Author: Paul-Michael La Fayette
Recently, the Ohio General Assembly passed Sub SB321 wherein the Ohio General Assembly created an alternate jurisdiction in the Ohio Court of Claims to hear complaints concerning denials of access to public records. The purpose of the statutory change was to provide greater access to the public for resolving public records disputes and to provide for an expeditious and economical procedure to resolve such disputes. While the new statute, R.C. 2743.75, provides that the “Court of Claims shall be the sole and exclusive authority in the State that adjudicates or resolves complaints based on alleged violations” of public records law, it is not a substitute for an action in mandamus which still may be brought in common pleas court, court of appeals or Ohio Supreme Court.
Under R.C. 2743.75, an individual who claims a denial of access to public records may file a complaint in the Court of Claims or in the court of common pleas for the county in which the public entity is located. If the cause of action is filed in the Common Pleas Court, it is then transmitted to the Court of Claims for further adjudication. There is a $25.00 filing fee which may be recovered by a prevailing complainant.
Upon the filing of a complaint for a public records violation, the Clerk of the Court of Claims immediately assigns the matter to a special master and the case is stayed pending mediation. If mediation is unsuccessful, the public entity is permitted ten (10) days to file an answer or move to dismiss the complaint. No other pleadings are authorized. Furthermore, the procedure does not permit discovery except upon order of the special master. If such additional information is deemed necessary or appropriate the parties are permitted to attach affidavits to the pleadings and, presumptively, documentation authenticated by the affidavit. Once the answer or motion to dismiss is filed, the matter is then submitted to the special master for a report and recommendation which must be issued within seven (7) days.
Within seven (7) days, after the special master issues a report and recommendation, the parties may file objections. The Court of Claims must issue a final order within seven (7) days of the objections. The Court may accept, reject or modify the recommendations of the special master.
Consistent with Ohio law, the parties may appeal a final order; however, they may only do so if that party had previously filed objections to the special master’s report and recommendations. The appeal is filed with the court of appeals in the judicial district where the public office is located.
If the court of appeals finds that a public records violation occurred, the aggrieved party shall be entitled to recover the $25 filing fee from the public office. The court of appeals may only award attorney fees if it determines that the appeal was “obviously” filed with the intent to either, delay compliance with the court’s order without reasonable cause or, to unduly harass the aggrieved person. Notably, no discovery may be conducted on the issue of whether or not the public office or person responsible for the public records filed the appeal with the intent to either delay compliance or unduly harass the aggrieved party.
Also of note, R.C. 2323.52, the Vexatious Litigator Statute is amended to include protections against vexatious litigation for causes of action filed under the new statute. As such, a party who abuses the new public records law and is deemed a “vexatious litigator” may be subject to sanctions.