An Ohio high court ruled Tuesday to deny attorney fees to Anna Schiffbauer, a former student journalist who successfully sued her school, Otterbein University, in a landmark case establishing that Ohio private universities’ police forces are public entities and must release public records.
Schiffbauer, then news editor of student news site Otterbein360 and later a Student Press Law Center intern, filed suit against Otterbein in February 2014 after the university police denied her access to police reports, which, as the high court ruled in May, are public records even at a private institution. The court issued a peremptory writ — a legal fast-track measure that requires no oral arguments to be heard — ordering the police department to release the records.
Schiffbauer’s attorney, Jack Greiner, said that in his experience with public records cases, it’s more common for judges to deny attorney fees than to grant them.
“I think they feel that [granting attorney fees] kind of penalizes the public entity, or, in this case, Otterbein,” he said.
But in this case, the denial surprised him. The peremptory writ suggested that the case was, essentially, a no-brainer — that it was obvious to the judges that the case didn’t need to go any further, he said.
“That’s a pretty extraordinary remedy,” Greiner said. “I’ve been doing this work for 20 years and have never gotten one.”
Dissenting justice William O’Neill contended that Schiffbauer was entitled to more than $15,000 in attorney fees and $1,000 in statutory damages, the maximum amount of damages available under Ohio law. He noted in his dissent that courts can deny attorney fees in cases where the public office “reasonably would have believed that refusing to produce the requested records would not violate the [Public Records Act]” — but the peremptory writ would have made the police department aware of the requirement to release the records, so this exception doesn’t apply, O’Neill wrote.
“It is disingenuous for this court to now find that the Otterbein University police department was reasonable in its belief that it was not a public office subject to the PRA,” he wrote. “The whole purpose of awarding attorney fees and statutory damages in public-records cases is to encourage compliance with the law and to compensate those who have had to file a lawsuit to force compliance.”
O’Neill wrote that the May ruling “settles a major question in public-records law.”
The case set a significant precedent for future legal challenges involving private universities and public records, Greiner said. ESPN is currently in a legal battle with Notre Dame to get similar police records.
“Justice O’Neill recognized what an important decision this is and the impact it’s going to have statewide on private universities that maintain a police force,” he said.
Greiner discussed this case and its implications in an interview with SPLC’s executive director Frank LoMonte on the August SPLC podcast.