  [Cite as State ex rel. Cincinnati Enquirer v. Ronan, 124 Ohio St.3d 17, 2009-Ohio-5947.]




     THE STATE EX REL. CINCINNATI ENQUIRER, A DIVISION OF GANNETT
   SATELLITE INFORMATION NETWORK, INC., APPELLANT, v. RONAN, SUPT.,
                                       APPELLEE.
               [Cite as State ex rel. Cincinnati Enquirer v. Ronan,
                       124 Ohio St.3d 17, 2009-Ohio-5947.]
Public records — R.C 149.43 — Mandamus claim rendered moot once requested
       records were produced — Claim for attorney fees not moot.
(No. 2009-0696 — Submitted October 20, 2009 — Decided November 18, 2009.)
     APPEAL from the Court of Appeals for Hamilton County, No. C-090155.
                                 __________________
       Per Curiam.
       {¶ 1} This is an appeal from the dismissal of a complaint for a writ of
mandamus to compel appellee, Cincinnati Public Schools Superintendent Mary
Ronan, to provide copies of all documents submitted by superintendent candidates
pursuant to R.C. 149.43, the Public Records Act. We affirm the judgment of the
court of appeals dismissing the mandamus claim based on mootness.
Nevertheless, because the court of appeals erred in dismissing the request for
attorney fees on the same basis of mootness, we reverse that portion of the
judgment of the court of appeals and remand the cause for further proceedings on
the request.
                            Records Request and Refusal
       {¶ 2} On February 5, 2009, a reporter for relator, the Cincinnati
Enquirer, a division of Gannett Satellite Information Network, Inc., hand-
delivered to the Cincinnati Public Schools a written request for documents
submitted by candidates for the school district’s superintendent position. The
school district refused the Enquirer’s request because it had not yet checked the
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post office box to which the documents were directed and it would not do so until
March 16. The district promised to make all public records in the post office box
available for inspection after that date.
                Mandamus Claim: Dismissal Based on Mootness
       {¶ 3} The court of appeals dismissed the Enquirer’s mandamus
complaint based on the pleadings.           “Sua sponte dismissal without notice is
warranted when a complaint is frivolous or the claimant obviously cannot prevail
on the facts alleged in the complaint.” State ex rel. Scott v. Cleveland, 112 Ohio
St.3d 324, 2006-Ohio-6573, 859 N.E.2d 923, ¶ 14; State ex rel. Duran v. Kelsey,
106 Ohio St.3d 58, 2005-Ohio-3674, 831 N.E.2d 430, ¶ 7.
       {¶ 4} The court of appeals properly held that the Enquirer’s mandamus
complaint was moot because the school district had produced the requested
records after the Enquirer had commenced the underlying suit. See State ex rel.
Toledo Blade Co. v. Seneca Cty. Bd. of Commrs., 120 Ohio St.3d 372, 2008-Ohio-
6253, 899 N.E.2d 961, ¶ 43, in which we held that the newspaper’s claim for
records was rendered moot once the board of county commissioners had produced
the document.
       {¶ 5} Nor is the Enquirer’s public-records mandamus claim excepted
from being moot on the ground that it is “capable of repetition, yet evading
review.” State ex rel. Dispatch Printing Co. v. Geer, 114 Ohio St.3d 511, 2007-
Ohio-4643, 873 N.E.2d 314, ¶ 10. “This exception applies only in exceptional
circumstances in which the following two factors are both present:           (1) the
challenged action is too short in duration to be fully litigated before its cessation
or expiration, and (2) there is a reasonable expectation that the same complaining
party will be subject to the same action again.” (Emphasis added.) State ex rel.
Calvary v. Upper Arlington (2000), 89 Ohio St.3d 229, 231, 729 N.E.2d 1182.
       {¶ 6} The Enquirer did not sufficiently allege any reasonable expectation
that it would again be subjected to the same action. In fact, in its appellate




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argument, the Enquirer appears to acknowledge that it has no current information
of prior instances in which the Cincinnati Public Schools had engaged in a
continuing pattern and practice to delay production of public records and that it
had merely sought to conduct discovery on its general allegations.
       {¶ 7} We are cognizant that “Ohio generally follows notice, rather than
fact, pleading” except in certain special circumstances in which we have modified
the standard by requiring the pleading of specific facts. See State ex rel. Williams
Ford Sales, Inc. v. Connor (1995), 72 Ohio St.3d 111, 113, 647 N.E.2d 804; cf.
S.Ct.Prac.R. X(4)(B) (requiring complaints for most original actions filed in this
court to contain a “specific statement of facts upon which the claim for relief is
based”). We are also aware that, in general, a plaintiff “is not required to prove
his or her case at the pleading stage” because many plaintiffs lack access to
relevant evidence, which can be obtained only through discovery from materials
in the defendant’s possession. See York v. Ohio State Highway Patrol (1991), 60
Ohio St.3d 143, 144-145, 573 N.E.2d 1063; State ex rel. Hanson v. Guernsey Cty.
Bd. of Commrs. (1992), 65 Ohio St.3d 545, 549, 605 N.E.2d 378.
       {¶ 8} These cases are inapposite here, however, because the Enquirer
would have had access to relevant evidence showing whether the Cincinnati
Public Schools had refused to provide the newspaper with requested records so as
to establish a reasonable expectation that “the same complaining party,” i.e., the
Enquirer, would be subject to the same action again.
       {¶ 9} Therefore, the court of appeals properly dismissed the Enquirer’s
mandamus claim based on mootness.
                                  Attorney Fees
       {¶ 10} Nevertheless, as we recently held in a different public-records
mandamus case instituted by relator, “even if the Enquirer’s mandamus claim
were properly dismissed as moot, a claim for attorney fees in a public-records
mandamus action is not rendered moot by the provision of the requested records



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after the case has been filed.” State ex rel. Cincinnati Enquirer v. Heath, 121
Ohio St.3d 165, 2009-Ohio-590, 902 N.E.2d 976, ¶ 18. Therefore, although the
court of appeals correctly dismissed the Enquirer’s mandamus claim as moot, it
erred in dismissing the Enquirer’s request for attorney fees on the basis of
mootness.
                                   Conclusion
        {¶ 11} We affirm the judgment of the court of appeals dismissing the
Enquirer’s mandamus claim based on mootness. However, because the court of
appeals erred in dismissing the Enquirer’s request for attorney fees based on
mootness, we reverse that portion of the judgment of the court of appeals and
remand the cause for further proceedings solely on that request.
                                                            Judgment accordingly.
        MOYER, C.J., and O’CONNOR, LANZINGER, and CUPP, JJ., concur.
        PFEIFER, LUNDBERG STRATTON, and O’DONNELL, JJ., concur in part and
dissent in part.
                              __________________
        LUNDBERG STRATTON, J., concurring in part and dissenting in part.
        {¶ 12} I agree with the decision dismissing the Enquirer’s mandamus
claim. However, because I believe that the Enquirer’s complaint lacked merit, I
would also dismiss the claim for attorney fees. Therefore, I respectfully dissent
from the majority’s remand for further proceedings on the request for attorney
fees.
        {¶ 13} The Cincinnati Public Schools directed candidates for the position
of superintendent to submit applications to a post office box by March 15, 2009.
As in a competitive bidding process, the school district intended to wait until the
day after the deadline to review all submissions at once.
        {¶ 14} On February 5, 2009, the Cincinnati Enquirer submitted a public
records request to the Cincinnati Public Schools for copies of all documents




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submitted by candidates for the superintendent position.         The school district
notified the newspaper that it had not opened the post office box and that the
contents, if any, had not yet been used by the district. The school district agreed
to make the documents available for inspection and copying once it had retrieved
the contents of the post office box following the March 15, 2009 deadline.
Despite this information, the Enquirer proceeded to file a complaint in mandamus
for an order requiring the Cincinnati Public Schools to make the records available
for inspection.
       {¶ 15} The school district opened the post office box and retrieved the
contents on March 16, 2009, and promptly produced copies of the requested
documents to the Enquirer the following day. The newspaper has not challenged
the sufficiency of the records produced.
       {¶ 16} I believe that the requested documents did not constitute public
records subject to R.C. 149.43 when the Enquirer made its initial request. On
February 5, 2009, the contents of the post office box were not records that the
school district had used “to document the organization, functions, policies,
decisions, procedures, operations, or other activities of the office.”           R.C.
149.011(G). The district was not obligated to produce copies of the documents
until it had used them to carry out the school district’s duties and responsibilities,
at which point they became public records subject to inspection. State ex rel.
Beacon Journal Publishing Co. v. Whitmore (1998), 83 Ohio St.3d 61, 63, 697
N.E.2d 640. Thus, there was no violation of R.C. 149.43, and the Enquirer’s
complaint is meritless.
       {¶ 17} The majority remands for the court to consider the Enquirer’s
request for attorney fees on the ground that the dismissal of a complaint as moot
does not defeat a claim for attorney fees.       However, while I agree that the
complaint is moot, I also believe that the Enquirer filed a meritless claim;
therefore, there is no reason to remand for consideration of attorney fees.



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“Relators are not entitled to attorney fees concerning those claims that were
meritless.” State ex rel. Ohio Patrolmen’s Benevolent Assn. v. Mentor (2000), 89
Ohio St.3d 440, 448, 732 N.E.2d 969.
       {¶ 18} Furthermore, although mootness may not preclude an award of
attorney fees, such an award under R.C. 149.43 is not mandatory. See State ex
rel. Calvary v. Upper Arlington (2000), 89 Ohio St.3d 229, 234, 729 N.E.2d 1182
(Lundberg Stratton, J., concurring in part and dissenting in part). “A court may
award attorney fees pursuant to R.C. 149.43 where (1) a person makes a proper
request for public records pursuant to R.C. 149.43, (2) the custodian of the public
records fails to comply with the person’s request, (3) the requesting person files a
mandamus action pursuant to R.C. 149.43 to obtain copies of the records, and (4)
the person receives the requested public records only after the mandamus action is
filed, thereby rendering the claim for a writ of mandamus moot.” State ex rel.
Pennington v. Gundler (1996), 75 Ohio St.3d 171, 661 N.E.2d 1049, syllabus.
       {¶ 19} Even if the claims in the Enquirer’s complaint were only moot, I
believe that the claim for attorney fees fails because the Enquirer does not meet
the necessary requirements for an award of fees. The Enquirer did not make a
proper request, and the school district did not fail to comply.        The district
promptly responded to the Enquirer’s initial letter and then produced the records
in a timely fashion once the district had used the documents and they became
records subject to R.C. 149.43. Instead, the Enquirer chose to prematurely file a
mandamus claim, knowing that the school district intended to obtain the
documents from the post office box on a date certain and had agreed to promptly
produce the documents once the post office box was opened. The Enquirer was
not entitled to those documents before the school had used them.
       {¶ 20} In conclusion, I believe that dismissal was appropriate because
these were not public records subject to disclosure at the time of the Enquirer’s
request; therefore, the Enquirer’s claim for attorney fees also fails. I concur with




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the decision affirming part of the judgment of the court of appeals. However, for
the reasons stated, I respectfully dissent from the decision to remand the cause for
further proceedings on the request for attorney fees.
       PFEIFER and O’DONNELL, JJ., concur in the foregoing opinion.
                              __________________
       Graydon, Head & Ritchey, L.L.P., and John C. Greiner, for appellant.
       Taft, Stettinius & Hollister, L.L.P., Mark J. Stepaniak, and Ryan M.
Martin, for appellee.
                            ______________________




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