From Court News Ohio The Ohio Supreme Court today ordered the city of South Euclid to provide Emilie DiFranco with any public records not yet given to her since she first asked for them in September 2013. In addition, the Court awarded DiFranco statutory damages of $600 plus costs because the city took an unreasonable amount of time to produce many of the records.
The Court also ruled in a separate case in which DiFranco alleged the city had acted frivolously in responding to another public-records request. The Court rejected that claim.
September 2013 Records Request In her public-records request two years ago, DiFranco asked for several items – financial records related to various city-owned properties, “Certificate of Records Disposal forms,” accounts of legal expenses for 2004 through 2013, and overtime records during eight months in 2013. She made the request by certified mail on Sept. 4, 2013, and the city received it the next day.
On Oct. 24 and Nov. 1, the city sent some of the disposal forms and property financial records, but nothing related to legal spending or overtime payments. DiFranco filed suit on May 21, 2014, asking the Supreme Court to order South Euclid to produce the remaining records. The city sent additional documents related to her request on May 30, but DiFranco contended she still had not received 2004 and 2005 disposal forms or records about the cost of snow removal for nine city properties.
Court Orders Release of Records, Awards Damages In today’s 6-1 per curiam decision, the Court issued a writ of mandamus ordering South Euclid to provide the remaining records, if they exist, to DiFranco.
In addition, the Court noted it can award court costs, attorney fees, and statutory damages up to $1,000 if a public-records request was made by certified mail and the public office did not comply with the state’s public records law. One of the statute’s requirements is that public records must be delivered “within a reasonable period of time after the request.”
The opinion pointed out that this is the third time South Euclid has been unresponsive to DiFranco’s public-records inquiries until after she sued. In one case, the city did not respond for two months, and, in another, her request was not addressed for almost six months.
In this case, “two entire categories of DiFranco’s requested documents were not produced for eight months, until DiFranco filed a lawsuit,” the Court stated. “After seven years of fielding her requests, the officials of South Euclid should know to be diligent and responsive to DiFranco’s public-records requests, as they should be with all such requests.”
South Euclid had argued that DiFranco’s true motive in asking for the records was to obtain the damages award, not the documents. The Court concluded the assertion has no merit.
The Court first noted that DiFranco stopped following up with the city’s law director, Michael Lograsso, about incomplete or slow responses to her requests because he told her in a March 2011 email he was ceasing communication with her. Therefore, DiFranco “acted reasonably in no longer communicating with the city about her public-records requests,” the opinion stated.
In addition, the Court pointed out, she has only filed complaints against the city in recent years. DiFranco had explained to the Court that she did not have the opportunity to comment fully about a proposed tax levy because she had not received requested records.
These factors contradict the city’s claim that DiFranco was solely seeking the money, the Court reasoned, concluding that DiFranco is entitled to statutory damages.
Noting the six business days between the filing of her complaint and the next release of records, the Court stated, “If, as South Euclid asserts, they have produced all existing documents as of May 30, 2014, DiFranco is entitled to $600. We therefore grant statutory damages in the amount of $600 and costs to DiFranco.”
Votes in 2013 Records Request Case The majority opinion was joined by Chief Justice Maureen O’Connor and Justices Terrence O’Donnell, Judith Ann Lanzinger, Sharon L. Kennedy, Judith L. French, and William M. O’Neill.
Justice Paul E. Pfeifer dissented and would have dismissed the petition.
Court Rejects Frivolous Conduct Allegation In another case, DiFranco filed a different public-records lawsuit against South Euclid. While the suit was in the courts, the city gave DiFranco the records. After the Ohio Supreme Court determined DiFranco should receive damages but not attorney fees, DiFranco asked the Eighth District Court of Appeals to sanction the city and its community services director for frivolous conduct. The appellate court denied her request.
In a unanimous ruling, the Supreme Court today determined first that DiFranco’s motion was not filed within the required timeframe. The final judgment on the merits of this case was issued in September 2012, but the motion was made nearly two years later. Second, the Court concluded the city did not engage in frivolous conduct because South Euclid’s finance director and DiFranco’s accountant worked together to figure out what documents had not been provided, and the city then produced them.
The decision affirmed the Eighth District’s judgment in the case.