concurring in part and dissenting in part. I concur with the judgment of the majority in allowing the requested writ of mandamus. I would, however, expand the syllabus and the holding of this case. To limit the definition of a “public institution” to one which is supported by “public taxation” will lead, I fear, to arguments about what is “taxation.” Is it public taxation when a city provides publicly owned land for a particular enterprise? Is it public taxation when buildings are owned by a city but are, under some arrangement, leased to an allegedly private enterprise? Is it public taxation when a city issues bonds (revenue or otherwise) using the full faith and credit of the city but provides that the obligation be amortized and retired from proceeds obtained from an entity that lists itself as a private non-profit corporation? Further, should our decision that is designed to set the law for the entire state be limited to “public hospitals”?
Inevitably, the foregoing questions will arise. Therefore, I would amend the syllabus of this case to say “any entity” in place of “public hospital” and to say “supported in any way, directly or indirectly, by public funds or is operated on land or in buildings held in public ownership” in place of “supported by public taxation.”
With regard to the holding of the majority in denying reasonable attorney fees to relators, I respectfully dissent.
Given the specific language of the statute and the legislative history of the public records legislation, it is difficult for me to understand how the majority can reach its conclusion. The *113theory of any public disclosure law is not that an individual is benefited but that the public as a whole is the beneficiary of the government’s business being open to the public. When a “public office” refuses a legitimate and reasonable request to make available, pursuant to R.C. 149.43, public records, some individual or organization must be the catalyst to enforce the law. If we, as we are doing today, prevent the recovery of reasonable attorney fees for those who seek to enforce the law on behalf of all of us, then truly those self-appointed surrogates will be “volunteers” in every sense of the word and will find themselves burdened with heavy expenses which they must personally underwrite. There will be little incentive, except possibly for news-gathering organizations, to seek enforcement of the law which, in effect, defeats the very purpose of the law.
The General Assembly obviously realized this problem when it enacted, effective October 15, 1987, a new subdivision (C) to R.C. 149.43. In doing so, the General Assembly repealed R.C. 149.99, which had provided the penalty for violation of R.C. 149.43. As set forth in fn. 2 of the majority opinion, the now repealed penalty was that an aggrieved person “may recover a forfeiture of one thousand dollars and reasonable attorneys fees for each violation.”
Arguably, the use of the word “may” by the legislature could be construed to make any award by a court, for violation of the law, discretionary. So what did the General Assembly do when confronted with this problem? It repealed R.C. 149.99 and enacted R.C. 149.43(C), which provides (in part) in no uncertain terms that a “* * * person allegedly aggrieved may commence a mandamus action to obtain a judgment that orders the governmental unit * * * responsible for the public record to comply with division (B) of this section and that awards reasonable attorney’s fees to the person that instituted the mandamus action.” (Emphasis added.)
In reviewing this language the majority says, “[tjhis provision does not appear to require the award of attorney fees but makes such an award discretionary.” The majority misses the mark. The word “may” in this newly revised section does not modify the reasonable-attorney-fees language. The word “may” only modifies the verbiage “commence a mandamus action.” It was placed in the statute so there could be no further question that an allegedly aggrieved party could use the speedy remedy of mandamus, a course of action which had been prevented by a majority of this court in State, ex rel. Fostoria Daily Review Co., v. Fostoria Hosp. Assn. (1987), 32 Ohio St. 3d 327, 512 N.E. 2d 1176. An allegedly aggrieved party can still file a civil action in the common pleas court to compel compliance with R.C. 149.43 but now may also use mandamus as a vehicle to bring about compliance.
To support its decision regarding attorney fees, the majority cites Black’s Law Dictionary and several cases, all of which involve something other than the Public Records Law. Further, in doing so, the majority ignores the explicit language of the Act and, in addition, ignores or overlooks the very precise language found in Section 5 of Am. Sub. S.B. No. 275, effective October 15, 1987, which provides:
“This act if hereby declared to be an emergency measure necessary for the immediate preservation of the public peace, health, and safety. The reason for the necessity is that, unless the effect of the recent decision of the Ohio Supreme Court in State, ex rel. Fostoria Daily Review Co., v. Fostoria Hosp. Assn. (1987), 32 Ohio St. 3d 323 *114is immediately superseded and a civil action for a writ of mandamus available in all courts with original jurisdiction reestablished as the remedy to enforce the Public Records Law, members of the general public could be denied access to public records in violation of the Public Records Law, and have no recourse other than to pursue an inadequate, statutorily prescribed remedy in the court of common pleas of injunctive relief, a forfeiture of $1,000, and a reasonable attorney’s fees award. Therefore, this action shall go into immediate effect. ” (Emphasis added.)
Accordingly, since the majority ignores the specific language and intent of the General Assembly, ignores the legislative history, frustrates the purpose of the Act and leaves aggrieved parties without a practical remedy, I must dissent from that portion of the majority opinion which denies relators their reasonable counsel fees.
By today’s decision, the majority leaves an offending governmental unit with no reason to comply with the Act. Any such unit will be defended at the taxpayers’ expense since its attorney fees will be paid out of government funds. If the “public office” loses and is not required to pay costs and reasonable attorney fees, then no penalty at all attaches since the General Assembly has repealed R.C. 149.99. Can the majority really believe it is following the will of the legislative branch of government?
Sweeney, J., concurs in the foregoing opinion.