concurring separately. I join with the majority in finding that relators are entitled to writs of mandamus compelling Petro to provide access to the requested records. I also join with the majority in finding that relators are entitled to awards of attorney fees. However, I do not agree with all of the reasoning employed by the majority.
I would simply find that the records must be disclosed because Petro and the special prosecutor waived the right to assert any exemptions that were raised or that could have been raised. I view the remainder of the majority’s discussion regarding the inapplicability of possible exemptions “assuming that Petro did not waive the claimed éxemptions” as mere surplusage that is not essential to the resolution of this case.
Furthermore, I disagree with the majority’s application of a “public benefit” test to support the award of attorney fees against Petro. Relators are prevailing parties under R.C. 149.43(C) and should be entitled to mandatory awards of attorney fees. See State ex rel. Olander v. French (1997), 79 Ohio St.3d 176, 180-181, 680 N.E.2d 962, 965-966 (Douglas, J., dissenting, joined by Resnick and Francis E. Sweeney, JJ.); State ex rel. Pennington v. Gundler (1996), 75 Ohio St.3d 171, 175-178, 661 N.E.2d 1049, 1052-1054 (Francis E. Sweeney, J., concurring in part and dissenting in part, joined by Douglas and Resnick, JJ.).
F.E. Sweeney, J., concurs in the foregoing concurring opinion.