State ex rel. O'shea & Associates Co. v. Cuyahoga Metropolitan Housing Authority

Citations: 190 Ohio App. 3d 218; 941 N.E.2d 807Docket: No. 93275

Court: Ohio Court of Appeals; July 20, 2010; Ohio; State Appellate Court

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Mary Eileen Kilbane, Judge, addresses a public-records request made by O’Shea to the Cuyahoga Metropolitan Housing Authority (CMHA) under R.C. 149.43. The request sought: 1) copies of liability insurance contracts for the past 20 years, 2) minutes from meetings discussing liability insurance over the last 10 years, and 3) documents regarding instances of lead poisoning in CMHA dwellings over the last 15 years. The court previously considered O’Shea’s mandamus claim to compel the release of these records in opinions dated January 11, 2010, and May 25, 2010, ultimately granting O’Shea the right to attorney fees.

The court's composite journal entry clarifies that prior opinions were not final orders, hence not submitted to the Supreme Court of Ohio. It confirmed the remaining issue as O’Shea's attorney fees. CMHA initially sought to dismiss the complaint but the court converted this motion regarding item 1 to a summary judgment, allowing further evidentiary support. The court dismissed item 2 of the request, agreeing that O’Shea sought information rather than specific records, a distinction supported by R.C. 149.43. O’Shea's argument against CMHA's provision of documents for item 1 was not directly acknowledged, although CMHA claimed to have provided all required documents, rendering that request moot. The court recognized that O’Shea did not establish a legal obligation for CMHA to conduct research to identify requested records.

The responsibility lies with the requester to clearly identify the records they wish to inspect or copy. Notably, in previous cases such as State ex rel. Dillery v. Icsman, requests that are overly broad or vague do not meet the necessary standards for clarity, which ultimately led to the denial of relief. The case highlights that while requesting records is permissible, a public office cannot be tasked with searching for specific information unless the request is adequately defined. In contrast, O’Shea’s request for records related to lead poisoning instances was deemed sufficiently specific, unlike previous overbroad requests, warranting further consideration. The court has allowed O’Shea the opportunity to file a dispositive motion regarding this request, while CMHA can respond accordingly. Additionally, the court has converted CMHA's motion to dismiss into a motion for summary judgment concerning O’Shea's request for liability insurance contracts, allowing both parties to submit supplementary materials to clarify the status of insurance policies from 2006 through March 26, 2009.

Item 2, related to meeting minutes, has been dismissed. Item 3, regarding documents related to lead poisoning, is subject to a denial of the motion to dismiss. O’Shea is granted 20 days to submit a dispositive motion for item 3, with CMHA permitted to respond within 20 days thereafter. The court previously addressed O’Shea's and CMHA's motions for summary judgment regarding lead poisoning documents and liability insurance policies. O’Shea's motion for summary judgment was granted, ordering CMHA to provide all documents related to lead poisoning instances in CMHA-owned dwellings over the past 15 years, including specific resident questionnaires, while redacting social security numbers. CMHA's motion for summary judgment was denied as they did not adequately prove they provided the requested liability insurance policies for 2006 to March 26, 2009. An affidavit from CMHA's counsel indicated that policies were available at CMHA’s offices but did not confirm actual provision to O’Shea, leading to the order for compliance. The court also clarified that O’Shea's request in item 3 is not merely a request for information, rejecting CMHA's argument against it.

CMHA contends that documents related to incidents of lead paint involving children do not qualify as public records under R.C. 149.43. It cites State ex rel. McCleary v. Roberts, where the Ohio Supreme Court ruled that information collected from parents of children using city recreational facilities was not a public record as defined by R.C. 149.011(G). CMHA presented blank copies of a questionnaire and release form that collect personal information, including names, addresses, and social security numbers, which must be redacted upon release. However, CMHA's argument is rejected because the information in the forms does not encompass the extensive personal and medical details present in McCleary. Instead, the documents primarily identify individuals potentially exposed to lead, resembling the records at issue in State ex rel. Cincinnati Enquirer v. Daniels. In Daniels, the Supreme Court upheld the release of lead-contamination notices, emphasizing that such documents do not disclose personal identifiers or specific medical details. The questionnaire in CMHA's case primarily identifies locations where children are present, indicating potential lead exposure, while the release authorizes the sharing of medical records regarding a particular child.

The court concludes that the records of Cleveland’s Department of Public Health cannot be distinguished from those of Cincinnati’s Health Department, thus applying the controlling authority of Daniels, which mandates that CMHA release all disputed records to O’Shea. CMHA's claim that tenant documents are exempt under the Federal Privacy Act is rejected, as the Act applies only to federal agencies, and CMHA has not demonstrated it qualifies as such. Additionally, CMHA's assertion that documents related to lead poisoning are protected as trial-preparation records is also dismissed. Although CMHA's chief counsel, Audrey H. Davis, states that lead poisoning reports are handled as potential legal claims, the questionnaire's stated purpose is to identify sources of lead exposure, indicating multiple purposes. According to R.C. 149.43(A)(4), records must be specifically compiled for litigation to qualify for exemption, which the questionnaires do not meet. Thus, the court determines that these documents are not exempt and must be disclosed. CMHA's failure to comply with O’Shea’s request results in an award of $1,000 in statutory damages due to the delay exceeding ten days, as authorized under R.C. 149.43(C).

The opinion issued on May 25 addressed several key rulings regarding the case involving O’Shea and the Cleveland Metropolitan Housing Authority (CMHA). The court denied CMHA's motion for summary judgment, ordering it to provide O’Shea with copies of all liability insurance policies from 2006 to March 26, 2009. The court also granted O’Shea’s motion for summary judgment, mandating CMHA to supply documents related to lead poisoning incidents in its properties over the past 15 years, while requiring redaction of social security numbers.

O’Shea was awarded $1,000 in statutory damages and was authorized to file a motion for attorney fees, along with supporting documentation. O’Shea submitted a time entry report indicating 33.5 hours of work by attorney Michael J. O’Shea at a billing rate of $225 per hour, totaling $7,537.50. CMHA objected to this fee request, arguing that attorney fees should not be awarded to a pro se party. The court clarified that the action was brought on behalf of O’Shea Associates, Co. L.P.A., not Michael J. O’Shea personally, and emphasized that there is no legal precedent preventing the award of attorney fees under R.C. 149.43 for a law firm prosecuting a public records request.

The court noted that under subsection (C)(2)(b) of the Ohio Public Records Act, reasonable attorney fees are permitted when the court orders compliance with the Act. It acknowledged that CMHA had partially complied with the records request within a week of it being made but defended against releasing lead poisoning documents. The court found no evidence that CMHA failed to respond as required by R.C. 149.43(B) or that it promised to produce records within a specified timeframe and did not do so.

CMHA has not substantiated its claim for a reduction in O’Shea’s attorney fee request. According to R.C. 149.43(C)(2), awarded attorney fees are remedial rather than punitive, and should cover reasonable costs incurred in establishing the reasonableness of the fees and litigating entitlement to them. A court may reduce or deny attorney fees if it finds that a well-informed public office reasonably believed its conduct did not violate obligations under division (B) of the statute, or that such conduct served public policy. CMHA argued this case is unprecedented, but prior case law, particularly Daniels, offers relevant guidance regarding the release of lead-risk assessment records, which are essential for public health, especially for children. CMHA's assertion regarding privacy concerns lacks supporting authority and fails to demonstrate that withholding records aligns with public policy interests. Additionally, CMHA challenged specific activities on O’Shea’s time report, such as emailing a coworker and conducting legal research, but did not provide valid reasons to deem these non-compensable under R.C. 149.43(C). The court found MJO's hourly rate of $225 to be reasonable, consistent with precedents in similar public-records cases.

R.C. 149.43(C)(2)(c) allows for a reduction in attorney fees if a public office reasonably believed its actions did not violate the statute and served public policy. CMHA failed to satisfy either condition, resulting in the denial of its request to reduce O’Shea’s attorney fees, which are granted at $7,537.50. The court's judgment includes several directives: 1) CMHA must provide O’Shea with copies of liability insurance policies from 2006 to March 26, 2009; 2) the motion to dismiss regarding meeting minutes on liability insurance claims is granted; 3) CMHA is ordered to provide documents related to lead poisoning instances in its properties over the last 15 years, with social security numbers redacted; 4) O’Shea is awarded $1,000 in statutory damages; 5) O’Shea is awarded $7,537.50 in attorney fees. The clerk will notify the parties of this judgment, which is final. Blackmon and Jones, JJ. concur.