[Cite as State ex rel. DiFranco v. S. Euclid, 2012-Ohio-4399.]




                     Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA


                                JOURNAL ENTRY AND OPINION
                                         No. 97713

                              STATE OF OHIO, EX REL.
                                EMILIE DIFRANCO
                                                             RELATOR

                                                       vs.

               CITY OF SOUTH EUCLID, OHIO, ET AL.
                                                             RESPONDENTS


                                           JUDGMENT:
                                           WRIT DENIED


                                             Writ of Mandamus
                                             Motion No. 450742
                                             Order No. 458310

            RELEASED DATE:                  September 26, 2012
                                     -i-




ATTORNEYS FOR RELATOR

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

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


ATTORNEY FOR RESPONDENTS

Michael P. Lograsso
Law Director, South Euclid
1349 South Green Road
South Euclid, Ohio 44121
PATRICIA ANN BLACKMON, A.J.:

      {¶1} On December 16, 2011, the relator, Emilie DiFranco, commenced this public

records mandamus action against the respondents, the city of South Euclid and Keith A.

Benjamin, Director of Community Services and Clerk of Council for the city of South

Euclid, the respondents.   On October 13, 2011, DiFranco tendered a public records

request to the respondents, through certified mail, requesting copies of the following

records:

      1. All records that relate to the funding of Ordinance 31-08, including
      showing when the loan was paid, whether it was paid back, and any records
      that relate to any payments or expenditures made from that Ordinance.

      2. Copies of all communications concerning funding of the first Playground
      of Possibilities.

      3. Copies of all communications concerning funding of the second
      Playground of Possibilities after the fire.

      4. All paper and electronic communications, reports, financial document
      (ledgers, spreadsheets, check registers and similar compilations) and
      calculations, memoranda, and other documents that address in any manner
      the fire that occurred at the Playground of Possibilities.

      5. All claims and other communications with the insurance carrier and
      insurance agent relating to the Playground of Possibilities.

      6. Copies of all checks received from the insurance company relative to the
      Playground of Possibilities.

      7. All financial documents (ledgers, spreadsheets, check registers and similar
       compilations) relating to the reconstruction of the Playground of Possibilities
       (showing all receipts and expenditures) after the fire.
       8. A financial documents (ledgers, spreadsheets, check registers and similar
       compilations) relating to the reconstruction of the Playground of Possibilities
       (showing all receipts and expenditures) after the fire.
       9. All communications made to city employees concerning work on the
       Playground of Possibilities.

       {¶2} The certified letter, which requested the production of public records, was

received by the respondents on October 14, 2011.         However, until the filing of the

complaint for a writ of mandamus, no public records were provided to DiFranco. On

December 20, 2011, the requested public records were assembled and transmitted to

DiFranco by email communications. On December 27, 2011, the respondents filed their

joint answer and joint motion to dismiss the complaint for a writ of mandamus. On

January 13, 2012, DiFranco filed a brief in opposition to the motion to dismiss through

which she stated that:

       Subsequent to the commencement of this action, Respondents have provided
       some records to Ms. DiFranco, but due to the volume of such documents
       (estimated to be nearly 800 pages) and the lack of breakdown and
       categorization of such documents, Ms. DiFranco is unable, at the present
       time, to acknowledge whether such records constitutes a full or a partial
       production in response to the Public Records Request Letter.

       {¶3} On January 24, 2012, this court sua sponte converted the respondents’

motion to dismiss into a motion for summary judgment pursuant to the “reasonable

opportunity” provision of Civ.R. 12(B)(6).

       {¶4} On February 8, 2012, DiFranco filed the affidavit of Brian Johnson, a

Certified Public Account and Certified Internal Auditor, which provided that numerous

requested public records, in his expert opinion, were not provided to DiFranco.
      {¶5} On July 3, 2012, this court addressed the affidavit of Brian Johnson and sua

sponte ordered the following:

      Sua sponte, the respondents through their motion to dismiss of December 27,
      2011, which was converted into a motion for summary judgment pursuant to
      the “reasonable opportunity” provision of Civ.R. 12(B)(6), and the
      respondents brief of March 16, 2012, have stated that the relator’s request
      for public records is moot due to the delivery of all records. See affidavits
      of Keith Benjamin, Director of Community Services and Clerk of Council
      for the City of South Euclid, Ohio, which provides that “he fulfilled the
      requests of [relator] on December 20, 2011 at 4:23 p.m. by sending all of the
      requested records to her by email transmission on that date and time.”

      However, the affidavit of Brian Johnson, a Certified Public Accountant and
      Certified Internal Auditor, as filed by the relator on February 8, 2012,
      provides that in his expert opinion, numerous records that were requested by
      the relator were not provided as required by R.C. 149.43. Accordingly, the
      respondents are ordered to address the affidavit of Brian Johnson and certify
      to this court the following: (1) whether such records exist; (2) whether such
      records have been delivered to the relator; and (3) why such records, if they
      exist, have not been delivered to the relator. Specifically, the respondents
      shall individually address each claimed “missing” record as contained within
      the affidavit of Brian Johnson. The respondents shall address the following:

      (1) ¶ 6 - any accounting system printouts such as journals, ledgers, or fund
      balance reports from accounting software that relate to funding of Ordinance
      31-08;

      (2) ¶ 7 - cash journal, receipt ledger, and/or appropriation ledger;

      (3) ¶ 8 - records with regard to $89,322.37 of income received from
      Playground of Possibilities;
      (4) ¶ 8 - copy of check number 5236 (7/24/08 Leather Associates), check
      number 5273 (7/31/08 Leather Associates), and check number 5477 (8/21/10
      Office Max);

      (5) ¶ 9 - purchase order, invoice and copy of check number 5849 (10/3/08
      Key Bank), check number 5931 (10/17/08 Mars Electric), check number
      6045 (10/24/08 Key Bank), check number 6099 (10/31/08 Denny Lumber),
      check number 6109 (10/31/08 Home Depot), check number 6654 (1/22/09
      Fast Signs), check number 8995 (11/4/09 Sams Club), check number 9048
      (11/9/09 Petty Cash), check number 9123 (11/20/09 Key Bank), and check
      number 10419 (5/14/10 Fast Signs);

      (6) ¶ 10 - all paper and electronic communications, reports, ledgers,
      spreadsheets, check registers, calculations, and memoranda that address the
      fire that occurred at the Playground of Possibilities;

      (7) ¶ 12 - ledgers, spreadsheets, check registers relating to the reconstruction
      of the Playground of Possibilities; and

      (8) ¶ 14 - copy of $400 restitution receipt dated 8/18/11, check number
      13837 (Northcoast Signworks), and invoice for signage obtained from
      Northcoast Signworks.

      The respondents are ordered to certify to this court what records, based upon
      the affidavit of Brian Johnson, remain outstanding, have been delivered to
      the relator, or are exempt from disclosure pursuant to R.C. 149.43. The
      certification shall be submitted to this court no later than July 23, 2012. No
      extension of time shall be granted to the respondents in which to complete
      the required certification. Should the respondents claim any exemption
      from disclosure, the relator is granted ten days, from the date of the filing of
      the respondents certification, to file a brief that addresses any claimed
      exemption.

      {¶6} On July 20, 2012, the respondents filed a “certification of responses” that

addressed the affidavit of Brian Johnson and the purported missing public records. The

respondents, through the certification, established that all requested public records,

including those referenced by Brian Johnson in his sworn affidavit, had been provided to

DiFranco.

      {¶7} On August 2, 2012, DiFranco filed her response to the “certification” that in

essence admitted that all requested records had been provided by the respondents.

However, DiFranco argues that although all requested public records have been provided,

the issues of statutory damages and attorney fees remain pending for consideration by this
court. DiFranco argues that she has established the necessary grounds for both maximum

statutory damages and attorney fees pursuant to R.C. 149.43(C). In support of her claim

for statutory damages and attorney fees, DiFranco states in her complaint for a writ of

mandamus that:

       The issuance of a writ of mandamus will serve the public interest and
       provide a public benefit by, inter alia, encouraging and promoting
       compliance in the future by public officials with the mandates of the Public
       Records Act, as well as court decisions thereon.

       Furthermore, the issuance of a writ of mandamus will serve the public
       interest and provide a public benefit by, inter alia, exposing the financial
       operations of the City of South Euclid to public exposure.

       Furthermore, the issuance of a writ of mandamus will serve the public
       interest and provide a public benefit by, inter alia, subjecting the
       organization, functions, policies, decision, operations, or other activities of
       the City of South Euclid to public exposure, review and criticism.

       {¶8} The Supreme Court of Ohio has recently established that the award of

statutory damages and attorney fees is dependent upon demonstrating that the release of

the requested public records provides a public benefit that is greater than the benefit that

enures to the requester. State ex rel. Dawson v. Bloom-Carroll Local School Dist., 131

Ohio St.3d 10, 2011-Ohio-6009, 959 N.E.2d 524, ¶ 34; State ex rel. Beacon Journal

Publishing Co. v. Akron, 104 Ohio St.3d 399, 2004-Ohio-6557, 819 N.E.2d 1087; compare

State ex rel. Data Trace Information Servs., L.L.C. v. Cuyahoga Cty. Fiscal Officer, 131

Ohio St.3d 255, 2012-Ohio-753, 963 N.E.2d 1288, ¶ 69 (failure to establish right to

statutory damages and attorney fees throughout the case resulted in waiver).

       {¶9} This court, in State ex rel. Petranek v. Cleveland, 8th Dist. No. 98026,
2012-Ohio-2396, held that encouraging and promoting compliance with the Ohio Public

Records Act and by subjecting the public records keeper to public exposure, review, and

criticism does not establish sufficient public benefit to allow for the award of statutory

damages and attorney fees.

       In her complaint, [relator] 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 [respondent] to public exposure,
       review, and criticism. [Footnote omitted.] 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. (Emphasis added.) Id. at ¶ 8.

       {¶10} As in Petranek, we find that DiFranco has failed to establish any viable

public benefit that would permit this court to award statutory damages and/or attorney

fees. The benefit claimed by DiFranco is simply an argument that the Ohio Public

Records Act be enforced against the respondents. Thus, we find that DiFranco is not

entitled to an award of statutory damages or attorney fees.

       {¶11}    Accordingly, we grant the respondents’ joint motion for summary

judgment. Respondents to pay costs. This court directs the 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).

       {¶12} Writ denied.



PATRICIA ANN BLACKMON, ADMINISTRATIVE JUDGE

SEAN C. GALLAGHER, J., and
EILEEN A. GALLAGHER, J., CONCUR
