concurring. I concur with the majority in the granting of a writ and the allowance of attorney fees.
While the majority has reached the right conclusion regarding the award of attorney fees, the majority does so, once again, with the wrong reasoning. I would grant attorney fees for the reasons expressed in the well-reasoned dissent of Justice Sweeney in State ex rel. Pennington v. Gundler (1996), 75 Ohio St.3d 171, 661 N.E.2d 1049, and for the reasons I have expressed in both concurrences and dissents in a number of these public record cases. Unless and until we decide that attorney fees are mandatory (thereby following the statute), this “cottage industry” of public record litigation will continue unabated, since there is no mandatory penalty for custodians of public records refusing to release such records.
It is encouraging that there now appear to be three solid votes on this court to enforce the law as written. When we finally do so, we will, I believe, see a drastic reduction of the number of open records cases coming before this and other courts. Much of the game of avoidance and delay will disappear and public records will become available upon request — not years later, if ever.
Resnick and F.E. Sweeney, JJ., concur in the foregoing concurring opinion.