[Cite as State ex rel. O’Shea & Assocs. Co., L.P.A. v. Cuyahoga Metro. Hous. Auth., 131 Ohio
St.3d 149, 2012-Ohio-115.]




 THE STATE EX REL. O’SHEA & ASSOCIATES COMPANY, L.P.A., APPELLEE, v.
        CUYAHOGA METROPOLITAN HOUSING AUTHORITY, APPELLANT.
 [Cite as State ex rel. O’Shea & Assocs. Co., L.P.A. v. Cuyahoga Metro. Hous.
                    Auth., 131 Ohio St.3d 149, 2012-Ohio-115.]
Public records—Mandamus sought to compel respondent to release records
        documenting instances of lead poisoning in dwellings owned or operated
        by respondent—Portions of documents containing personal identifying
        information of residents are not public records—Judgment granting writ
        affirmed in part and denied in part.
   (No. 2010-1536—Submitted October 5, 2011—Decided January 19, 2012.)
       APPEAL from the Court of Appeals for Cuyahoga County, No. 93275,
                       190 Ohio App.3d 218, 2010-Ohio-3416.
                                 __________________
        LUNDBERG STRATTON, J.
        {¶ 1} This is an appeal from a judgment granting appellee, O’Shea &
Associates Company, L.P.A. (“O’Shea”), a writ of mandamus to compel
appellant, Cuyahoga Metropolitan Housing Authority (“CMHA”), to provide
copies of all records that document any and all instances of lead poisoning in the
last 15 years in any dwelling owned or operated by CMHA and awarding O’Shea
$7,537.50 in attorney fees. Because portions of the requested copies are not
obtainable pursuant to the Public Records Act, R.C. 149.43, we reverse the
judgment of the court of appeals in part and deny the writ in part. We also reverse
the judgment awarding O’Shea attorney fees.
                                          Facts
        {¶ 2} O’Shea is an Ohio law firm located in Rocky River, Ohio. On
March 26, 2009, O’Shea requested that CMHA provide it with the following:
                                SUPREME COURT OF OHIO




       {¶ 3} “1. Copies of all liability insurance contracts which cover any and
all premises liability issues for the last 20 years for any and all buildings owned or
operated by CMHA;
       {¶ 4} “2. Copies of all minutes of all meetings (for the last 10 years)
wherein liability insurance and/or the process, methods and sources of paying
legal claims for personal injury claims against CMHA are either discussed or
decided; and
       {¶ 5} “3. Copies of all documents which document any and all instances
of lead poisoning in the last 15 years in any dwelling owned or operated by
CMHA.”
       {¶ 6} By letter dated April 10, 2009, CMHA responded to O’Shea’s
request and advised O’Shea that certain insurance policies and meeting minutes
were available at its office for inspection and copying. For the lead-poisoning
records in the third request, CMHA claimed that the requested records were not
public records.
       {¶ 7} On May 11, 2009, O’Shea filed a verified petition in the Court of
Appeals for Cuyahoga County for a writ of mandamus to compel CMHA to
produce all the requested records. O’Shea also requested an award of attorney
fees and statutory damages. CMHA filed a motion to dismiss O’Shea’s petition
because CMHA had produced every insurance policy from 2006 through the
present in response to the first item of the request, and for the second and third
items, the requests were overbroad and improperly sought selected information
rather than specific records.
       {¶ 8} In January 2010, the court of appeals granted CMHA’s motion to
dismiss regarding item two (minutes for meetings in which liability insurance or
the payment of personal-injury claims were discussed) because the request
improperly sought information rather than records. The court granted leave for




                                          2
                                January Term, 2012




the filing of additional briefs and motions as to the remaining requests for the
insurance policies and the lead-poisoning records.
       {¶ 9} O’Shea moved for summary judgment on the issue of CMHA’s
failure to provide the lead-poisoning documents. In response, CMHA claimed
that (1) O’Shea’s request for the lead-poisoning documents was an improper
request for information, (2) documents containing lead-paint incidents involving
children were not records for purposes of the Public Records Act, and (3) the
documents were exempt from disclosure. CMHA attached an affidavit from its
chief general counsel in which she stated that when individuals inform CMHA of
an elevated level of lead in their blood for themselves or one of their children, the
CMHA handles the allegation as a potential legal claim.             As part of its
investigation, CMHA asks the individual to complete a questionnaire and provide
an authorization for the release of medical information.
       {¶ 10} CMHA attached copies of the forms to the affidavit. However, the
attached forms refer only to reports for children. CMHA’s questionnaire states
that “[t]he purpose of this questionnaire is to determine the likely sources of lead
exposure and to assist the Lead Risk Assessor in determining where
environmental sampling should be conducted” and that “[a]ll information is
confidential and will be maintained only at the CMHA Office of Environmental
Affairs.” The questionnaire asks for resident information, including the name,
address, and telephone number of the resident and any children’s names and dates
of birth. It then requests general information, including where the child was
likely exposed to lead, when the family moved into the home, the addresses, ages,
and conditions of the dwellings in which the child resided in the past 12 months,
and the dates of residency, and similar information if the child is cared for away
from home. The questionnaire continues with queries designed to determine the
child’s exposure to lead, including lead-based paint and lead-contaminated dust
hazards, lead-in-soil hazards, occupational and hobby-related hazards, child-



                                         3
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behavior risk factors, and other household-risk factors. For the occupational
hazards, the questionnaire requests the family or other occupants’ names, places
of employment, jobs, and probable lead exposure on the job.
         {¶ 11} CMHA’s authorization for the release of medical information1 is
used to obtain a child’s medical records held by the Cleveland Department of
Public Health Lead Poisoning Prevention Program. This form also asks for the
name of the parent or guardian of the minor child, the name, age, and address of
the child, and the parent’s or guardian’s signature and Social Security number.
         {¶ 12} On May 25, 2010, the court of appeals granted O’Shea’s motion
for summary judgment regarding the request for lead-poisoning documents and
ordered CMHA to provide “ ‘[c]opies of all documents which document any and
all instances of lead poisoning in the last 15 years in any dwelling owned or
operated by CMHA,’ including—but not limited to—copies of each ‘CMHA EBL
Resident Questionnaire’ (“Questionnaire”) and ‘CMHA Authorization for Release
of Medical Information.’ ” The court, however, ordered CMHA to redact Social
Security numbers from the completed forms. The court of appeals determined
that O’Shea’s request for lead-poisoning documents was not an improper request
for information, the documents were records subject to the Public Records Act,
and the documents were not exempt from disclosure.
         {¶ 13} The court of appeals also awarded O’Shea $1,000 in statutory
damages and granted leave to O’Shea to move for attorney fees.
         {¶ 14} CMHA filed a motion for reconsideration and submitted evidence
for the first time that purported to show—based on counsel’s “information and
belief”—that CMHA receives funding from the federal government that is

1. We emphasize that the medical-release authorization was not a form issued by either a hospital
or other health-care provider. There is also no evidence that the authorization was generated or
maintained by CMHA in the process of medical treatment. Furthermore, authorization for the
release of medical records that is directed to a hospital or other health-care provider may, in other
situations, constitute a medical record not subject to R.C. 149.43 because the release was executed
for the purpose of further medical treatment or other issues.




                                                 4
                                    January Term, 2012




administered through the United States Department of Housing and Urban
Development (“HUD”). As a condition of its receipt of federal funding, CMHA is
required to comply with all regulations and orders issued by HUD, including the
Federal Privacy Act, Section 552a, Title 5, U.S.Code. CMHA argued that if it
complied with the court’s May 25, 2010 order, it would be in violation of HUD
requirements related to protecting the privacy of public-housing residents.
        {¶ 15} On July 20, 2010, the court of appeals entered its judgment in the
case, reiterating the relief granted in its previous orders and also granting O’Shea
$7,537.50 in attorney fees. The court of appeals also denied CMHA’s motion for
reconsideration.
        {¶ 16} This cause is now before the court upon CMHA’s appeal as of
right. The parties submitted briefs, and the United States submitted amicus curiae
briefs in support of CMHA.2
                                      Legal Analysis
                          Mandamus in Public-Records Cases
        {¶ 17} “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). “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.
        {¶ 18} The parties do not dispute that CMHA is a public office for
purposes of R.C. 149.43. CMHA instead claims that the court of appeals erred in
granting the writ of mandamus to compel it to provide copies of lead-poisoning

2. On appeal, CMHA does not specifically challenge the court of appeals’ rulings denying its
motion for summary judgment and granting the writ on O’Shea’s public-records mandamus claim
for liability-insurance contracts and awarding O’Shea $1,000 in statutory damages. Therefore, we
do not address these aspects of the court of appeals’ judgment.




                                               5
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documents because O’Shea’s request for these documents constituted an
overbroad request for records, the documents are not records subject to R.C.
149.43, and the documents are exempt from disclosure under R.C. 149.43.
                    A Request for Documents, Not Information
       {¶ 19} CMHA first contends that O’Shea’s request for lead-poisoning
documents was improper because it was ambiguous and overbroad, and it sought
selected information instead of specific records. “ ‘[I]t is the responsibility of the
person who wishes to inspect and/or copy records to identify with reasonable
clarity the records at issue.’ ” State ex rel. Taxpayers Coalition v. Lakewood
(1999), 86 Ohio St.3d 385, 391, 715 N.E.2d 179, quoting State ex rel. Fant v.
Tober (May 20, 1993), Cuyahoga App. No. 63737, 1993 WL 173743, *1.
“Requests for information and requests that require the records custodian to create
a new record by searching for selected information are improper requests under
R.C. 149.43.” State ex rel. Morgan v. New Lexington, 112 Ohio St.3d 33, 2006-
Ohio-6365, 857 N.E.2d 1208, ¶ 30.
       {¶ 20} O’Shea’s request was for “[c]opies of all documents which
document any and all instances of lead poisoning in the last 15 years in any
dwelling owned or operated by CMHA.” Although this is an overbroad request
for information, O’Shea argues on appeal that it was seeking, among other lead-
poisoning documents, “lead citation reports, lead inspection reports, lead
abatement reports, reports to HUD about lead issues and abatement, the location
of residences that have lead problems, [and] correspondence from CMHA
management about lead issues,” records not specified in its request.
       {¶ 21} But we must consider the propriety of a public-records request “in
the context of the circumstances surrounding it.” New Lexington, ¶ 33. When
initially responding to O’Shea’s request for lead-poisoning records, CMHA did
not suggest that it was ambiguous or overbroad, or an improper request for
information rather than records; it did not make that argument until after O’Shea



                                          6
                                January Term, 2012




instituted its public-records mandamus case. And O’Shea itself had subsequently
clarified its request, specifying that it requested records CMHA was “required by
federal law to keep * * * of all instances of lead problem properties and repairs, as
well as records of all instances where a child was poisoned.” Ultimately, CMHA
attached to its brief in opposition to O’Shea’s motion for summary judgment
copies of the resident questionnaire and the authorization for the release of
medical information, which it agreed were responsive to O’Shea’s request.
       {¶ 22} Therefore, we hold that O’Shea’s request for lead-poisoning
records was appropriate.
                        Are the Lead-Poisoning Documents
                           Records Subject to R.C. 149.43?
       {¶ 23} CMHA next claims that the requested lead-poisoning documents—
including the questionnaire and medical-release authorization—are not records
subject to disclosure under the Public Records Act.          To establish that these
documents are records for purposes of R.C. 149.011(G) and 149.43, O’Shea had
to establish that they are (1) documents, devices, or items, (2) created or received
by or coming under the jurisdiction of CMHA, (3) which serve to document the
organization, functions, policies, decisions, procedures, operations, or other
activities of the office. See State ex rel. Dispatch Printing Co. v. Johnson, 106
Ohio St.3d 160, 2005-Ohio-4384, 833 N.E.2d 274, ¶ 19.
       {¶ 24} The two documents that CMHA has identified thus far—the
completed questionnaire and medical-release authorization—meet the first two
requirements of a record under R.C. 149.011(G) and 149.43. They are documents
received by CMHA from its tenants when it has been reported that a child’s blood
has an elevated level of lead. The dispositive issue is whether they meet the third
requirement: they must serve to document “the organization, functions, policies,
decisions, procedures, operations, or other activities” of CMHA.




                                          7
                                  SUPREME COURT OF OHIO




         {¶ 25} On several occasions, we have addressed whether personal
information is subject to disclosure pursuant to R.C. 149.43. In State ex rel.
McCleary v. Roberts (2000), 88 Ohio St.3d 365, 725 N.E.2d 1144, we held that a
city department’s database containing the identifying, personal information of
children who used city recreation facilities did not constitute a record for purposes
of the Public Records Act because “[s]tanding alone, that information, i.e., names
of children, home addresses, names of parents and guardians, and medical
information, does nothing to document any aspect of the City’s Recreation and
Parks Department.” Id. at 368.3
         {¶ 26} Furthermore, we emphasized in McCleary that the personal
information requested was provided by private citizens rather than contained in
the personnel file of a public employee. Consequently, we held that the personal
information was outside the scope of R.C. 149.43 and not subject to disclosure.
Id. at 369-370.
         {¶ 27} In State ex rel. Beacon Journal Publishing Co. v. Bond, 98 Ohio
St.3d 146, 2002-Ohio-7117, 781 N.E.2d 180, ¶ 11, we relied on McCleary to hold
that a newspaper was not entitled to juror-questionnaire responses and a list of
juror names and addresses in an ongoing capital-murder trial, because those
documents did not constitute records subject to R.C. 149.43:
         {¶ 28} “Our reasoning in McCleary applies with equal force to the juror
questionnaire responses and the list of juror names and addresses. The disclosure
of information regarding prospective and impaneled jurors does little to ensure the
accountability of government or shed light on the trial court’s performance of its
statutory duties.”




3. The General Assembly later codified the holding in McCleary by excepting “[i]nformation
pertaining to the recreational activities of a person under the age of eighteen” from the definition
of “public record” for purposes of the Public Records Act. See R.C. 149.43(A)(1)(r) and (8).




                                                 8
                               January Term, 2012




       {¶ 29} Similarly, in Johnson, 106 Ohio St.3d 160, 2005-Ohio-4384, 833
N.E.2d 274, syllabus, we held that state-employee home addresses were not
records subject to disclosure under R.C. 149.43. While “any state-agency policy
requiring that its employees provide and update their home addresses would
document a policy and procedure of a public office, * * * the home addresses
themselves would not do so.” Id. at ¶ 26.
       {¶ 30} Like the documents at issue in McCleary, Bond, and Johnson,
much of the personal information contained in the completed CMHA-resident
questionnaire and the authorization for release of medical information does not
serve to document “the organization, functions, policies, decisions, procedures,
operations, or other activities” of CMHA.
       {¶ 31} The court of appeals distinguished McCleary and instead compared
this case to State ex rel. Cincinnati Enquirer v. Daniels, 108 Ohio St.3d 518,
2006-Ohio-1215, 844 N.E.2d 1181, in which we held that lead-citation notices
issued to property owners of dwelling units reported to be the residence of
children whose blood-test results indicate elevated lead levels and lead-risk-
assessment reports maintained by the city health department were subject to
disclosure under the Public Records Act.       In reaching this conclusion, we
emphasized that the notices and reports directed to specific property owners did
not, for the most part, contain the same specific identifiable information that we
had held in McCleary was not obtainable under R.C. 149.43:
       {¶ 32} “[T]he lead-citation notices issued by the health department reveal
that they are intended to advise the owners of real estate about results of
department investigations and to apprise them of violations relating to lead
hazards; the report identifies existing and potential lead hazards on the exterior
and interior of the property, details the tests performed on the property and the
results of those tests, explains the abatement measures required, provides advice
about options to correct the problem, and mandates reporting of abatement



                                        9
                            SUPREME COURT OF OHIO




measures, including the name of the abatement contractor, the abatement method,
and the date of expected abatement completion. Nothing contained in these
reports identifies by name, age, birth date, social security number, telephone
number, family information, photograph, or other identifier any specific
individual or details any specific medical examination, assessment, diagnosis, or
treatment of any medical condition. There is a mere nondescript reference to ‘a’
child with ‘an’ elevated lead level.” (Emphasis added.) Daniels at ¶ 16.
       {¶ 33} Here, as in McCleary, the questionnaire and medical-release
authorization contain, in part, identifying information—names, birth dates, Social-
Security and telephone numbers, and family information.          The lead-citation
notices and lead-risk-assessment reports at issue in Daniels did not contain the
specific identifiable information addressed in McCleary. Therefore, the court of
appeals erred in applying Daniels as authority to require disclosure of the entire
completed questionnaire and authorization, subject only to redaction of Social
Security numbers, when the documents contain specific personal, identifying
information.
       {¶ 34} The forms that CMHA requires its residents to complete further
CMHA’s statutory duty to “provide safe and sanitary housing accommodations to
families of low income within that district.” Like the lead-citation notices and
assessment reports in Daniels, the residence addresses and the substantive
information concerning general, nonidentifying information, lead-based paint and
lead-contaminated dust hazards, water-lead hazards, lead-in-soil hazards,
occupational or hobby hazards, and child-behavior risk factors would all be
pertinent to an analysis of whether CMHA took steps to provide safe housing in
specific CMHA dwellings with possible lead hazards. Release of this information
would help to hold CMHA accountable for its statutory duty of reducing or
eliminating any lead-related hazard in its residences and would reveal the




                                        10
                                January Term, 2012




agency’s success or failure in doing so, without requiring release of much of the
residents’ personal information.
       {¶ 35} The lead-citation notices and lead-risk-assessment reports that we
ordered disclosed in Daniels contained residence addresses. As in Daniels, the
addresses contained in the completed lead-poisoning questionnaires and releases
here help the public monitor CMHA’s compliance with its statutory duty to
provide safe housing. Therefore, the residence addresses in these completed
forms are obtainable under R.C. 149.43.
       {¶ 36} Based on the foregoing, we hold that the personal identifying
information in CMHA lead-poisoning documents, such as the names of parents
and guardians, their Social Security and telephone numbers, their children’s
names and dates of birth, the names, addresses, and telephone numbers of other
caregivers, and the names of and places of employment of occupants of the
dwelling unit, including the questionnaire and authorization, do not serve to
document the organization, functions, policies, decisions, procedures, operations,
or other activities of the CMHA and are not obtainable under the Public Records
Act. However, the remainder of the completed forms is subject to disclosure
under R.C. 149.011(G) and 149.43. If any question should arise about whether
any portion of the completed forms discloses personally identifiable information,
the court of appeals on remand will determine which portions should be redacted
and not be subject to disclosure.
        The Records Are Not Exempt from Disclosure under R.C. 149.43
       {¶ 37} Finally, CMHA claims that the questionnaire and medical-release
authorization, insofar as they constitute records for purposes of R.C. 149.43, are
exempt from disclosure based on several grounds. “Exceptions 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 exception.” State ex rel. Cincinnati Enquirer v. Jones-Kelley,



                                        11
                            SUPREME COURT OF OHIO




118 Ohio St.3d 81, 2008-Ohio-1770, 886 N.E.2d 206, at paragraph two of the
syllabus. We now consider CMHA’s claimed exemptions.
                               Federal Privacy Act
       {¶ 38} CMHA first claims that the federal Privacy Act, Section 552(a),
Title 5, U.S.Code, prohibits the disclosure of the requested documents. CMHA’s
claim, however, lacks merit because the federal Privacy Act applies only to
federal agencies. See Schmitt v. Detroit (C.A.6, 2005), 395 F.3d 327, 329 (“the
Privacy Act * * * unambiguously defines the term ‘agency’ as an agency of the
federal government”).     In addition, CMHA claims that because it receives
subsidies from the federal government, it is governed by a contract that requires
CMHA to comply with the federal Privacy Act.            CMHA, however, did not
introduce evidence of this contractual relationship in opposition to O’Shea’s
motion for summary judgment. Instead, CMHA raised this issue in a motion for
reconsideration, which was subsequently denied. The court of appeals did not
abuse its discretion in denying CMHA’s motion for reconsideration on its
untimely raised argument. See State ex rel. Miller v. Brady, 123 Ohio St.3d 255,
2009-Ohio-4942, 915 N.E.2d 1183, ¶ 13 (court of appeals did not abuse its
discretion in denying what was essentially a motion for reconsideration of an
interlocutory order in a public-records mandamus case, because respondent failed
to timely raise a claim in response to an alternative writ and show-cause order).
       {¶ 39} Moreover, CMHA’s claim that disclosure of the lead-poisoning
documents may be a violation of HUD requirements was insufficient to meet its
burden to prove that the requested records “fall squarely within the exception.”
Jones-Kelley, 118 Ohio St.3d 81, 2008-Ohio-1770, 886 N.E.2d 206, at paragraph
two of the syllabus.
       {¶ 40} Therefore, CMHA failed to establish that the federal Privacy Act
exempted the records from disclosure.




                                         12
                               January Term, 2012




                                Medical Records
       {¶ 41} CMHA next argues that the lead-poisoning documents, including
the questionnaire and medical-release authorization, are excepted from disclosure
as medical records under R.C. 149.43(A)(1)(a). “ ‘Medical record’ means any
document or combination of documents, except births, deaths, and the fact of
admission to or discharge from a hospital, that pertains to the medical history,
diagnosis, prognosis, or medical condition of a patient and that is generated and
maintained in the process of medical treatment.”        (Emphasis added.)     R.C.
149.43(A)(3).
       {¶ 42} To be excepted from disclosure, medical records “must meet the
conjunctive requirements of the statute.” State ex rel. Strothers v. Wertheim
(1997), 80 Ohio St.3d 155, 158, 684 N.E.2d 1239. There is no evidence here that
the requested records, including the completed questionnaires and medical-release
authorizations, although they may touch upon a child’s medical history, are
generated and maintained in the process of the child’s medical treatment. Instead,
they are generated and maintained to help eliminate or reduce lead exposure in
CMHA residences.
       {¶ 43} Therefore, CMHA has not established that the requested records
are excepted from disclosure as medical records.
          Trial-Preparation and Investigatory Work-Product Materials
       {¶ 44} CMHA asserts that the requested records are also exempted from
disclosure as trial-preparation and investigatory work-product materials. See R.C.
149.43(A)(1)(g) and (h). Notwithstanding CMHA’s claims that the records were
compiled to defend against lawsuits based on lead exposure instituted against it,
the questionnaire itself specifies a different purpose: “to determine the likely
sources of lead exposure and to assist the Lead Risk Assessor in determining
where environmental sampling should be conducted.”            Moreover, there is
insufficient evidence here to support the claim that the questionnaire and medical-



                                        13
                            SUPREME COURT OF OHIO




release authorization were prepared in anticipation of litigation. CMHA failed to
demonstrate that these documents were work-product materials or documents
prepared in anticipation of trial. Therefore, CMHA has not established that the
subject records are exempted from disclosure as either trial-preparation or work-
product material.
                                  Attorney Fees
       {¶ 45} CMHA is correct, however, that the court of appeals erred in
awarding attorney fees to O’Shea. The court’s award was premised in part upon
its conclusion that O’Shea was entitled to all the requested lead-poisoning
documents. As previously discussed, however, O’Shea is not entitled to most of
the personal identifying information contained in these records.         Moreover,
O’Shea was represented by its principal attorney, Michael J. O’Shea, in the
public-records mandamus case. But O’Shea introduced no evidence that it either
paid or was obligated to pay its own counsel attorney fees. These fees are
consequently not available in the mandamus case. See State ex rel. Beacon
Journal Publishing Co. v. Akron, 104 Ohio St.3d 399, 2004-Ohio-6557, 819
N.E.2d 1087, ¶ 62, and cases cited therein; State ex rel. Citizens for Open,
Responsive & Accountable Govt. v. Register, 116 Ohio St.3d 88, 2007-Ohio-5542,
876 N.E.2d 913, ¶ 24; see also R.C. 149.43(C)(2)(c) (“reasonable attorney’s fees
awarded under this section shall be construed as * * * not punitive”).
       {¶ 46} Therefore, the court of appeals erred in awarding attorney fees to
O’Shea.
                       Additional Amicus Curiae Argument
       {¶ 47} Insofar as the United States raises additional arguments that are not
raised by the parties to this action, we need not address them. See Wellington v.
Mahoning Cty. Bd. of Elections, 117 Ohio St.3d 143, 2008-Ohio-554, 882 N.E.2d
420, ¶ 53.




                                        14
                                January Term, 2012




                                    Conclusion
       {¶ 48} As clarified by O’Shea, its records request included records that
CMHA was “required by federal law to keep * * * of all instances of lead
problem properties and repairs,” which may encompass records in addition to the
questionnaire and authorization.     CMHA did not submit evidence that other
records involving lead problems do not exist.        Therefore, to the extent that
O’Shea’s request properly sought additional lead-poisoning records, the court of
appeals did not err in granting the writ of mandamus to compel CMHA to provide
access to them.
       {¶ 49} However, based on the foregoing, we reverse that portion of the
court of appeals judgment granting the writ of mandamus to compel CMHA to
disclose the portions of the requested lead-poisoning documents that constitute
personal identifying information, including those portions of the completed
questionnaire and release that contain the names of parents and guardians, their
telephone numbers, their children’s names and dates of birth, the names,
addresses, and telephone numbers of other caregivers, and the names of and
places of employment of occupants of the dwelling unit, and we remand the cause
to the court of appeals for further proceedings consistent with this opinion.
       {¶ 50} We affirm the portion of the court of appeals judgment ordering
the disclosure of the remaining portions of the requested documents, including
other records that may exist in response to O’Shea’s request beyond the
questionnaire and authorization, which are records subject to disclosure under
R.C. 149.43, with the additional redaction of Social Security numbers and any
other personal identifying information. Finally, we reverse the award of attorney
fees to O’Shea.
                                                          Judgment affirmed in part
                                                               and reversed in part,
                                                               and cause remanded.



                                         15
                            SUPREME COURT OF OHIO




       O’CONNOR, C.J., and LANZINGER, CUPP, and MCGEE BROWN, JJ., concur.
       PFEIFER and O’DONNELL, JJ., concur in part and dissent in part.
                               __________________
       PFEIFER, J., concurring in part and dissenting in part.
       {¶ 51} I concur in the judgment in this case granting the writ of
mandamus to compel Cuyahoga Metropolitan Housing Authority (“CMHA”) to
provide the requested documents, with personal identifying information redacted.
I dissent from the portion of the opinion denying attorney fees to O’Shea &
Associates Company, L.P.A., for work performed on its behalf by its principal
attorney, Michael J. O’Shea.
       {¶ 52} The majority justifies its denial of an award of attorney fees in part
by stating, “O’Shea is not entitled to most of the personal identifying information
contained in these records.” Majority opinion at ¶ 45. However, CMHA fought
tooth and nail to keep from having to produce the documents at all. They were
not arguing for redactions, but for full-scale withholding of the documents O’Shea
sought. CMHA was wrong.
       {¶ 53} Secondly, the majority states that the firm “introduced no evidence
that it either paid or was obligated to pay its own counsel attorney fees.” The
majority cites State ex rel. Beacon Journal Publishing Co. v Akron, 104 Ohio
St.3d 399, 2004-Ohio-6557, 819 N.E.2d 1087, ¶ 62. But in Beacon Journal, the
newspaper sought attorney fees for its in-house counsel; this court held that the
newspaper submitted no proof that it had incurred any attorney fees in addition to
its attorney’s regular salary and benefits for the work she performed on the
mandamus case. Here, Michael O’Shea is not in-house counsel for his law firm;
he is the principal partner at the firm. CMHA makes no argument that he is a
salaried employee of the law firm. As an attorney in a law firm, his time is his
livelihood, and CMHA wasted a lot of it.




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        {¶ 54} R.C. 149.43(C)(2)(c) states that a court may reduce attorney fees
or not award them at all if it determines both “(i) [t]hat, based on the ordinary
application of statutory law and case law as it existed at the time of the conduct
* * *, a well-informed public office or person responsible for the requested public
records reasonably would believe that the conduct or threatened conduct of the
public office or person responsible for the requested public records did not
constitute a failure to comply with an obligation [to provide the records]” and “(ii)
[t]hat a well-informed public office or person responsible for the requested public
records reasonably would believe that the * * * public office * * * responsible for
the requested public records * * * would serve the public policy that underlies the
authority that is asserted as permitting that conduct.”
        {¶ 55} There was no reason to believe that the withholding of the public
records in this case was based upon a reasonable interpretation of statutory or case
law. Therefore, I would not overturn the decision by the court of appeals to award
attorney fees in this case.
        O’DONNELL, J., concurs in the foregoing opinion.
                               __________________
        O’Shea & Associates Co., L.P.A., and Michael J. O’Shea, for appellee.
        Weston Hurd, L.L.P., Shawn W. Maestle, and Hilary S. Taylor, for
appellant.
        Steven M. Dettelbach, United States Attorney, Kent Penhallurick,
Assistant United States Attorney, and Daniel J. Lenerz, United States Department
of Justice, urging reversal for amicus curiae, United States of America.
                              ______________________




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