dissenting. I respectfully dissent from the holding of the majority that R.C. 149.99 provides an adequate remedy at law which precludes a mandamus action in the court of appeals to attempt to obtain access to public records under R.C. 149.43.
R.C. 149.99 provides that a person may bring a civil action to compel compliance with the public records statute, R.C. 149.43, and that, ancillary to a judgment of compliance, the person may recover a penalty of $1,000 and reasonable attorney fees. The civil action referred to in R.C. 149.99, at least insofar as a common pleas court action is concerned, is a mandatory injunction action or a statutory mandamus action pursuant to R.C. Chapter 2731. Since an action to compel compliance requires an order of affirmative compliance, only those two remedies will provide the relief sought, which is to compel compliance.
Neither statutory mandamus nor statutory mandatory injunction is a plain and adequate remedy in the ordinary course of law. The availability of these extraordinary remedies in the common pleas court is not a ground upon which the Supreme Court or the court of appeals can deny the exercise of jurisdiction in an original mandamus action. State, ex rel. Pressley, v. Indus. Comm. (1967), 11 Ohio St. 2d 141, 40 O.O. 2d 141, 228 N.E. 2d 631; State, ex rel. Fenske, v. McGovern (1984), 11 Ohio St. 3d 129, 11 OBR 426, 464 N.E. 2d 525, paragraph one of the syllabus.
In light of the fact that the majority has held that the court of appeals properly dismissed the mandamus action for lack of jurisdiction due to there being an adequate remedy in the ordinary course of law in the common pleas court, it is inappropriate to decide or to take a position on the merits of the case. The principle relied upon by Justice Douglas, that in an appeal as of right from a judgment of the court of appeals involving an extraordinary writ this court will consider the case as if the action originally had been filed here, is inapplicable where there is an affirmance of the court of appeals based upon lack of jurisdiction to entertain the extraordinary writ.