COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69443 : ORIGINAL ACTION STATE OF OHIO EX REL. : MARK HEYDUK : : JOURNAL ENTRY Relator : : and -vs- : : OPINION CITY OF WESTLAKE : : : Respondent : : : DATE OF ANNOUNCEMENT OF DECISION: MARCH 13, 1996 CHARACTER OF PROCEEDING: WRIT OF MANDAMUS JUDGMENT: WRIT GRANTED IN PART. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Relator: For Respondent: MICHAEL R. GAREAU, ESQ. MARY A. LENTZ, ESQ. 23823 Lorain Road Acting Law Director Suite 200 Westlake City Hall North Olmsted, Ohio 44170 27216 Hilliard Boulevard Westlake, Ohio 44145 - 2 - KARPINSKI, P.J.: Relator, Mark Heyduk, seeks a writ of mandamus in order to compel the respondent, City of Westlake, Ohio, to produce for inspection and copying certain records that pertain to real property and appurtenant structures located at 3016 Dover Center Road, Westlake, Ohio. In addition, the relator requests that all copies of records be made available at the actual cost of copying per page. Relator also seeks the award of reasonable attorney fees. On October 10, 1995, a guidelines hearing was held by this court at which time a briefing schedule was established as follows: The parties shall proceed pursuant to the following schedule and instructions: 1) by November 1, 1995, the respondent shall comply with the relator's request for public records by preparing and releasing an "Index of Records Supplied, Supplied with Redactions, or Withheld"; 2) the respondent shall provide the relator with copies of all non-exempt public records; and 3) the respondent shall file a copy of the Index with the Court. * * * If this case is not resolved by the submission of the Index and the records as redacted, the respondent shall submit under seal by November 13, 1995, five copies of each of the disputed records as well as four copies of records which indicate partial redactions. The respondent shall also certify the steps that were taken to locate all records that it could find coming within the relator's request and shall further certify that it has either released or submitted under seal all records that could come within the relator's request. On November 1, 1995, the respondent filed with this court an "Index of Records Supplied with Index of Records Withheld" and five copies under seal of all withheld records. The respondent - 3 - further asserted that all requested records, with the exception of the thirteen records provided to this court under seal, had been diligently provided to the relator. R.C. 149.43(A)(1) defines a "public record" as "*** any record that is kept by any public office *** except *** trial preparation records, confidential law enforcement investigatory records, and records the release of which is prohibited by state or federal law." It must also be noted that the attorney-client privilege establishes an exception to disclosure under R.C. 149.43 of records consisting of communications between attorneys and government clients. Woodman v. Lakewood (1988), 44 Ohio App.3d 118. Finally, a governmental body that refuses to release records possesses the burden of proving that the records in question are excepted from disclosure and all exceptions are to be strictly construed against the custodian of the records. State ex rel. Natl. Broadcasting Co. v. Cleveland (1988), 38 Ohio St.3d 79 ("NBC I"); State ex rel. Natl. Broadcasting Co. v. Cleveland (1991), 57 Ohio St.3d 77 ("NBC II"). See, also, State ex rel. Multimedia, Inc. v. Whalen (1990), 48 Ohio St.3d 41. In the case sub judice, the respondent has provided to the relator for inspection one hundred and eight records. The respondent, however, claims that thirteen records are excepted from disclosure. The Supreme Court of Ohio, with regard to the claim of exception from disclosure, has established that: When a governmental body asserts that public records are excepted from disclosure and such assertion is challenged, the court must make an individualized scrutiny of the records in question. If the court - 4 - finds that these records contain excepted information, this information must be redacted and any remaining information must be released. NBC I, supra, 38 Ohio St.3d 79, paragraph five of the syllabus. This court, upon an in camera inspection of the thirteen records provided by the respondent under seal, finds that records one through seven and ten through thirteen are excepted from disclosure because they constitute privileged attorney-client communication or were compiled in reasonable anticipation of litigation. State ex rel. Clark v. Toledo (1992), 62 Ohio St.3d 452. We further find that record eight is not exempt from disclosure and constitutes a public record since the respondent has failed to meet the burden of proving that the record is excepted from disclosure. NBC I, supra, 38 Ohio St.3d at 83-85; State ex rel. Multimedia, Inc. v. Whalen, supra; State ex rel. Collins v. Corbin (1992), 73 Ohio App.3d 410. Record nine is only partially exempt from disclosure and must be redacted prior to disclosure since the attached invoice from S.E.A. Inc. concerns a framework analysis dated June 14, 1995, which does not fall within any exception. The remaining content of record nine is exempt from disclosure under the attorney-client privilege exception. We now consider the issue of making copies of public records available at cost. In State ex rel. The Warren Newspapers, Inc. v. Hutson (1994), 70 Ohio St.3d 619, the Supreme Court of Ohio established that a governmental unit must make copies of public records available at actual cost: - 5 - Relator asserts in its third proposition that copies of public records should be available at actual cost without charges for labor or employee time. Relator further contends that the $5 initial charge for the first page of any requested document does not reflect actual copying costs. R.C. 149.43(B) provides that "[u]pon request, a person responsible for public records shall make copies available at cost, within a reasonable period of time." Although the court has not defined "at cost," it has been stated that a public office, in its sound discretion, may adopt a reasonable policy setting a fee for copies obtained from the public office, with the fee reflecting the actual costs involved in making a copy, unless the cost is otherwise set by statute. 1989 Ohio Atty.Gen.Ops. No. 89-073; cf. State ex rel. Nelson v. Fuerst (1993), 66 Ohio St.3d 47, 48, 607 N.E.2d 836, 838, where the court referred in dicta to "reasonable cost" in a public records case. Since the General Assembly could have, but failed to, specify "reasonable cost," we hold that R.C. 149.43(B) means "actual cost." Id., at 625. Neither the relator nor the respondent has demonstrated that the charge of 25 cents per page constitutes the actual cost of creating a copy of a public record. Thus the relator is not entitled to a writ of mandamus with regard to the cost of making a copy of a public record. See, State ex rel. Karen Blair v. Cuyahoga County Public Library (Jan. 8, 1996), Cuyahoga App. No. 68981, unreported, at 3. However, as in Blair, this court declines to sanction a charge of 25 cents per page for a copy of a public record. The respondent may charge only the actual cost. Finally, we deny the relator's request for attorney fees as made pursuant to R.C. 149.43(C). We find no evidence of bad faith on the part of the respondent. The respondent partially complied with the relator's request for public records and - 6 - further presented a reasonable legal argument for refusing to release the remainder of the requested information. The relator's request for attorney fees is denied. Accordingly, we partially grant the relator's petition for a writ of mandamus. Records one, two, three, four, five, six, seven, ten, eleven, twelve and thirteen are excepted from disclosure. Record eight shall be disclosed to the relator. Record nine, as redacted pursuant to our previous analysis, shall be disclosed to the relator. Because all the parties possess the right to appeal from this judgment and because public records cases pose unique problems, it is imperative that the confidentiality of the records be preserved until the parties either exhaust their appeals or agree to end the litigation. In order to preserve the status quo, this court orders that all submitted records be resealed. Upon exhaustion of the appellate process or upon settlement of litigation, the respondent shall deliver to the relator all non-exempt records with pertinent redactions. Costs to relator and respondent. Writ granted in part. DYKE, J., and DAVID T. MATIA, J., CONCUR. .