[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Pietrangelo v. Avon Lake, Slip Opinion No. 2016-Ohio-2974.]




                                           NOTICE
      This slip opinion is subject to formal revision before it is published in an
      advance sheet of the Ohio Official Reports. Readers are requested to
      promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
      South Front Street, Columbus, Ohio 43215, of any typographical or other
      formal errors in the opinion, in order that corrections may be made before
      the opinion is published.



                          SLIP OPINION NO. 2016-OHIO-2974
    THE STATE OF OHIO EX REL. PIETRANGELO, APPELLANT, v. THE CITY OF
                            AVON LAKE ET AL., APPELLEES.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
      may be cited as State ex rel. Pietrangelo v. Avon Lake, Slip Opinion
                                   No. 2016-Ohio-2974.]
Public records—R.C. 149.43(A)(1)(v)—Exception from disclosure for records
        subject to attorney-client privilege—Dates, hours, and rates of legal
        services that are summarized in professional-fee-summary portions of
        itemized attorney-fee billing statements are inextricably intertwined with
        privileged narrative portions of the statements describing the services
        performed—Court of appeals’ judgment affirmed.
      (No. 2015-0495—Submitted January 5, 2016—Decided May 17, 2016.)
     APPEAL from the Court of Appeals for Lorain County, No. 14CA010571.
                                    _______________________
                             SUPREME COURT OF OHIO




       Per Curiam.
       {¶ 1} We affirm the judgment of the Ninth District Court of Appeals
granting in part and denying in part a petition for a writ of mandamus filed by
relator-appellant, James E. Pietrangelo II, an attorney acting pro se.
       {¶ 2} Pietrangelo made a public-records request of appellees, the city of
Avon Lake and its law director, for invoices from a law firm for services rendered
in connection with pending litigation between Pietrangelo and the city. The city
provided him with copies of invoices that set forth the name of the law firm, the
general matter for which services were provided, the date of the invoice, the total
fees billed for that period, and itemized expenses and disbursements. Invoking the
attorney-client privilege and attorney-work-product doctrine, the city redacted


       narrative descriptions of particular legal services rendered, the exact
       dates on which such services were rendered, the particular attorney
       rendering each service, the time spent by each particular attorney on
       a particular day, the billing rate of each particular attorney, the total
       number of hours billed by each particular attorney during the period
       covered by the invoice, and the total fees attributable to each
       particular attorney for the period covered by the invoice.


       {¶ 3} Pietrangelo filed a petition for a writ of mandamus in the Ninth
District Court of Appeals, requesting an order compelling the city to provide
unredacted invoices and awarding statutory damages and attorney fees in the event
that he retained counsel.
       {¶ 4} Pietrangelo filed a motion to strike portions of the city’s answer and
for sanctions. The court denied the motion in a one-sentence entry. Pietrangelo
and the city filed cross-motions for summary judgment. Unable to determine from
the evidence whether either party was entitled to judgment as a matter of law, the




                                          2
                                January Term, 2016




court ordered the city to file unredacted copies of the attorney-fee billing statements
under seal.
        {¶ 5} Following an in camera review, the appellate court determined that
the city had disclosed the nonexempt portions of the records with the exception of
the portion of each invoice entitled “Professional Fee Summary.” Concluding that
this portion—describing the hours, rate, and money charged for the services—was
not exempt under R.C. 149.43, the court granted a writ of mandamus compelling
the city to provide Pietrangelo with copies of the relevant billing statements with
the professional-fee summary unredacted. The court denied Pietrangelo’s petition
in all other respects.
        {¶ 6} Appellees notified the court on March 19, 2015, that Pietrangelo had
been provided with copies of the relevant invoices with the information contained
in the professional-fee summary.
        {¶ 7} This matter is before the court on Pietrangelo’s appeal as of right.
        {¶ 8} “Mandamus is the appropriate remedy to compel compliance with
R.C. 149.43, Ohio’s Public Records Act.” State ex rel. Physicians Commt. for
Responsible Medicine v. Ohio State Univ. Bd. of Trustees, 108 Ohio St.3d 288,
2006-Ohio-903, 843 N.E.2d 174, ¶ 6; R.C. 149.43(C)(1). This court construes the
Public Records Act liberally in favor of broad access and resolves any doubt in
favor of disclosure of public records. State ex rel. Rocker v. Guernsey Cty. Sheriff’s
Office, 126 Ohio St.3d 224, 2010-Ohio-3288, 932 N.E.2d 327, ¶ 6.
        {¶ 9} R.C. 149.43(A)(1)(v) excludes “[r]ecords the release of which is
prohibited by state or federal law” from the definition of “public record.” Any
exception to disclosure under the Public Records Act is strictly construed against
the public-records custodian, and the custodian has the burden to establish the
applicability of an exception. State ex rel. Cincinnati Enquirer v. Jones-Kelley, 118
Ohio St.3d 81, 2008-Ohio-1770, 886 N.E.2d 206, paragraph two of the syllabus.




                                          3
                              SUPREME COURT OF OHIO




       {¶ 10} This court has held that the narrative portions of itemized attorney-
fee billing statements containing descriptions of legal services performed by
counsel are protected by the attorney-client privilege. State ex rel. Dawson v.
Bloom-Carroll Local School Dist., 131 Ohio St.3d 10, 2011-Ohio-6009, 959
N.E.2d 524, ¶ 28-29; see also State ex rel. McCaffrey v. Mahoning Cty.
Prosecutor’s Office, 133 Ohio St.3d 139, 2012-Ohio-4246, 976 N.E.2d 877, ¶ 36.
Other information on the billing statements—e.g., the general title of the matter
being handled, the dates the services were performed, and the hours, rate, and
money charged for the services—is considered nonexempt and must be disclosed.
State ex rel. Anderson v. Vermilion, 134 Ohio St.3d 120, 2012-Ohio-5320, 980
N.E.2d 975, ¶ 15.
       {¶ 11} Pietrangelo contends that the court of appeals erred in denying him
mandamus relief that would require appellees to release all the dates of legal
services performed and the hours and rates of services, not just the description of
that information provided in the professional-fee summary on the invoice.
Pietrangelo argues that he is entitled to this information based on Anderson, in
which this court stated: “Under the Public Records Act, insofar as these itemized
attorney-billing statements contain nonexempt information, e.g., the general title of
the matter being handled, the dates the services were performed, and the hours, rate,
and money charged for the services, they should have been disclosed to Anderson.”
Id.
       {¶ 12} In Anderson, the relator, a former mayor of the city of Vermilion,
requested itemized billing statements for legal services rendered to the city at the
beginning of the new mayor’s term in office. Id. at ¶ 2-3. The city denied the entire
request on the basis that the requested information was exempt from disclosure
under the attorney-client privilege. Id. at ¶ 4.
       {¶ 13} Anderson filed a petition in the court of appeals for a writ of
mandamus.     The court of appeals denied the writ.       This court reversed and




                                           4
                                January Term, 2016




remanded the case for further proceedings, id. at ¶ 27, stating that there may be
nonexempt information on the itemized billing statements, “e.g., the general title of
the matter being handled, the dates the services were performed, and the hours, rate,
and money charged for the services,” that should have been disclosed to the relator,
id. at ¶ 15. If so, the relator was entitled to that portion of the billing statements
after redaction of the narrative portions that were covered by the attorney-client
privilege. Id. at ¶ 23.
        {¶ 14} Appellees in this case distinguish Anderson and rely on Dawson, 131
Ohio St.3d 10, 2011-Ohio-6009, 959 N.E.2d 524, in which the relator sought billing
statements for legal services to the school district for pending litigation involving
the relator and her children. Id. at ¶ 1. The district provided summaries of the
invoices noting the attorney’s name, invoice total, and the matter involved but
withheld the actual invoices because they contained what it considered to be
confidential information. Id. at ¶ 2.
        {¶ 15} Dawson filed a petition for a writ of mandamus seeking release of
the actual itemized statements. This court concluded that the school district
properly responded to the relator’s request by providing her with summaries of the
invoices. Id. at ¶ 29. We denied the writ, explaining that “[t]he withheld records
[were] either covered by the attorney-client privilege or so inextricably intertwined
with the privileged materials as to also be exempt from disclosure.” Id.
        {¶ 16} Appellees maintain that the facts in this case resemble Dawson. We
agree. Like Dawson, the records that Pietrangelo seeks relate to the pending
litigation between the parties. If disclosed, Pietrangelo may acquire information
that would be useful in his litigation strategy against the city, whereas in Anderson,
any harm from disclosure of attorney-client communication was remote or
speculative.
        {¶ 17} Appellees in this case have disclosed all the nonexempt portions of
the records, including the information summarized within the professional-fee




                                          5
                               SUPREME COURT OF OHIO




summary. To the extent that Pietrangelo requests the dates, hours, and rates not
identified in the professional-fee summary, they are inextricably intertwined with
the narratives of services that are privileged materials. Such information is exempt
from disclosure. Dawson, 131 Ohio St.3d 10, 2011-Ohio-6009, 959 N.E.2d 524, at
¶ 29.
          {¶ 18} Pietrangelo also contends that the court of appeals erred in denying
him statutory damages of $1,000. We agree with the court of appeals that “a large
portion of the billing statements at issue in this case w[as] exempt from disclosure
and, given the interplay between Dawson and Anderson, a well-informed public
office could reasonably have believed that the nonexempt portion of the billing
statements could be withheld from disclosure. Anderson at ¶ 26.” 9th Dist. Lorain
No. 14CA010571, 4-5 (Mar. 11, 2015). The appellate court did not abuse its
discretion in denying Pietrangelo’s request for statutory damages.           See R.C.
149.43(C); see also State ex rel. Doe v. Smith, 123 Ohio St.3d 44, 2009-Ohio-4149,
914 N.E.2d 159, ¶ 37 and 40.
          {¶ 19} Finally, Pietrangelo contends that the appellate court erred when it
denied his motion seeking sanctions and to strike portions of appellees’ answer as
frivolous. We do not agree. Pietrangelo failed to establish that he was entitled to
the relief requested under Civ.R. 11 and 12(F). The court of appeals did not abuse
its discretion when it denied his motion. State ex rel. Dreamer v. Mason, 115 Ohio
St.3d 190, 2007-Ohio-4789, 874 N.E.2d 510, ¶ 18.
          {¶ 20} Pietrangelo failed to demonstrate that he is entitled to extraordinary
relief in mandamus. We affirm the judgment of the court of appeals.
                                                                  Judgment affirmed.
          O’CONNOR, C.J., and PFEIFER, O’DONNELL, LANZINGER, and O’NEILL, JJ.,
concur.
          KENNEDY, J., concurs in part and dissents in part with an opinion that
FRENCH, J., joins.




                                            6
                                January Term, 2016




                               _________________
       KENNEDY, J., concurring in part and dissenting in part.
       {¶ 21} Respectfully, I concur in part and dissent in part. I agree with the
majority that the Ninth District Court of Appeals did not err in denying appellant’s,
James E. Pietrangelo II’s motion seeking sanctions and motion to strike portions of
the answer of appellees, the city of Avon Lake and its law director. I dissent,
however, from the majority’s decision affirming the Ninth District’s determination
as to the exempt portion of the attorney-fee billing statements and the denial of
statutory damages. Because the appellate court failed to order the disclosure of all
nonexempt portions of the public records sought pursuant to R.C. 149.43(B)(1), I
would reverse the decision of the appellate court, order the redaction of only the
narrative services column of each statement, and order the release of the remaining
portions of the statements. Moreover, because Ohio law is settled that only the
narrative services portion of an attorney-fee billing statement is privileged and
therefore exempt pursuant to R.C. 149.43(B)(1), appellees failed to demonstrate
that their redaction of the portions of the public record other than the narrative
services column was in compliance with and served the underlying public policy of
R.C. 149.43(B). Therefore, I would award statutory damages pursuant to R.C.
149.43(C).
                                       Facts
                     Itemized Attorney-Fee Billing Statements
       {¶ 22} In this case, a review of the sealed records reveals that the itemized
attorney-fee billing statements each contain numerous pages. Following the cover
page of each statement is a summary-invoice page (“summary”), which is the
equivalent of a billing payment stub. The summary contains the following: a header
setting forth the name, address, and contact information of the law firm representing
appellees (“header”); the name and address of appellee Abraham Lieberman, the




                                         7
                            SUPREME COURT OF OHIO




Avon Lake law director; the invoice date and number (“billing designation”); and
boilerplate payment instructions.
       {¶ 23} Itemization begins on the third page of each statement, continues on
subsequent pages, and contains the following: the header and billing designation,
the date “legal services [were] rendered as of,” and a numerical client and matter
designation. Each attorney-fee billing statement is next divided into four separate
categories in column form: date, name, services, and hours. Each statement
concludes with the total number of hours invoiced, a professional-fee summary,
disbursements and expenses (if any), and a total invoice amount.
                         Records Provided to Appellant
       {¶ 24} On March 19, 2014, in response to appellant’s public-records
request, appellees provided him with a redacted copy of each itemized attorney-fee
billing statement. Appellees redacted all information except the header and billing
designation, the date “legal services [were] rendered as of,” the numerical client
and matter designation, the amount of total fees, the disbursements and expenses,
and the total invoice amount.
                                    Analysis
                  Mandamus and the Ohio Public Records Act
       {¶ 25} “Mandamus is the appropriate remedy to compel compliance
with R.C. 149.43, Ohio’s Public Records Act.” State ex rel. Physicians Commt. for
Responsible Medicine v. Ohio State Univ. Bd. of Trustees, 108 Ohio St.3d 288,
2006-Ohio-903, 843 N.E.2d 174, ¶ 6. “We construe the Public Records Act
liberally in favor of broad access and resolve any doubt in favor of disclosure of
public records.” State ex rel. Rocker v. Guernsey Cty. Sheriff’s Office, 126 Ohio
St.3d 224, 2010-Ohio-3288, 932 N.E.2d 327, ¶ 6.
       {¶ 26} For good reason, “[e]xceptions to disclosure under the Public
Records Act, R.C. 149.43, are strictly construed against the public-records
custodian, and the custodian has the burden to establish the applicability of an




                                        8
                                January Term, 2016




exception.” State ex. rel. Cincinnati Enquirer v. Jones-Kelley, 118 Ohio St.3d 81,
2008-Ohio-1770, 886 N.E.2d 206, paragraph two of the syllabus. “A custodian
does not meet this burden if it has not proven that the requested records fall squarely
within the exception.” Id.
                        Attorney-Client Privilege Generally
       {¶ 27} The Ohio General Assembly has mandated that “[i]f a public record
contains information that is exempt * * *, the public office * * * shall make
available all of the information within the public record that is not exempt.” R.C.
149.43(B)(1). The definition of “public record” for purposes of the Public Records
Act excludes “[r]ecords the release of which is prohibited by state or federal law.”
R.C. 149.43(A)(1)(v).
       {¶ 28} We have long recognized that state law prohibits the release of the
records of communications protected by the attorney-client privilege, State ex rel.
Besser v. Ohio State Univ., 87 Ohio St.3d 535, 542, 721 N.E.2d 1044 (2000), and
that portions of an itemized attorney-fee billing statement are “covered by the
attorney-client privilege,” State ex rel. Taxpayers Coalition v. Lakewood, 86 Ohio
St.3d 385, 392, 715 N.E.2d 179 (1999).
       {¶ 29} Relying on appellees’ argument, the majority seemingly concludes
that the relevant distinction between State ex rel. Dawson v. Bloom-Carroll Local
School Dist., 131 Ohio St.3d 10, 2011-Ohio-6009, 959 N.E.2d 524, and State ex
rel. Anderson v. Vermilion, 134 Ohio St.3d 120, 2012-Ohio-5320, 980 N.E.2d 975,
regarding what information is subject to disclosure under the Public Records Act is
whether litigation is pending between the requestor and the government entity.
Relying on this distinction, the majority then concludes that all “nonexempt
portions of the records” that appellant requested in this case have been disclosed.
Majority opinion at ¶ 17. I disagree.
       {¶ 30} Whether a public-records requestor and a government entity are
engaged in litigation is irrelevant to the question whether information in an itemized




                                          9
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attorney-fee billing statement is privileged and exempt from disclosure. Instead,
our case law mandates that the proper focus is on the information sought and
whether that information is privileged.
       {¶ 31} The relevant distinction between Dawson and Anderson is that in
Dawson, the school board, in lieu of releasing the itemized attorney-fee billing
statements, reduced the nonexempt information to a summary. Dawson at ¶ 2.
After independent review of the summary and the itemized attorney-fee billing
statements, we agreed with the school board that “[n]o further access to the detailed
narratives * * * was warranted.” Id. at ¶ 29. In Anderson, the city of Vermilion
failed to provide Anderson with any alternative record and denied his public-
records request for the itemized attorney-fee billing statement on the basis that the
record was exempt from disclosure. Id. at ¶ 4.
        Only the Services Column is Privileged and Subject To Redaction
       {¶ 32} We have recognized that “the narrative portions of itemized
attorney-billing statements containing descriptions of legal services performed by
counsel for a client are protected by the attorney-client privilege.” Anderson, 134
Ohio St.3d 120, 2012-Ohio-5320, 980 N.E.2d 975, at ¶ 13, citing Dawson, 131
Ohio St.3d 10, 2011-Ohio-6009, 959 N.E.2d 524, at ¶ 28-29, and State ex rel.
McCaffrey v. Mahoning Cty. Prosecutor’s Office, 133 Ohio St.3d 139, 2012-Ohio-
4246, 976 N.E.2d 877, ¶ 36. We have instructed appellate courts to conduct an in
camera review to determine what information in an itemized attorney-fee billing
statement is protected by the attorney-client privilege. Id. at ¶ 16. Thereafter,
“ ‘[i]f the court finds that these records contain excepted information, this
information must be redacted and any remaining information must be released.’ ”
Id. (emphasis sic), quoting State ex rel. Master v. Cleveland, 75 Ohio St.3d 23, 31,
661 N.E.2d 180 (1996), quoting State ex rel. Natl. Broadcasting Co., Inc. v.
Cleveland, 38 Ohio St.3d 79, 526 N.E.2d 786 (1988), paragraph four of the
syllabus.




                                          10
                                  January Term, 2016




          {¶ 33} After appellant filed his mandamus action, the Ninth District Court
of Appeals conducted an in camera review of the itemized attorney-fee billing
statements filed under seal. 9th Dist. Lorain No. 14CA01057, 3 (Mar. 11, 2015).
Thereafter, the appellate court ordered the additional disclosure of the professional-
fee summary of each statement reflecting the total number of hours each attorney
billed in the matter, the attorneys’ billing rates, and the amounts billed. Id. The
appellate court then concluded that since the “billing information that correlates to
the narratives”—i.e., the date, attorney name, description, and number of hours for
each service—“is summarized within the ‘Professional Fee Summary,’ * * * those
items need not be disclosed.” Id. at 3-4. In affirming the decision of the appellate
court, this court, without explanation, creates a redundancy exception that is beyond
the scope of the public policy established by the General Assembly and undermines
our precedent.
          {¶ 34} The General Assembly is the ultimate arbiter of public policy
relevant to our public-records laws. Kish v. Akron, 109 Ohio St.3d 162, 2006-Ohio-
1244, 846 N.E.2d 811, ¶ 44. To that end, the legislature has decided that “all of the
information within the public record that is not exempt” must be disclosed.
(Emphasis added.) R.C. 149.43(B)(1). The General Assembly has not authorized
any public entity to make a value judgment on the information contained in the
public record sought and withhold nonexempt information that in its view is
redundant.      Nor has the General Assembly authorized the third branch of
government to order that nonexempt information it deems redundant be withheld.
And until now, we have never authorized the exercise of such raw judicial power
either.
          {¶ 35} In the past, we have “construe[d] the Public Records Act liberally in
favor of broad access and resolve[d] any doubt in favor of disclosure of public
records.” Rocker, 126 Ohio St.3d 224, 2010-Ohio-3288, 932 N.E.2d 327, at ¶ 6.
Exceptions to disclosure have been “strictly construed against the public-records




                                           11
                             SUPREME COURT OF OHIO




custodian.” Cincinnati Enquirer, 118 Ohio St.3d 81, 2008-Ohio-1770, 886 N.E.2d
206, at paragraph two of the syllabus. Even if the appellate court’s determination
that redundant material is exempt makes good sense, “[a] judicially created ‘good
sense’ rule” cannot override our precedent that only the General Assembly
determines public policy as to public-records access. Id. at ¶ 44, citing State ex rel.
WBNS TV, Inc. v. Dues, 101 Ohio St.3d 406, 2004-Ohio-1497, 805 N.E.2d 1116,
¶ 36-37. As we noted in Anderson in rejecting the city’s argument that the
remainder of a redacted document would be “meaningless,” there is no “exception
to the explicit duty in R.C. 149.43(B)(1) for public offices to make available all
information that is not exempt after redacting the information that is exempt.” 134
Ohio St.3d 120, 2012-Ohio-5320, 980 N.E.2d 975, at ¶ 19.
       {¶ 36} Moreover, the majority relies on Dawson in support of its conclusion
that “the dates, hours, and rates not identified in the professional-fee summary” that
appellant has requested “are inextricably intertwined with the narratives of services
that are privileged materials.     Such information is exempt from disclosure.”
Majority opinion at ¶ 17. However, there is little discussion of how the itemized
attorney-fee billing statements in Dawson were constituted.           The majority’s
extrapolation of our analysis in Dawson to the public records at issue today is
disingenuous.
       {¶ 37} The itemized portions of the attorney-fee billing statements
requested by appellant are not oriented in paragraph form. The date of service, the
name of the attorney providing each service, and the hours billed are indicated in
separate, independent columns and are not intertwined with the narrative services
column. As explained above, the records filed under seal establish four separate,
independent columns within the itemized portion of each attorney-fee billing
statement. The narrative services column is readily capable of redaction without
disturbing the other, nonexempt information.




                                          12
                                January Term, 2016




       {¶ 38} Because appellees failed to meet their burden to prove that all “the
requested records fall squarely within the exception,” Cincinnati Enquirer, 118
Ohio St.3d 81, 2008-Ohio-1770, 886 N.E.2d 206, at paragraph two of the syllabus,
I would order the redaction of only the narrative services column in each itemized
attorney-fee billing statement and order all remaining portions released.
                            Award of Statutory Damages
       {¶ 39} In affirming the appellate court’s denial of statutory damages, this
court adopted the holding of the appellate court that “ ‘a large portion of the billing
statements at issue in this case w[as] exempt from disclosure and, given the
interplay between Dawson and Anderson, a well-informed public office could
reasonably have believed that the nonexempt portion of the billing statements could
be withheld from disclosure.’ ” (Brackets sic.) Majority opinion at ¶ 18, quoting
9th Dist. Lorain No. 14CA010571, at 4-5. I disagree.
       {¶ 40} As explained above, only the narrative services column of each
itemized attorney-fee billing statement is subject to redaction.
       {¶ 41} Moreover, there is no “interplay” between Dawson and Anderson.
In Dawson, this court recognized the existence of the law regarding the
confidentiality of communications shared within the attorney-client relationship
and then examined the exemption contained in R.C. 149.43(A)(1)(v). Dawson, 131
Ohio St.3d 10, 2011-Ohio-6009, 959 N.E.2d 524, at ¶ 26-27. After considering
Ohio and federal appellate decisions stating that the attorney-client privilege
extends to the narrative portions of an itemized attorney-fee billing statement
describing the services performed, we held that the school board’s decision to
provide a summary of the information in lieu of the itemized attorney-fee statement
was proper. Id. at ¶ 28-29.
       {¶ 42} One year later, in Anderson, we cited Dawson as holding that “the
narrative portions of itemized attorney-billing statements containing descriptions
of legal services performed by counsel for a client are protected by the attorney-




                                          13
                              SUPREME COURT OF OHIO




client privilege.” Anderson, 134 Ohio St.3d 120, 2012-Ohio-5320, 980 N.E.2d 975,
at ¶ 13, citing Dawson at ¶ 28-29 and McCaffrey, 133 Ohio St.3d 139, 2012-Ohio-
4246, 976 N.E.2d 877, at ¶ 36. We found, however, that there was a “crucial fact”
that distinguished Anderson from Dawson. Id. at ¶ 23. Specifically, we held that
the city of Vermilion had denied Anderson’s request and did not provide an
alternate record, id., whereas in Dawson, the claim for the itemized attorney-fee
billing statement was moot because the school board had already provided that
information in a summary, Dawson at ¶ 29.
       {¶ 43} The General Assembly has mandated that a person aggrieved by the
failure of a public office to provide a public record may bring a mandamus action
to obtain the record. R.C. 149.43(C)(1). If the requestor makes the request in
writing and the request fairly describes the record or records sought, then the
requestor “shall be entitled to recover” statutory damages. Id.
       {¶ 44} A court may reduce or deny an award of statutory damages if two
findings are made. Id. First, the court must find that based on “statutory law and
case law as it existed at the time * * * a well-informed public office * * * reasonably
would believe that [its] conduct * * * did not constitute a failure to comply with
[R.C. 149.43(B)].” R.C. 149.43(C)(1)(a). Second, the court must find that “a well-
informed public office * * * would believe that the conduct * * * would serve the
public policy that underlies the authority that is asserted as permitting that conduct.”
R.C. 149(C)(1)(b).
        {¶ 45} In affirming the appellate court’s denial of statutory damages and
attorney fees in Anderson, we held that “a well-informed public office could have
reasonably believed, based on our decision in Dawson * * *, that the nonexempt
portions of the attorney-billing statements could be withheld from disclosure.” 134
Ohio St.3d 120, 2012-Ohio-5320, 980 N.E.2d 975, at ¶ 26. However, after
Anderson, the issue of what information is privileged and thereby exempt from
disclosure in an attorney-fee billing statement became settled law. Subsequently,




                                          14
                                January Term, 2016




no well-informed public office could reasonably believe that any portion of an
attorney-fee billing statement, other than the narrative description of the legal
services performed, is subject to redaction.
       {¶ 46} As the finding required by R.C. 149.43(C)(1)(a) has not been made,
the appellate court was without authority to deny appellant an award of statutory
damages. Therefore, as appellees impermissibly redacted information in excess of
the narrative services column of each itemized attorney-fee billing statement, I
would reverse the appellate court and award appellant statutory damages pursuant
to R.C. 149.43(C).
       {¶ 47} For all the foregoing reasons, I would affirm the denial of the motion
for sanctions and the motion to strike and would reverse the appellate court’s
exemption determination, order the redaction of the narrative services column of
each itemized attorney-fee billing statement, order the release of all remaining
information contained in the itemized attorney-fee billing statements, and award
statutory damages.
       {¶ 48} Accordingly, I respectfully concur in part and dissent in part.
       FRENCH, J., concurs in the foregoing opinion.
                               _________________
       James E. Pietrangelo II, pro se.
       Abraham Lieberman, Avon Lake Law Director, for appellees.
                               _________________




                                          15
