Being able to request public records is a very important element of allowing the public to know how the government – at all levels – is conducting business. And it’s important that the requests be fulfilled in a timely manner, as quickly as possible.
Last week, the U.S. State Department responded to a request for the records of former Secretary of State Hillary Clinton’s aides by announcing that it would take 75 years to gather the information and comply with the request. How that gets resolved is yet to be seen, but here at the Ohio Supreme Court, we had a public records case that dealt with a much different time frame. In our case, the person making the public records request thought the government entity was dragging its feet when it took three days to produce the records. Here’s what happened.
Terra Woodard Metzger was the person responsible for the public records for the West Licking Joint Fire District (“the district”). Immediately after a meeting of the West Licking Joint Fire District Board of Trustees on Dec. 8, 2011 – at about 9 p.m. – John H. Davis submitted requests to Metzger for the personnel records of six employees of the district.
The requests were similar and sought records regarding work performance, disciplinary actions, and any other documents that would indicate that the employees could not perform their jobs.
On Tuesday, Dec. 13, 2011, at approximately 11:30 a.m., Davis called Metzger to inquire about the status of the requests. Metzger told Davis that the requests were being reviewed by legal counsel before release.
Davis didn’t raise any objection about the delay during the phone call, but later that day – at 1:59 p.m. – he filed an action in the court of appeals. Meanwhile, the district’s legal counsel completed the review of the requested records the same day, and Metzger sent the documents to Davis by e-mail at 3:28 p.m. that afternoon. Nevertheless, the next day – Dec. 14, 2011 – Metzger was served with the complaint from the action that Davis had filed with the court of appeals.
After reviewing the case, the court of appeals held that Metzger’s production of the requested documents less than three business days after the request was reasonable. It also found that Davis had engaged in unnecessary discovery and motion practice in the case and awarded Metzger attorney fees and costs subject to a hearing to determine their amount and reasonableness. That hearing was delayed when Davis filed an appeal with us – the Ohio Supreme Court.
On that appeal – which came before our court in 2014 – we held that because the department substantially complied with Davis’s public-records request in less than three business days, the district’s response was reasonable, and thus the court of appeals correctly granted summary judgment and denied Davis’s requested writ.
However, we did find that the court of appeals abused its discretion when it failed to hold a show-cause hearing before finding that Davis had engaged in frivolous conduct under Ohio law. Therefore, we sent the case back to the court of appeals.
The court of appeals held the required hearing and found that frivolous conduct had occurred but, because Davis was following the advice of his lawyer, Davis himself was not to blame. Instead, the court of appeals laid the blame for the conduct on Davis’s lawyer and granted the request for attorney fees against the Davis’s attorney in the amount of $28,332.05.
After that, Davis filed another appeal with us in which he argued that the court of appeals erred in finding that he or his attorney engaged in frivolous conduct under Ohio law.
The law in question defines frivolous conduct as conduct that serves merely to harass or maliciously injure another party or conduct that is for another improper purpose, “including, but not limited to, causing unnecessary delay or a needless increase in the cost of litigation,” conduct that is not warranted under existing law and that “cannot be supported by a good faith argument for an extension, modification, or reversal of existing law, or cannot be supported by a good faith argument for the establishment of new law,” and conduct that consists of allegations that “have no evidentiary support.”
Did the court of appeals abuse its discretion by awarding attorney fees for frivolous conduct? To prove that, the appealing party – Davis, in this instance – must show that the lower court’s decision to grant attorney fees was unreasonable, arbitrary, or unreasonable.
Davis asserted that the court of appeals’ decision granting sanctions was wrong because the lawsuit itself, and his attorney’s conduct in the litigation were not frivolous. He disagreed with the court of appeals’ ruling that filing an action after only three days was unwarranted. And he argued that the decision was at odds with a decision by our court from 2002, in which we concluded that a delay of four business days was unreasonable.
But we had already held – in Davis’s first appeal in 2014 – that the district’s actions in producing the records in three days were reasonable. And we had determined that Davis’s situation was different from the actions in the 2002 case.
We concluded that the court of appeals did not abuse its discretion in finding that filing the lawsuit only three days after the request was not reasonable.
Moreover, Davis did not follow up with Metzger to let her know that he thought some of the requested records were being improperly withheld. Nor did Davis amend his complaint to assert that not all records had been produced. Instead, his attorney continued to pursue discovery in the case, including scheduling and conducting three depositions.
The court of appeals correctly found that the continuation of unnecessary discovery after the requested records were provided was frivolous conduct. And because the court of appeals found that the actions were undertaken on advice of Davis’s attorney, it was the attorney who was liable for the costs.
Therefore, by a seven-to-zero vote, we affirmed the judgment by the court of appeals.
Paul Pfeifer is an associate justice of the Supreme Court of Ohio.