I respectfully dissent. Appellant contends the trial court erred in holding that appellee was entitled to inspection and copies of public records in the form of computer diskettes. InState ex rel. Margolius v. Cleveland (1992), 62 Ohio St. 3d 456,584 N.E.2d 665, the Supreme Court of Ohio held:
"A governmental agency must allow the copying of the portions of computer tapes to which the public is entitled pursuant to R.C. 149.43, if the person requesting the information haspresented a legitimate reason why a paper copy of the recordswould be insufficient or impracticable, and if such person assumes the expenses of copying." (Emphasis added.) Id. at syllabus.
After holding that relator was entitled to copies of the computer tapes at issue, the Margolius court added the followingcaveat at 461, 584 N.E.2d at 669-670:
"We caution those who would interpret our decision as a wholesale opening of the computer files of our public agencies to any citizen who files a request. Indeed, it should be the rare instance in which a party making such a request would be able to demonstrate a need for the record stored on a magnetic medium in lieu of a paper copy."
The principal opinion finds that the record establishes the requisite "legitimate reason" why a paper copy of the records would be insufficient or impracticable. However, a review of the record reveals that the parties entered into stipulations of fact in lieu of holding an evidentiary hearing and that these stipulations contain absolutely no evidence that the hard copy of the records which Athens offered to provide would be insufficient or impracticable. The "over six hundred records" referred to in the principal opinion are not part of the record herein, and thus *Page 135 cannot be considered by this court on appeal. See State v.O'Dell (1989), 45 Ohio St. 3d 140, 142, 543 N.E.2d 1220, 1223.
Therefore, as appellee presented no evidence of a legitimate reason why a paper copy of the records would be insufficient or impracticable, the trial court erred in granting the writ. Thus, I would sustain appellant's assignment of error, reverse the judgment, and remand the cause to allow the parties to present evidence of "legitimate reasons" in accordance withMargolius.
Appellee's cross-assignment of error asserts that the trial court abused its discretion in failing to award attorney fees. Pursuant to my resolution of appellant's assignment of error, there was no abuse of discretion. In denying the ACPOA's request for attorney fees, the trial court apparently relied on Recodat. As noted by the Margolius court, Recodat generated a certain amount of confusion. In addition, the trial court based its denial of attorney fees on the fact that the case was one of first impression. In other words, Athens did not act in bad faith where the state of the law was unclear. Accordingly, I would overrule appellee's cross-assignment of error, as the court below did not abuse its discretion in denying the ACPOA's motion for attorney fees.