COURT OF APPEALS, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72872 STATE OF OHIO, EX REL : RICHARD E. HERTHNECK : PETITION FOR WRIT OF MANDAMUS : RELATOR : MOTION NO. 89737 : v. : JOURNAL ENTRY AND OPINION : JOSEPH GAMBINO, : STRONGSVILLE LAW DIRECTOR : : RESPONDENT : DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 18, 1997 JUDGMENT: DENIED. DATE OF JOURNALIZATION: APPEARANCES: For Relator: Richard E. Herthneck, Esq. Burney & Herthneck 160 Plaza West Building 20220 Center Ridge Road Rocky River, OH 44116 For Respondent: Joseph A. Gambino, Esq. 11221 Pearl Road Strongsville, OH 44136 MATIA, P.J.: On July 18, 1997, the relator, Richard Herthneck, an attorney representing Donald Senkovic, commenced this public records -2- mandamus action pursuant to R.C. 149.43 against the respondent, Joseph Gambino, the Prosecutor for the City of Strongsville, to compel the release of all police reports and witness statements relating the an assault by Jeffrey Kerr on Donald Senkovic. Mr. Herthneck avers that in January 1997, he wrote to Mr. Gambino and requested the police records. He further avers that in February 1997, he spoke with Mr. Gambino who assured him that he would receive the records after Mr. Kerr's arraignment. However, Mr. Herthneck never received any of the records despite the conclusion of Mr. Kerr's criminal case and despite repeated letters requesting the records. On August 19, 1997, Mr. Gambino moved to dismiss this mandamus action or in the alternative for summary judgment. This motion attacked the form of Mr. Herthneck's complaint because it was not captioned State ex rel. as required by R.C. 2731.04 and because it did not contain a specific statement of fact upon which the claim is based. The motion also argued that the Strongsville Police Department is the custodian of the records, and thus, the proper respondent, not Mr. Gambino. The motion further submitted that Mr. Gambino had no duty to compile or mail records to anyone and that Mr. Herthneck had not properly complied with R.C. 149.43(B) by seeking inspection and copying at the Strongsville Police Department. On September 18, 1997, Mr. Herthneck moved for attorney's fees. In this motion Mr. Herthneck stated that in August 1997, Lieutenant Craft of the Strongsville Police Department contacted -3- him and offered him the records and that within ten days of mailing a request the lieutenant sent him the records. Thus, pursuant to R.C. 149.43(C) and State ex rel. Pennington v. Gundler (1996), 75 Ohio St.3d 171, 661 N.E.2d 1049, Mr. Herthneck requested $500.00 for attorney's fees. In Pennington the Supreme Court of Ohio ruled that attorney's fees may be awarded when the mandamus action acts as a necessary catalyst to cause the custodian to voluntarily release the records. However, Mr. Herthneck did not establish how he computed the $500.00 figure pursuant to the guidelines in DR 2- 106. Mr. Gambino never replied to the motion for attorney's fees. Therefore, the parties have resolved the public records issues, and the only issue which remains is the motion for attorney's fees. For the following reasons, this court denies that motion. In Sta te ex rel. Fox v. Cuyahoga County Hospital System (1988), 39 Ohio St.3d 108, 529 N.E.2d 443, the Supreme Court of Ohio ruled that attorney's fees in public records mandamus actions are not mandatory, but discretionary. Because the court viewed such an award as punitive in nature, a relator must demonstrate a sufficient benefit to the public to warrant the award. Furthermore, a court may consider the reasonableness of the respondent's refusal to comply. Recently, the supreme court has been more liberal in awarding attorney's fees. The court has indicated that courts should award fees as a necessary means to ensure that custodians promptly release the public's records to the public. Pennington, State ex rel. Gannett Satellite Information -4- Network v. Petro (1997), 80 Ohio St.3d 261; State ex rel. Police Officers for Equal Rights v. Lashutka (1995), 72 Ohio St.3d 185, 648 N.E.2d 808 and State ex rel. The Plain Dealer Publishing Company v. City of Cleveland (1996), 75 Ohio St.3d 31, 661 N.E.2d 187. Nevertheless, the supreme court has continued to adhere to Fox as the rule for awarding attorney's fees. State ex rel. Multimedia, Inc. v. Snowden (1995), 72 Ohio St.3d 141, 647 N.E.2d 1374; State ex rel. The Logan Daily News v. Jones (1997), 78 Ohio St.3d 322, 677 N.E.2d 1195; and Pennington. In the present case Mr. Herthneck has not established a sufficient public benefit to warrant an award of attorney's fees. The pleadings and their attachments indicate that Mr. Herthneck sought these records not for public use or distribution but for use in a private civil lawsuit. Moreover, the respondent had reasonable grounds for not complying with the request. As Mr. Gambino noted, there is no duty under R.C. 149.43 to mail public records to anyone. There is also some doubt as to whether Mr. Herthneck complied with R.C. 149.43(B) by seeking the records from their actual custodian at the site where they are kept. More importantly, this court has serious reservations about whether the records were public records. Mr. Herthneck sought police records and witness statements. Pursuant to State ex rel. Steckman v. Jackson (1994), 70 Ohio St.3d 421, 639 N.E.2d 83, information assembled by law enforcement officials in connection with a probable or pending criminal proceeding is, by the work product exception found in R.C. 149.43(A)(2)(c), excepted from required -5- release as said information is compiled in anticipation of litigation. All records relating to criminal investigations, except routine offense or incident reports, are exempt from disclosure. Although without an in camera inspection of the records this court cannot determine exactly how many of the records would have been released, it would appear from the pleadings and their attachments that most, if not all, of the requested records would have been exempt. Pennington, the case upon which Mr. Herthneck relies, is distinguishable and not controlling. In that case a clerk refused to release municipal court records; the supreme court emphasized the very public nature of these records and the dereliction of duty in not releasing them. A person should not be required to expend time, money and effort in a mandamus action to obtain such records; thus, attorney's fees were proper. However, the inverse applies in the present case. Attorney's fees need not be awarded for the release of nonpublic records. Additionally, Mr. Herthneck brought this mandamus action pro se, in his own name. The Supreme Court of Ohio has repeatedly held that a pro se litigant is not entitled to attorney's fees. State ex rel. McGowan v. Cuyahoga Metropolitan Housing Authority (1997), 78 Ohio St.3d 518, 678 N.E.2d 1388; State ex rel. Thomas v. Ohio State University (1994), 71 Ohio St.3d 245, 643 N.E.2d 126; and State ex rel. Fant v. Mengel (1991), 62 Ohio St.3d 197, 580 N.E.2d 1085. Thomas is particularly relevant; the court reasoned that even though Mr. Thomas was an attorney, it would not award -6- attorney's fees to him because it had consistently denied such fees to pro se litigants. Accordingly, the mandamus action is denied as moot. Relator to pay costs. The court also denies the motion for attorney's fees. DAVID T. MATIA, PRESIDING JUDGE .