holding that exceptions to the Public Records Act are not in the nature of confession and avoidance because the assertion of an exception does not admit the allegations are true, i.e. it does not admit that the requested records are “public”
How later courts described this case
- holding that exceptions to the Public Records Act are not in the nature of confession and avoidance because the assertion of an exception does not admit the allegations are true, i.e. it does not admit that the requested records are “public”
- stating that “[a]n affirmative defense is waived under Civ.R. 12(H), unless it is presented by motion before pleading pursuant to Civ.R. 12(B), affirmatively in a responsive pleading under Civ.R. 8(C), or by amendment under Civ.R. 15”
- recognizing that an affirmative defense is “a new matter [that], assuming the complaint to be true, constitutes a defense to it”
- finding in a mandamus action that disclosure of resumes for police chief required under Ohio Rev.Code § 149.43
Written by the judges who cited it.
The opinion
Douglas, J.,
concurring. I concur with the majority in the granting of a writ and the allowance of attorney fees.
While the majority has reached the right conclusion regarding the award of attorney fees, the majority does so, once again, with the wrong reasoning. I would grant attorney fees for the reasons expressed in the well-reasoned dissent of Justice Sweeney in State ex rel. Pennington v. Gundler (1996), 75 Ohio St.3d 171 , 661 N.E.2d 1049 , and for the reasons I have expressed in both concurrences and dissents in a number of these public record cases. Unless and until we decide that attorney fees are mandatory (thereby following the statute), this “cottage industry” of public record litigation will continue unabated, since there is no mandatory penalty for custodians of public records refusing to release such records.
It is encouraging that there now appear to be three solid votes on this court to enforce the law as written. When we finally do so, we will, I believe, see a drastic reduction of the number of open records cases coming before this and other courts. Much of the game of avoidance and delay will disappear and public records will become available upon request — not years later, if ever.
Resnick and F.E. Sweeney, JJ., concur in the foregoing concurring opinion.