dissenting. I must dissent from the holding of the majority that “R.C. 149.43(C) does not contemplate an award of attorney fees in mandamus actions rendered moot by the voluntary production of a record.” Such a holding will not encourage a spirit of cooperation. Quite the contrary, a holder of public records can now avoid an award of attorney fees against it by simply providing the requested document prior to an adverse judgment being entered in a mandamus action.
There is nothing in R.C. 149.43(C) which indicates that attorney fees should not be granted in a case which has been rendered moot and consequently dismissed prior to judgment. Rather, the allowance of attorney fees is discretionary. The facts of each case must be taken into consideration as to whether attorney fees should be granted. Upon a consideration of the facts of this case, it should have been readily apparent to the city of North-wood that the requested documents were public records and should have been disclosed pursuant to R.C. 149.43. The failure to disclose them forthwith caused considerable time and money to be expended by the relator. This was unnecessary and attorney fees should be granted.