figure out what documents had not been produced, and South Euclid subsequently produced them.
Though not an all-out victory, the DiFranco cases reaffirm Ohio's long-standing policy favoring liberal access to public records. Records custodians should take note of DiFranco – conclusory assertions that the requester's true intent is to obtain statutory damages will not excuse an incomplete or untimely response to a public records request absent significant evidence in support. Additionally, cooperation in public records disputes can go a long way – including avoiding the imposition of sanctions.
