dissenting. Once again, we have the opportunity to follow the dictates of the General Assembly by putting teeth into R.C. 149.43(C)—and, once again, we fail to do so. The statute does not require that a judgment “be obtained” before an award of attorney fees is appropriate. The statute says the action to secure release of public records may be commenced “* * * to obtain a judgment that orders the governmental unit or the person 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.) The use of the words “to obtain” and “instituted” does not in any way mandate or contemplate a denial of fees because a case is settled by release of the records sought. In fact, if the words are to be interpreted correctly, an opposite conclusion must be reached based just on the common use and understanding of the words.
If the majority is correct in its application of R.C. 149.43(C), then an offending party can frustrate the release of public records up to the moment of final judgment ordering release of the records and, by then releasing the records, can do so with impunity. How this furthers the public policy promulgated by the General Assembly escapes me.
With regard to the question of whether appropriate attorney fees are discretionary or mandatory, I adhere to my position that such fees are mandated by R.C. 149.43(C), the same as I have previously expressed in a number of public records cases including State, ex rel. Fox, v. Cuyahoga Cty. Hosp. System (1988), 39 Ohio St. 3d 108, 112-114, 529 N.E. 2d 443, 447-448 (Douglas, J., concurring in part and dissenting in part).
Relator’s motion for an award of attorney fees should be granted.