State ex rel. Dillery v. Icsman

Cook, J.,

concurring in part and dissenting in part. I concur in the judgment and opinion reversing the judgment of the court of appeals awarding Dillery attorney fees for her first request for records “containing any reference whatsoever” to Dillery and in additionally reversing the court’s award of her litigation expenses. For the following reasons, however, I respectfully dissent from that portion of the judgment and opinion holding that Dillery is entitled to attorney fees for her request for street-repair records.

In the court of appeals, Dillery neither specifically asserted nor established a cognizable public benefit from her mandamus action. To the contrary, as the majority acknowledges, she initially erroneously claimed automatic entitlement to attorney fees once the Pennington factors are met, and she subsequently asserted that she was entitled to attorney fees because she is “just a taxpayer seeking information for herself” (Emphasis added.) By so stating, it is evident that Dillery sought release of the street-repair records-in this case for her personal battle against the city and not for any public purpose. See State ex rel. Olander v. French (1997), 79 Ohio St.3d 176, 180, 680 N.E.2d 962, 965.

Even in this court, Dillery’s belated attempts to specify a public benefit are, as the majority intimates, unpersuasive. In her appellate brief, Dillery claims that the public benefit emanated from her need for these records in order “to fully and accurately respond to questions [from] the various media” and “to see if she had the merits to file a lawsuit in federal court against the city of Sandusky for violating her civil rights under the Americans with Disabilities Act.” Although a public benefit may result from the satisfaction of the public’s right to know, id., Dillery is not a member of the media and her asserted interest in informing the public is speculative and unsupported by the record. In addition, at the time she filed her mandamus action, Dillery had already filed her action against the city in federal court with claims under the Americans with Disabilities Act, so her attempted justification of needing the records to determine if she could file a federal lawsuit is meritless.

Moreover, in considering the reasonableness of the city officials’ failure to comply with her street-repair records request, State ex rel. Gannett Satellite Info. Network v. Shirey (1997), 78 Ohio St.3d 400, 404, 678 N.E.2d 557, 561, it is significant that whenever Dillery requested records in her cases in accordance with criminal and civil discovery provisions, the city timely provided her with access to those records. Given Steckman, appellants could have reasonably believed that Dillery’s records requests were little more than unfounded attempts to circumvent Crim.R. 16 in her criminal cases or the civil discovery process in her federal case. See State ex rel. Steckman v. Jackson (1994), 70 Ohio St.3d 420, 639 N.E.2d 83, at paragraph two of the syllabus; see, also, State ex rel. WHIO-TV-7 v. Lowe (1997), 77 Ohio St.3d 350, 354, 673 N.E.2d 1360, 1363, *320quoting United States v. Anderson (CA.11, 1986), 799 F.2d 1438, 1441 (“ ‘Discovery, whether civil or criminal, is essentially a private process because the litigants and the courts assume that the sole purpose of discovery is to assist trial preparation. That is why parties regularly agree, and courts often order, that discovery information will remain private.’ ”)

K. Ronald Bailey & Associates Co., L.P.A, and K. Ronald Bailey, for appellee. Isaac, Brant, Ledman & Teetor, Mark R. Weaver and Barbara Kozar Letcher, for appellants. Betty D. Montgomery, Attorney General, and Stephen P. Carney, Associate Solicitor, urging reversal for amicus curiae Attorney General of Ohio.

Based on the foregoing, the court of appeals erred in awarding attorney fees and litigation expenses to Dillery. Reversal is therefore warranted, and remand should be limited to the issue of whether Dillery might be entitled to recover her costs, ie., her filing fee. Because the majority does not deny Dillery’s request for attorney fees regarding her request for street-repair records, I respectfully dissent from that portion of the judgment and opinion.

Mover, C.J., concurs in the foregoing opinion.