[Cite as State ex rel. Petranek v. Cleveland,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 98026

STATE OF OHIO, EX REL. MARYANNE PETRANEK RELATOR

vs.

CITY OF CLEVELAND, ET AL. RESPONDENTS

JUDGMENT: WRIT GRANTED

Writ of Mandamus Order No. 455066

RELEASE DATE: May 29, 2012 ATTORNEYS FOR RELATOR

Christopher P. Finney Finney, Stagnaro, Saba & Patterson 2623 Erie Avenue Cincinnati, OH 45208

Curt C. Hartman Law Firm of Curt C. Hartman 3749 Fox Point Court Amelia, OH 45102

ATTORNEYS FOR RESPONDENTS

Barbara Langhenry Interim Director of Law City of Cleveland 601 Lakeside Avenue, Rm. 106 Cleveland, OH 44114

Mark R. Musson Assistant Director of Law City of Cleveland 601 Lakeside Avenue, Rm. 106 Cleveland, OH 44114 SEAN C. GALLAGHER, J.:

{¶1} On February 27, 2012, the relator, Maryanne Petranek, commenced this

public records mandamus action against the respondents, the city of Cleveland and Kim

Roberson, Cleveland’s public records administrator. On November 13, 2011, Petranek

sent a public records request through email requesting copies of the following records:

“Any and all letters, notes, telephone message slips, memoranda, e-mails, documents, contracts, and other forms of communications regarding (i) any agreement with Greater Cleveland Regional Transit Authority for use of the area in and about Shaker Square; (ii) any agreement between the City of Cleveland and the farmers’ market for the use of the area in or about Shaker Square; and (iii) the closure of Shaker Boulevard and/or Shaker Square for the use of the square by the farmers’ market.” (Exhibit A to the complaint.)

On November 14, 2011, Roberson sent Petranek an email acknowledging receipt of the

requests and the start of processing them. Also, on November 14, 2011, Petranek

repeated her request for records through certified mail, which was delivered on November

15, 2011. When Cleveland released no records after three months, Petranek commenced

this mandamus action.

{¶2} In their answer, the respondents asserted that the public records claims were

moot because they had delivered all documents responsive to relator’s requests.

Subsequently, this court directed the parties to certify the status of the case. The

respondents were to certify what records were released, when they were released, in what

form, and whether there were any redactions. The relator was to certify whether she was satisfied that the respondents had fulfilled her request, and if not, what records remain

outstanding and why she believes that any given request had not been fulfilled.

{¶3} The respondents certified that they had released on March 16, 2012, the

following records to Petranek: (1) The Street Opening, Sidewalk and/or Obstruction

Permit Application from the North Union Farmer’s Market, (2) Division of Assessments

and Licenses Delivery Sign-Off Sheet, and (3) Screen shots of the City’s work flow

program.

{¶4} However, it does not appear that the release of these records fulfilled

Petranek’s requests. In her certification, Petranek attached copies of all the records sent

to her. There were no records relating to any agreement with the Greater Cleveland

Regional Transit Authority for the use of the area around Shaker Square, and there was no

written explanation as to why such records were not provided. In the bottom right-hand

corner of the “Street Opening, Sidewalk and/or Obstruction Application Permit,” there is

the notation “Page 1 of 7,” but only the first page was provided. Additionally, in her

certification Petranek persuasively argues that there must be more responsive records than

those released. For example, Cleveland released the permit application, but there is no

permit, much less any other internal records concerning the propriety of granting the

permit.

{¶5} Ohio’s public record statute requires that upon request all public records

responsive to the request shall be promptly prepared and made available for inspection to

any person at all reasonable times. Also, the public entity upon request shall make copies of the requested public records available at costs within a reasonable period of

time. R.C. 149.43(B)(1). Moreover, if a request is denied, in whole or in part, the

public entity shall provide the requester with an explanation, including legal authority,

setting forth why the request was denied. If the initial request was in writing, the

explanation shall also be in writing. R.C. 149.43(B)(3). The remedy to effect

compliance with Ohio’s public record statute is the writ of mandamus to order the public

entity to comply with division (B).

{¶6} In the present case because the court is convinced that the respondents have

not fully complied with all of the requirements of division (B), including providing an

explanation for unfulfilled requests and the missing pages of the application, this court

issues the writ of mandamus and orders the respondents to comply fully with all of the

obligations in division (B), including inter alia, to provide the requested records and/or an

explanation of why the requested records have not been provided. The court further

directs the parties, if necessary, to meet or communicate, regarding the fulfilling of the

requests, and to work in good faith with each other to ensure that all possible records have

been provided or to establish that requested records do not exist. R.C. 149.43(B)(2).

{¶7} Petranek also seeks an award of statutory damages and attorney fees pursuant

to R.C. 149.43(C). Recently, the Supreme Court of Ohio has ruled that an award of

attorney fees or statutory damages is dependent upon showing the release of the records is

more for the public benefit than for the requester’s benefit. State ex rel. Dawson v.

Bloom-Carroll Local School Dist.,

,

,

, ¶34; State ex rel. Beacon Journal Publishing Co. v. Akron,

,

,

; compare State ex rel. Data Trace Information Servs.,

L.L.C. v. Cuyahoga Cty. Fiscal Officer,

,

,

, ¶69 (failure to establish right to statutory damages and attorney fees throughout

the case resulted in waiver).

{¶8} In her complaint, Petranek states that her public records request would serve

the public benefit by encouraging and promoting compliance with the Ohio Public

Records Act and by subjecting the city of Cleveland to public exposure, review, and

criticism.1 This does not state a sufficient public benefit to support an award of attorney

fees or statutory damages, because any and all public records requests would provide

these minimal benefits. A statutory award must be based on more than minimal benefits.

Additionally, the court declines to award statutory damages because Petranek

completed her request through email before she completed the request through certified

mail, which is a statutory prerequisite for statutory damages. Such damages are not

meant to be a windfall obtained through gamesmanship.

{¶9} Accordingly, the court issues the writ of mandamus and orders the

respondents to comply completely with R.C. 149.43(B), but declines to issue an award of

attorney fees or statutory damages. Respondents to pay costs. This court directs the

Paragraph 36 of the complaint actually states “subjecting * * * the City of Sharonville to 1

public exposure, review and criticism.” This appears to be a clerical error. Clerk of the Eighth District Court of Appeals to serve upon the parties notice of this

judgment and its date of entry upon the journal. Civ.R. 58(B).

Writ granted.

SEAN C. GALLAGHER, JUDGE

LARRY A. JONES, SR., P.J., and KENNETH A. ROCCO, J., CONCUR