Legal Loopholes: Where Money Is Made And Lost

Last week, the Ohio Supreme Court issued a 6-1 decision in a public records access case that has left some scratching their heads.  This is not to say the decision in DiFranco v. City of South Euclid is flawed, but that the state statute can create a problematic outcome.  

The issue involved DiFranco seeking public records.  After she made the request, the City stalled two months and then provided only partial records after she hired an attorney and filed a mandamus action (the City moved to dismiss the action, which the court later converted to a motion for summary judgment).  Aware that the records were deficient, Emilie DiFranco produced an expert affidavit.  This eventually prompted the City to finally turn over the public records, albeit about four more months later.  After the affidavit was filed, the court required the City to respond to the affidavit’s allegations.   However, by the time the court issued this order, the City had just provided the deficient documents – making the court order moot.  

Upset that she had to hire an attorney in order to get the requested public records, DiFranco moved for attorney fees.  The request was denied and that denial subsequently affirmed by the appellate and Supreme Court of Ohio.  

The reason:  O.R.C. 149.43, as written, does not mandate the payment of attorney fees if the records are produced prior to a court order compelling production.  

The reality:  Public entities have an incentive to withhold key public documents until the requesting party proves he/she is serious enough to sue for the records.  And if the suit occurs, the public entity can avoid paying attorney fees, and essentially penalize the requesting party by requiring him/her to incur such attorney fees, simply by providing the public records before being forced to do so by the court.  

The result:  Thousands of dollars is lost by people requesing public records by either the intentional or inadvertent acts of the public entity records custodian.  So now that we know where the money is lost due to this legal loophole, where is it made?  By the attorneys unnecessarily involved in the case, where else?!  

This is a case where bad statutory law begets bad case law.