Opinion
No. 89-4634.
Decided February 22, 1990.
Fritz Byers and Robert Z. Kaplan, for plaintiff.
C. Allen McConnell and David R. Taylor III, for defendants.
The plaintiff, the Toledo Blade Company ("the Blade"), brought this action under the Ohio Public Meetings Law, R.C. 121.22, and under the Ohio Public Records Law, R.C. 149.43. The Blade seeks orders from this court to compel the defendants, the Economic Opportunity Planning Association of Greater Toledo ("EOPA") and the members of its Board of Trustees, to comply with those laws.
In its complaint, the Blade contends that the defendants have acted and have threatened to continue to act in violation of the Public Meetings Law. On the basis of alleged violations and alleged threatened future violations, the action seeks injunctive relief against the defendants as provided for by R.C. 121.22(I).
Specifically, the complaint alleges that EOPA is a public body within the meaning of R.C. 121.22(B)(1), and so is required to conduct all of its meetings as public meetings in accordance with the Public Meetings Law. The Blade contends that, on two occasions, the Board of Trustees of EOPA conducted meetings within the meaning of the Public Meetings Law that were not public. The Blade contends further that the subject matter of those meetings did not fall within the exceptions set forth in the Public Meetings Law under which public bodies may hold executive sessions. Finally, the Blade contends that, even if the meetings were appropriately conducted as executive sessions, the board did not follow the procedure prescribed by R.C. 121.22(G) for convening and conducting such executive sessions.
For its relief under the Public Meetings Law, the Blade seeks an injunction compelling the defendants to comply with R.C. 121.22; a declaration that the action taken by the EOPA Board of Trustees at the November 27, 1989 meeting, and at a later special meeting, was invalid; an order that the Board of Trustees pay civil forfeiture in the amount of $100 for each of the two violations; and an award of attorney fees and court costs under R.C. 121.22(I)(2).
The complaint also sought a writ of mandamus, under the Ohio Public Records Law, R.C. 149.43(C), compelling the defendants to comply with that law. The Blade alleges that the defendants have failed and declined to promptly prepare their public records and make them available to the Blade in accordance with R.C. 149.43(B).
This portion of the complaint appeared to have been resolved by a consent decree that was approved and entered as an order by the court on January 10, 1990. Under the terms of that decree, EOPA and its Board of Trustees agreed to comply at all times in the future with the Public Records Law in response to requests from the Blade for access to records, and agreed to make their records available to the Blade at all times in the future in accordance with the provisions of that law.
Until the defendants' response to plaintiffs' motion for summary judgment, the court assumed this consent decree ended the litigation regarding the application of the Public Records Law. It appears, however, that the defendants seek summary judgment as to that issue in the form of a ruling that concludes the defendants are not a public office subject to the Public Records Law. The matter is discussed below.
On January 24, 1990, the Blade filed its motion for summary judgment on the counts of the complaint relating to the Public Meetings Law. That motion, and the supporting memorandum, state that the only issue for decision is whether EOPA is a public body within the meaning of R.C. 121.22. The motion states that, on that issue, there is no genuine issue as to any material fact and that the Blade is entitled to judgment as a matter of law. The motion identifies nineteen undisputed facts that are material to the legal issue raised by the motion.
On February 13, 1990, defendants filed their response to plaintiff's motion and their own motion for summary judgment and a memorandum in support. That motion seeks summary judgment on the issue of whether EOPA is a public body within the meaning of the Ohio Public Meetings Law.
Although the motion does not expressly say so, the supporting memorandum states that the defendants also seek a judgment that they are not subject to the Ohio Public Records Law. As noted above, plaintiff did not move for summary judgment on this issue because it believed that issue to be resolved by the consent decree entered as a final order of the court on January 10, 1990. Plaintiff's view of that issue is supported by the language of that order, which obligates EOPA to comply with the Public Records Law "at all times in the future." Now, however, it appears that EOPA challenges that order, contending that it has agreed to furnish information to the Blade only "pending a judicial determination."
The language of the court's order of January 10 does not support EOPA's contention. Nonetheless, because defendants seek a ruling on the issue, and because it is apparent that the Blade's motion for summary judgment would have sought judgment on the issue as well were it not for the language of the court's order, the court will decide the issue of whether EOPA is a public office within the Public Records Law.
In their motion, the defendants list the same nineteen facts that are recited in the plaintiff's motion. Accordingly, although these nineteen facts include certain facts not set forth in the stipulations filed January 24, the court will treat these nineteen facts as stipulations of the parties for the purpose of deciding the motion.
The facts that are established by the agreement of the parties are the following:
1. EOPA has been designated by the Ohio Office of Community Services as a community action agency within the meaning of R.C. 122.69.
2. EOPA has obtained the endorsement of the chief elected officials of at least two thirds of the municipal corporations and the counties within the community it serves, as provided for by R.C. 122.69(A).
3. EOPA meets all of the requirements for a community action agency set forth in R.C. 122.69(B).
4. The EOPA board is organized according to R.C. 122.70 and exercises the powers and duties prescribed by that statute.
5. The EOPA Articles of Incorporation state, in their opening provisions, that the purposes for which the group was formed, as expressed in the Articles as a series of purposes, "shall [not] be construed * * * as restricting or limiting in any way the general powers of this corporation, or their exercise and enjoyment as they are expressly or impliedly granted by the laws of the State of Ohio, and further shall also be construed with particular reference to, but not limited to, participation under the Economic Opportunity Act of 1964, as amended."
6. The EOPA Code of Regulations states that a primary purpose of EOPA is "to serve as a local area fiscal agent for the utilization of and application for federal funds and other governmental * * * funds."
7. The Board of Trustees of EOPA is composed in compliance with R.C. 122.69(B)(3) and Section 9904(c)(3), Title 42, U.S.Code. According to the EOPA Code of Regulations, the board consists of eighteen members, one third of whom are appointed by "either the Lucas County Commissioners, the Mayor of the city of Toledo or any other governmental jurisdiction represented on the board."
8. The EOPA Code of Regulations provides that meetings of the Board of Trustees shall be on a bi-monthly basis, and "shall be scheduled for the convenience of its members and of the general public."
9. The EOPA Code of Regulations states further that "all meetings of the Board of Trustees shall be open to the public, except when the matter to be discussed and/or acted upon involves staff personnel or discussion regarding agency funding levels."
10. The EOPA Code of Regulations assigns to the Board of Trustees the following responsibilities:
a. compliance with all of the provisions of the Economic Opportunity Act of 1964, as amended;
b. compliance with all conditions of funding grants; and
c. receipt, expenditure, transfer and accounting for federal, state, and local assistance funds.
11. EOPA currently operates the following programs with the following funding sources and amounts:
PROGRAM TITLE FUNDING SOURCE AMOUNT Community Services CSBG $ 603,567 HEAP Emergency LIHEAP 710,000 HEAP Administration LIHEAP 171,088 Head Start HHS 2,696.037 Innovative Head Start HHS 60,000 Supplemental Head Start State 114,000 (Est) Long Term Care Area Office On Aging 91,180 (Est) Brokering Program City of Toledo 14,000 Housing Rehabilitation City of Toledo 75,000 House Sales Private 50,000 Emergency Homeless ODOD 37,413 Emergency Shelter City of Toledo 14,600 MBCAP 89,000 Prep, Inc. Prep, Inc. 40,000 TOTAL $4,765,885
12. LIHEAP (Low-Income Home Energy Assistance Program) is a federally funded program, administered by the Ohio Department of Development, which is designed to help eligible Ohioans meet the cost of home heating. The Department of Development operates this program through EOPA. The department's public postings, notifying Ohioans of the existence and terms of eligibility of the program, direct applicants to contact "E.O.P.A. HEAP Program" at 505 Hamilton Street in Toledo, Ohio. The phone number is listed as 241-2213. This public posting of the Department of Development is an official document of the department, and bears the name of the Governor, and other information required by law to appear on public documents of this kind.
13. On November 27, 1989, the Board of Trustees of EOPA held a prearranged meeting of a majority of its members to conduct the business of EOPA.
14. The board met in closed session from 5:00 p.m. until approximately 7:30 p.m. on November 27, 1989, and excluded from the meeting members of the public, including but not limited to a reporter employed by the Blade who was on assignment to attend the EOPA board meeting and to report on that meeting.
15. At no time on November 27, 1989, before the board began its closed session, did the board vote, by roll call vote, to hold an executive session.
16. Defendant James Caldwell informed the Blade reporter that the meeting was being held "to review and up-date policy as it pertains to what happened."
17. At 7:30 on November 27, 1989, at the conclusion of the closed meeting, defendant Caldwell informed the Blade reporter and others that the board had taken the following action during the closed meeting:
A. Approved an independent audit, by an independent auditor, of Head Start's financial records; and
B. Approved immediate instigation of an investigation into the Head Start Program's policies and procedures.
18. On November 29, 1989, defendant Caldwell wrote to William Sullivan, the Director of the HHS Office of Community Programs, to notify him that the EOPA board had held a special meeting to discuss and agree to the conditions that HHS had placed on EOPA's receipt of certain emergency funding for its Head Start program.
19. An official document, bearing the signatures of all members of the EOPA Board of Trustees except that of defendant Joyce Dunnavant, reflects the agreement of the board to the stipulations set forth by the Department of Health and Human Services.
I. The Public Meetings Law
The parties seek judgment as a matter of law on the issue of whether EOPA is a public body within the Ohio Public Meetings Law, R.C. 121.22. The parties' legal arguments are based on common facts; indeed, it appears that the parties agree on the specific fact that is most critical to determination of this legal issue: EOPA has been designated by the Ohio Office of Community Services as a community action agency under R.C. 122.69. From that fact, and certain related facts, the parties reach sharply different conclusions.
The Blade advances a detailed and lengthy argument that EOPA is a public body. In addition to EOPA's status as a community action agency, the Blade relies on an extensive review of federal and state laws that govern the programs that are operated by EOPA, primarily the programs funded by Community Services Block Grants and the Head Start program. The Blade's extensive argument concludes with the contention that, because of the dense network of governmental regulations that govern virtually every aspect of EOPA's operations, EOPA is a public body and therefore is subject to the Public Meetings Law.
The Blade also discusses, in passing, the Low Income Home Energy Assistance Program, a federally funded program administered by the Ohio Department of Development.
EOPA, on the other hand, contends that, because it is a community action agency, it is not covered by the Public Meetings Law. In support of this position, it cites R.C. 122.70(D), which requires community action agencies to convene public meetings to provide the community a chance to comment on public policies, and R.C. 122.66(D), which defines the term "community action agency." In short, EOPA argues that it does not have the characteristics of a public office as defined by the Supreme Court of Ohio, and is not comprised of public officials. Therefore, EOPA asserts, it is not subject to the Public Meetings Law.
The court has reviewed in detail these arguments, and the authorities advanced by the parties. It has also read every published case involving the Ohio Public Meetings Law. On the basis of this review, the court concludes that, beyond question, EOPA is a public body within the meaning of R.C. 121.22(B)(1), and so is subject to the requirement that it conduct its meetings as public meetings.
Although the court finds the Blade's comprehensive argument based on federal and state statutes and regulations convincing, the issue is considerably less complicated. Simply stated, EOPA is a public body by virtue of its designation by the Ohio Department of Development as a community action agency under R.C. 122.69. This action by the state confers on EOPA a public status, to which is attached a range of rights, duties and powers that are inherently characteristic of a public body.
In its capacity as a community action agency, EOPA receives, is accountable for and is charged with spending substantial sums of public funds in the operation of programs for the public welfare. These programs and EOPA's plans for operating them are submitted to and approved by the Governor of Ohio. EOPA must comply with those plans, and with state statutory provisions, or lose its status as a community action agency.
Because of those fundamental facts, which are established by stipulation of the parties, the court concludes that EOPA is a public body within the meaning of R.C. 121.22(B)(1) and therefore is subject to the mandates of the Public Meetings Law.
The Public Meetings Law, R.C. 121.22, requires that all meetings of any public body be open to the public at all times. R.C. 121.22(C). The law provides that it is to be "liberally construed to require public officials to take official action and to conduct all deliberations upon official business only in open meetings." R.C. 121.22(A).
This requirement is subject to certain limited exceptions that are not at issue here.
R.C. 121.22(B)(1) defines a public body as follows:
"[A]ny board, commission, committee, or similar decision-making body of a state agency, institution, or authority, and any legislative authority, or board, commission, committee, agency, authority, or similar decision-making body of any county, township, municipal corporation, school district or other political subdivision or local public institution."
The language of the statute and its role in the organization of public affairs in Ohio make clear that this language is to be given a broad interpretation to ensure that the official business of the state is conducted openly. Consistent with that critical objective, a governmental decision-making body cannot assign its decisions to a nominally private body in order to shield those decisions from public scrutiny. See, e.g., Maser v. Canton (1978), 62 Ohio App.2d 174, 16 O.O.3d 373, 405 N.E.2d 731, syllabus.
With these essential principles in mind, there can be no question that EOPA is a public body within the meaning of the Public Meetings Law. EOPA has been designated by the Ohio Department of Development, through its Office of Community Services, as a community action agency within the meaning of R.C. 122.69. To be eligible for this designation, EOPA must obtain the endorsement of officials from at least two thirds of the municipal corporations and counties within the community it serves. R.C. 122.69(A). The Board of Trustees of EOPA must be organized in accordance with the provisions of state statute, and that statute defines the powers and duties that can and must be exercised by the board. R.C. 122.70.
That R.C. 122.66(D) defines a community action agency as a private non-profit agency is immaterial for the purpose of determining the application of the Public Meetings Law. The statutory provision in question identifies the kind of agency that is subject to designation by the Office of Community Services under R.C. 122.68 and 122.69. It is that designation, not the private status of the agency prior to designation, that renders community action agencies public within the Public Meetings Law.
EOPA argues that the provision in R.C. 122.70 requiring community action agencies to convene public meetings to provide community members the opportunity to comment on public policies and programs to reduce poverty reflects the recognition of the General Assembly that, otherwise, the meetings of community action agencies are private. The argument is idle, and reflects a profound misunderstanding of the law. R.C. 122.70(D) clearly is intended to ensure that community action agencies will conduct meetings to ensure that community members can participate in the formulation of policy. Without this statutory mandate, agencies would not be obligated to permit such commentary by the public. That the legislature requires such meetings actually reflects its judgment that the functions of community action agencies are suffused with the public purpose, a point that supports, rather than refutes, the conclusion that such agencies are public bodies under R.C. 121.22.
Designation as a community action agency is critical to EOPA because it is an absolute prerequisite to EOPA's ability to receive the governmental funds for the programs that EOPA operates. Once EOPA qualifies to receive, and actually receives, those funds, their use is a matter of critical importance to the state government. The Governor must certify to the federal government that the funds that are distributed to community action agencies will be used in accordance with the plan the Governor has developed, approved, and submitted to the federal government.
These connections between EOPA and state government are more than sufficient to render EOPA a public body within the meaning of the Public Meetings Law. In this regard, Stegall v. Joint Twp. Dist. Memorial Hosp. (1985), 20 Ohio App.3d 100, 20 OBR 122, 484 N.E.2d 1381, is highly instructive.
In Stegall, the plaintiffs, physicians on the staff of the Joint Township District Memorial Hospital, sought a declaration that the Board of Hospital Governors was a public body within R.C. 121.22. The trial court granted the declaration sought by the plaintiffs, and the Court of Appeals for Auglaize County affirmed. In affirming the trial court's judgment, the appellate court quoted at length from the trial court's factual determinations.
The facts in Stegall that are pertinent here are that the hospital was organized pursuant to state statute; that the hospital's Board of Trustees was established under the authority of R.C. 513.07; that state statute authorized the Board of Trustees to undertake certain actions relating to funding for the hospital; that the trustees in turn were authorized to appoint a Board of Governors to which might be delegated the management of the daily activities of the hospital; and that the Board of Governors was authorized by R.C. 513.17 to discharge a variety of critical hospital functions, subject to the consent and approval of the Board of Trustees. Stegall, supra, 20 Ohio App.3d at 102, 20 OBR at 123, 484 N.E.2d at 1382.
From these facts, the court of appeals concluded easily that "[the] board is necessarily, by virtue of its statutory definition, a decision-making body. It is, furthermore, a township board since it exists by virtue of authority granted by the legislature for the creation of joint township hospital facilities. Thus, it falls exactly within the statutory definition of a public body." Id.
Because of this obvious conclusion, the court in Stegall found it unnecessary to consider factual material regarding the actual operation of the specific Board of Governors. It was sufficient for the conclusion that the Board of Governors, simply by being a board created under R.C. 513.16 and 513.17, is a public body subject to the requirements of R.C. 121.22(C).
Similarly, in this case the court finds it unnecessary to review in any detail the daily operations of EOPA and its Board of Trustees, as those operations are controlled by state and federal statutes and regulations. It is more than sufficient for the purpose of this case to note that EOPA is designated by a state agency as a community action agency; that without this designation EOPA would be ineligible to receive the state monies that fund virtually all of the programs that it operates; that state and federal law and federal regulations govern the operation of the programs operated by EOPA; and that the Board of Trustees must be composed in accordance with state law and is assigned by state statute specific powers and duties.
These characteristics of EOPA unquestionably make it and its Board of Trustees public bodies under the Public Meetings Law. Specifically, the Board of Trustees is a decision-making body of a state agency.
EOPA functions essentially as a state agency for the purpose of operating programs that are developed and approved by state government for the benefit and welfare of residents of the state. Certainly, if the programs that EOPA operated with state funds were operated directly by the Department of Development, rather than by EOPA in response to delegation, the local agency and its board would be public bodies. That the state has chosen, pursuant to specific state statutes, to designate EOPA as an agency eligible to receive state funds and operate programs with those funds, and to delegate to EOPA what are essentially state functions, does not, and as a matter of law cannot, shield those programs and the decisions of the board from public review. In this connection, EOPA's status as a private, non-profit corporation is entirely irrelevant.
This decision is easily reached under the Public Meetings Law. The defendants have provided no support for their contention that they are not covered by that law. Their reliance on State, ex rel. v. Jennings (1898), 57 Ohio St. 415, 49 N.E. 404, is unavailing, as discussed below. Similarly, they misconstrue and apparently misinterpret an opinion of the Attorney General on which they rely. Because consideration of that opinion is not necessary for decision in this case, it will not be discussed in detail. It must be observed, however, that the defendants' partial quotation from 1979 Ohio Atty.Gen.Ops. No. 79-061 is highly misleading and misinterprets the opinion of the Attorney General. Read accurately and in its entirety, that opinion supports the conclusion of this court.
Even if one refers to the settled criteria for determining public status of a body, without reference to the specific imperatives of the Public Meetings Law, the conclusion would not change. Those criteria are (a) the source of authority; (b) the purpose for which the body exercises authority; (c) the nature of the duties discharged; and (d) and relationship of those duties to the sovereign's power. See, generally, State, ex rel. Milburn, v. Pethtel (1950), 153 Ohio St. 1, 44 O.O. 103, 90 N.E.2d 686; State, ex rel. Herbert, v. Ferguson (1944), 142 Ohio St. 496, 27 O.O. 415, 52 N.E.2d 980; State, ex rel., v. Brennan (1892), 49 Ohio St. 33, 29 N.E. 593.
Under these criteria, the conclusion is inescapable that EOPA is a public body. Its authority with respect to the programs it operates is derived from state statute and the designation of a state agency; it exercises decision making authority over state monies for public purposes; and it has been delegated critical aspects of power traditionally associated with the state. In sum, EOPA is, in its essence, an agency of state government for the purpose of receiving governmental funds and using those funds to operate public programs for the public good.
As noted above, these conclusions are easily reached and are not subject to any legitimate dispute. They render it unnecessary to delve further into the intricate matters of EOPA's daily operations, and the myriad of federal regulations and state rules that constrain those operations.
The conclusion that the EOPA Board of Trustees is a public body within R.C. 121.22(B)(1) means that it is subject to the requirement that all of its meetings be open to the public at all times. The agreed facts are that this mandate was violated on two occasions: first, on November 27, 1989, when the board went into closed session to discuss matters that do not fall within any exception set forth in R.C. 121.22(G) ; second, by reaching a decision to agree to certain stipulations regarding the operation of the Head Start program by a process other than by public meeting.
Because of this conclusion, the court need not reach the issue of whether the closed sessions were convened in compliance with the procedural requirements of R.C. 121.22(G).
The court need not decide whether a meeting was held for this purpose. Undoubtedly, the decision of the members of the board to agree to those stipulations constituted official action. A public body cannot avoid the Public Meetings Law by taking official action outside meetings.
Thus, the court concludes that the defendants have violated the Public Meetings Law. Upon proof of these violations, the court must issue an injunction to compel the members of the Board of Trustees of EOPA to comply with the provisions of R.C. 121.22. Such an injunction is hereby issued. The Board of Trustees of EOPA is hereby enjoined permanently to comply with all provisions of R.C. 121.22.
The law requires also that if an injunction under R.C. 121.22 is issued, the court "also shall order the public body that it enjoins to pay a civil forfeiture of One Hundred Dollars." Accordingly, the court orders that the Board of Trustees pay a civil forfeiture of $200 for the two violations proved in this action. This money should be deposited with the court, payable to the Lucas County Treasurer, within ten days of the date of this order.
Finally, the Public Meetings Law provides further that "formal action of any kind is invalid unless adopted in an open meeting of the public body." R.C. 121.22(H). Because the EOPA board took formal action at meetings that were closed, or in the absence of any meeting, those actions are invalid, and the court so declares.
The propriety of an award of attorney fees is discussed in Section III, below.
II. The Public Records Law
Much of the preceding discussion applies to the determination of EOPA's status under the Public Records Law as well. Indeed, the determination of EOPA's status as a public office under the Public Records Law is even easier than the above determination. Under R.C. 149.43(A)(1), a public record, subject to public disclosure means "any record that is kept by any public office, including, but not limited to, state, county, city, village, township, and school district units."
The decisions of the Ohio Supreme Court under this law make clear that it is to be read broadly. See, e.g., State, ex rel. Natl. Broadcasting Co., v. Cleveland (1988), 38 Ohio St.3d 79, 526 N.E.2d 786.
The decisions of the Supreme Court that concentrate on the issue of what is a "public office" under the law make clear that this term, too, is to be given broad reading. In State, ex. rel. Fox, v. Cuyahoga Cty. Hosp. System (1988), 39 Ohio St.3d 108, 529 N.E.2d 443, the court held that "an entity organized for rendering service to the residents of its community and supported by public taxation is deemed a public institution" and therefore a public office. Id. at 110, 529 N.E.2d at 445, citing Halaby v. Bd. of Directors of Univ. of Cincinnati (1954), 162 Ohio St. 290, 55 O.O. 171, 123 N.E.2d 3; see, also, State, ex rel. Fostoria Daily Review Co., v. Fostoria Hosp. Assn. (1988), 40 Ohio St.3d 10, 531 N.E.2d 313.
In support of its claim that it is not a public office, EOPA cites only State, ex rel., v. Jennings, supra. That case offers no support to EOPA. In fact, by designating EOPA a community action agency, the state Department of Development has conferred on EOPA a significant share of the sovereignty of the state. EOPA's arguments on this issue are misguided.
EOPA is a public office within the meaning of R.C. 149.43 and its records are public records. EOPA is obligated to make those records available for inspection and copying in accordance with R.C. 149.43(B).
R.C. 149.43(C) authorizes issuance of a writ of mandamus that orders the person responsible for the public record sought by the plaintiff to comply with R.C. 149.43(B). At the time the Blade filed this action, the defendants had, through counsel, made clear that they would not make all of their records available. This position was confirmed during a conference in the court's chambers on January 5, 1990. Although the Blade states that it was under the impression that the January 10, 1990 order had resolved this issue, it appears from EOPA's memorandum that certain documents may still not have been provided.
In any event, a public office may not withhold its public records from inspection and copying until a member of the public files a mandamus action, and then escape the consequences of such wrongful withholding by belatedly providing the records. Accordingly, a writ of mandamus shall issue to the EOPA, as a governmental unit within the meaning of R.C. 149.43(C), ordering it to comply with R.C. 149.43.
III. Attorney Fees
The preceding discussion makes clear that the Blade prevailed on every issue in this litigation, and that EOPA's opposition to the Blade's request for access to the records and meetings of EOPA had no legal foundation. The Blade's complaint seeks attorney fees, and the court's decision on the two issues in this case requires that it now consider the propriety of an award of attorney fees.
The language regarding attorney fees in the two statutes is different and this difference requires discussion. The Public Records Law, R.C. 149.43(C), provides as follows:
"[T]he person allegedly aggrieved may commence a mandamus action to obtain a judgment that orders the governmental unit or the person responsible for the public record to comply with division (B) of this section and that awards reasonable attorney's fees to the person that instituted the mandamus action."
In contrast, the Public Meetings Law provides as follows:
"If the court of common pleas issues an injunction pursuant to this section, the court may award to the party that sought the injunction all court costs and reasonable attorney's fees * * *." R.C. 121.22(I)(2).
Irrespective of the different language, the theories of these laws and the reasons for providing for recovery of attorney fees if one prevails in an action under the laws are substantially the same. An order securing enforcement of these laws benefits not only the individual plaintiff but the public as a whole. The entire citizenry is the beneficiary of the principle that governmental affairs should be conducted in public. The prospect of recovering attorney fees provides some incentive for private individuals or companies to bear the expense of enforcing these laws. Without such a prospect, these critical public laws might go unattended and unenforced, to the great detriment of our society and its principles of self-governance.
The General Assembly obviously realized this problem when it enacted the Public Records Law. The language of that law, quoted above, seems to this court to make clear the judgment of the General Assembly that an award of attorney fees under R.C. 149.43 is mandatory. The word "may" in subsection (C) modifies only the phrase "commence a mandamus action." The remainder of the section makes clear that such a mandamus action seeks a judgment that, first, orders compliance with the law and, second awards attorney fees. In this regard, the court embraces the sound reasoning of the partial dissent in State, ex rel. Fox, v. Cuyahoga Cty. Hosp. System (1988), 39 Ohio St.3d 108, 112, 529 N.E.2d 443, 446-447 (Douglas, J., concurring in part and dissenting in part).
Nonetheless, the court is mindful that the prevailing law is that attorney fees under the Public Records Law are discretionary. "The relators must demonstrate a sufficient benefit to the public to warrant the award of attorneys fees." Id. at 112, 529 N.E.2d at 447. "The court may also consider the reasonableness of respondents' refusal to comply." Id. The court will apply these standards in determining whether the Blade is entitled to attorney fees under the Public Records Law.
The award of fees under the Public Meetings Law is plainly discretionary. The court has been unable to locate published cases that identify the criteria that are to guide the court's decision regarding an award of fees under this statute. The criteria announced by the majority in Fox, however, seem to apply equally well. In Fox, the Supreme Court, having held that attorney fees under the Public Records Law were discretionary, announced standards to guide that discretion. Because of the similarity in the underlying purposes of the two statutes, and the considerations regarding their public significance, this court will guide its discretion in awarding attorney fees under the Public Meetings Law by the same criteria applicable to the Public Records Law.
By prevailing in this action, the Blade has conferred a significant benefit on the public. The untenable position that community action agencies, which are intimately involved in the public affairs of this community, are not accountable to the public has been directly challenged and squarely rejected. Because of this litigation, the business of these agencies will be open to the public and they will be appropriately accountable for the important activities they conduct. It is difficult to overstate the importance of that principle in a democratic society. The Blade's efforts in protecting and furthering that principle are of great credit to the Blade and of great benefit to the public.
As set forth above, the legal positions advanced by EOPA are insubstantial. They are not supported by any plausible reading of the statutes, nor by any logical argument from existing decisions. The memorandum filed in support of EOPA's motion for summary judgment did not contain a single persuasive argument supporting its contention that it was not subject to the Public Records and Public Meetings Laws.
The court does not relish awarding attorney fees against an agency that is funded by taxes paid by the citizens of the state of Ohio. The court is also mindful of the financial problems that EOPA has experienced. Nonetheless, EOPA surely was aware, or should have been informed, of the risk entailed in taking the tenuous legal positions it advanced in this case. Alas, those positions were poorly reasoned and legally unsupportable. EOPA cannot escape the consequences of its ill-advised position merely because it has other financial problems. The public purposes of the two laws at issue in this case would be undermined were the court to permit EOPA to escape those consequences.
Accordingly, the court will reluctantly award to the Blade its reasonable attorney fees and expenses, including costs of bringing suit, incurred in pursuing this action and in obtaining the relief it sought in the form of an injunction under the Public Meetings Law and a writ of mandamus under the Public Records Law. The plaintiff is directed to file with the court, no later than February 26, a motion for fees, with affidavits and other materials supporting the motion. The defendants shall file, no later than March 5, any response to the plaintiff's motion. These deadlines for filing will not be extended under any circumstance.
So ordered.