Ohio Governor John Kasich recently signed into law Senate Bill 321 to create a fast track for resolving denied public records requests. The bill received unanimous approval in the Ohio House and Senate. The new law added to the rights and remedies available to an individual who is seeking public records.
As background, Ohio's public records laws generally require that, upon request from an individual, a public office must promptly make available for inspection all public records responsive to the request. See, e.g., Ohio Rev. Code § 149.43(B)(1). A public office generally must also provide copies of the requested public records at cost and within a "reasonable" period of time. If an individual is denied a public records request, then he or she often must fight that denial in the courts -- with the accompanying costs, attorneys' fees, and time.
Politicians are hailing the new law as one that will make the public records request process simpler and more accessible for Ohio citizens. Consider some of these major additions:
Court of Claims Action Now Available (Ohio Rev. Code §§149.43(C)(1), 2743.03(A)(3)(b), and 2743.75)
Arguably the biggest change is the creation of a new docket in the Ohio Court of Claims. The docket will handle complaints alleging that a public office unlawfully denied access to public records. Previously, a party's only legal recourse was filing a mandamus action.[1] The new law establishes an alternative route -- one that will likely be cheaper, faster, and involve court personnel who are more familiar with this type of complaint. An individual can either (1) as previously allowed, commence a mandamus action to obtain a judgment that orders the public office to comply with the law, or (2) file a complaint directly with the Court of Claims.
The cost to file a case with the Court of Claims is only $25, and the individual does not need to hire a lawyer. The complaint must attach copies of the original records request and any communications from the public office relating to the request. Once filed, a special master is assigned to the case, which is promptly referred to mediation services (in most circumstances). If mediation proves unsuccessful, the public office then must file a response to the complaint. No further motions or pleadings are allowed, unless directed by the special master. Discovery is not permitted, but the parties may attach supporting affidavits to their pleadings and the special master may require parties to submit additional information or documents that are supported by the affidavits. The special master then submits a report and recommendation to the Court of Claims. Either party may object to the report and recommendation. The Court of Claims then issues a final order that either adopts, modifies, or rejects the report and recommendation.
The process -- from the conclusion of mediation to the Court of Claims' final order -- should take a maximum of 48 days. See Ohio Rev. Code § 2743.75(E) and (F). In addition, any appeal to the Ohio Court of Appeals[2] from the final order is given precedence by the Court of Appeals over other pending matters to ensure a prompt decision. Establishing that the Court of Claims will issue a final order ensures that the dispute's resolution will have the force of law.
Recovery of costs and attorneys' fees (Ohio Rev. Code §§149.43(C), 2743.75(F) and (G))
The new law further elaborates on when an individual can recover his or her costs and reasonable attorneys' fees in a public records dispute. As before, a court is required to award the individual his or her court costs if the court finds that the public office did not comply with the law. In a mandamus action, statutory damages are also typically awarded and an individual is entitled to recover attorneys' fees in various circumstances. The new law clarifies that the court may compel the individual to pay the public office's court costs, expenses, and reasonable attorney's fees if the mandamus action was frivolous.
In a Court of Claims action, an individual is not typically entitled to recover attorneys' fees. However, the individual can be awarded attorneys' fees if, in an appeal of the Court's final order, the appellate court determines that the public office (1) violated the public records law, and (2) "obviously filed the appeal with the intent to either delay compliance with the court of claims' order from which the appeal is taken for no reasonable cause or unduly harass the aggrieved person." Ohio Rev. Code § 2743.75(G).
Additionally, despite allowing attorneys' fees awards if the public office acted in bad faith (in a mandamus action) or with intent to delay or harass via appeal (in a Court of Claims' action), the new law precludes discovery on the issue. See, e.g., Ohio Rev. Code §§ 149.43(C)(3)(b), 2743.75(G)(2). Presumably the intent of such a provision was to curb costs and delay. However, the rule hampers an individual's ability to collect the type of evidence most likely to show bad faith or intent to delay or harass. Thus, the prospect of an attorneys' fee award will likely be limited to extreme circumstances.
Website records limitation (Ohio Rev. Code § 149.43(B)(7)(c)(ii))
The law also contains a provision that allows public offices that provide free public records on their websites to limit the number of records provided to a requester. Specifically, a public office can limit a requestor to 10 digital-format records each month, unless (1) the records requested are not provided on the website, and (2) the requestor certifies that he or she does not intend to use or forward the records or information for "commercial purposes." "Commercial purposes" is a narrowly-construed term that does not include gathering information for news reporting, among other things.
Quicker justice, but better justice?
Overall, despite the unusual step by the legislature to establish specific court rules and procedure, the new law provides more rights to the public and should make resolution of disputes cheaper and faster. In fact, the legislature expressly stated that the new procedures are "to provide for an expeditious and economical procedure" to resolve public records disputes. That intent is certainly manifest in the various "no discovery" provisions.
However, the speed arguably comes at the expense of some of the truth-seeking aspects of discovery and trial, as well as the limited ability to obtain attorneys' fees in Court of Claims cases. Also, the process may still be too slow in some instances (for example, when a media outlet is wrongfully denied public records for an urgent news story). Yet, the new law is an important step forward and, at least on paper, a noteworthy improvement over the expensive, slow procedure that individuals had been forced to follow.
[1] A mandamus action is a lawsuit against a public office in which an individual asks the court to command the public office to perform its duties (after the public office has refused to do so).
[2] The proper appellate court is the court of appeals of the appellate district of the principal place of business where the public office is located.
