Opinion
No. 88-1025
Submitted January 10, 1989 —
Decided March 29, 1989.
Public records — R.C. 149.43 — Attorney fees denied, when.
APPEAL from the Court of Appeals for Summit County, No. 13575.
Relator-appellant, Beacon Journal Publishing Company ("Beacon Journal"), is a newspaper of general circulation in northeastern Ohio, including Summit County. Respondents-appellees are the Akron Metropolitan Housing Authority ("AMHA"), its board members, and Janet Purnell, the former AMHA Executive Director. Purnell is no longer employed in this position, as she submitted her resignation, effective April 30, 1988.
After Purnell tendered her resignation, the AMHA board conducted an extensive search for her replacement. It received approximately two hundred seventy-five resumes and/or letters of application regarding the executive director position. The AMHA's board members later narrowed the number of candidates under consideration to seventeen.
On or about March 1, 1988, a Beacon Journal employee requested to inspect these application materials. This request was denied. Subsequent oral and written requests for inspection were also denied. The AMHA asserted that it refused these requests partly because of its belief that the materials were confidential in nature, and because several applicants had requested that their interest in the position not be disclosed. The AMHA did, however, offer to allow the Beacon Journal access to a list of the names and addresses of most of the applicants, if the newspaper would agree to indemnify it for any claims arising out of the disclosure.
On March 15, 1988, the Beacon Journal filed the instant complaint in mandamus in the Court of Appeals for Summit County, seeking an order directing the AMHA to allow the Beacon Journal to inspect and copy all application materials received by the AMHA pertaining to the position of executive director. Although the AMHA argued, inter alia, that the application materials were personal information exempt from disclosure under R.C. Chapter 1347 (the "Privacy Act"), the court of appeals found that they were public records under R.C. 149.43(A)(1) and that they were to be made available to the public regardless of their alleged confidentiality. It therefore issued a writ of mandamus directing the AMHA board to permit the Beacon Journal to inspect and copy all the materials in question. The court denied the Beacon Journal's request for attorney fees, however, holding that such awards are discretionary under R.C. 149.43(C) and that no evidence before it established that the AMHA had acted unreasonably or in bad faith.
The AMHA did not appeal the decision. Rather, this case involves the Beacon Journal's appeal of the appellate court's denial of attorney fees. Thus, only this issue is presently before the court as a matter of right.
Porter, Wright, Morris Arthur, Robert E. Portune and Thomas H. Pyper, for appellant.
David L. Jamison and Jacqueline Silas, for appellees.
In its first proposition of law, the Beacon Journal contends that R.C. 149.43(C) requires an attorney fee award in this case. In its second proposition, it argues that even if the award of attorney fees is discretionary, the good or bad faith of the party against whom such an award is sought is not a factor to be considered where specific statutory authority exists for the award. However, both of these arguments fail in light of State, ex rel. Fox, v. Cuyahoga Cty. Hosp. System (1988), 39 Ohio St.3d 108, 529 N.E.2d 443.
At paragraph two of the syllabus in Fox, this court held that "[t]he award of attorney fees under R.C. 149.43(C) is not mandatory." Moreover, we implicitly held that a non-disclosing party's good faith may be properly examined when deciding whether to allow attorney fees to the prevailing party under the statute. Id. at 112, 529 N.E.2d at 447.
The Beacon Journal also urges in its reply brief that the court of appeals abused its discretion by failing to find that the AMHA acted in bad faith in denying access to the instant application materials. Essentially, the Beacon Journal's position is that R.C. 149.43, with the recent amendments in effect at the time of the requests for the materials, so clearly requires the AMHA to disclose these materials that it could have refused to do so only in bad faith.
An abuse of discretion is more than an error of law or judgment. It implies an attitude on the part of the court that is unreasonable, arbitrary, or unconscionable. Ojalvo v. Bd. of Trustees of Ohio State Univ. (1984), 12 Ohio St.3d 230, 232, 12 OBR 313, 315, 466 N.E.2d 875, 877. Here, the court of appeals found no evidence of bad faith after considering that the AMHA had attempted to resolve this dispute through compromise and that there was little precedent interpreting the current version of R.C. 149.43(A)(1). We are not convinced that the appellate court abused its discretion in reaching this result.
For the reasons stated above, we affirm the judgment of the court of appeals denying the requested award of attorney fees.
Judgment affirmed.
MOYER, C.J., HOLMES, WRIGHT, H. BROWN and RESNICK, JJ., concur.
SWEENEY and DOUGLAS, JJ., dissent.
I respectfully dissent. Once again this court has missed the opportunity to carry out the intention of the General Assembly in placing real teeth in the Public Records Law, R.C. 149.43. I would reverse the judgment of the court of appeals and allow attorney fees to appellant in accordance with my concurring and dissenting opinion in State, ex rel. Fox, v. Cuyahoga Cty. Hosp. System (1988), 39 Ohio St.3d 108, 112, 529 N.E.2d 443, 447.
SWEENEY, J., concurs in the foregoing dissenting opinion.