10. Litigation expenses

The court "shall award court costs and reasonable attorney’s fees" to the plaintiff should the plaintiff prevail in proceedings to compel disclosure of public records pursuant to CPRA. Cal. Gov't Code § 7923.115. The award of costs and fees is mandatory. Bernardi v. Cty. of Monterey, 167 Cal. App. 4th 1379, 1393, 84 Cal. Rptr. 3d 754 (2008). “The costs and fees shall be paid by the public agency of which the public official is a member employee and shall not become a personal liability of the public official.” Id.; cf. Pacific Merchant Shipping Ass’n v. Bd. of Pilots Comm’rs, 242 Cal. App. 4th 1043, 1061, 195 Cal. Rptr. 3d 358 (2015) (upholding fee award against port agent and holding that state officers acting in official capacity can be liable for fees under the CPRA).

Because the CPRA limits the award of attorneys fees to requesters who prevail after “seeking a judicial determination of a public agency’s obligation to disclose records in the event the agency denies a request by a member of the public,” at least one court has held that a requester is not entitled to attorneys fees under the CPRA after successfully litigating against a party attempting to prevent an agency from disclosing public records.  Nat’l Conference of Black Mayors v. Chico Cmty. Publ’g, Inc., 25 Cal. App. 5th 570, 575, 236 Cal. Rptr. 3d 1 (2018) (quoting Filarsky v. Superior Court, 28 Cal. 4th 419, 423, 426, 121 Cal. Rptr. 2d 844, 49 P.3d 194 (2002)). In this reverse CPRA context, the court reasoned that actions to prevent disclosure of public records do not arise under the CPRA nor do they seek to achieve the purpose of the Act—"to compel a public agency to disclose records it refuses but is obligated to disclose.” Id.  However, fee awards against the party bringing suit to prevent disclosure of public records may be awarded under the fee-shifting provisions of the private attorney general statute.  See Cal. Civ. Proc. Code § 1021.5; see, e.g., Pasadena Police Officers Ass’n v. City of Pasadena, 22 Cal. App. 5th 147, 160, 166, 231 Cal. Rptr. 3d 292 (2018) (holding newspaper entitled to recover attorneys fee under attorney general statute for all stages of litigation, including appeal, from police union and officials who tried to prevent disclosure of public record).

Under the CPRA, a plaintiff prevails if the litigation motivated the defendant to release requested records. Bd. of Pilots, 242 Cal. App. 4th at 1053; Galbiso v. Orosi Pub. Util. Dist., 167 Cal. App. 4th 1063, 1085, 84 Cal. Rptr. 3d 788 (2008); Los Angeles Times v. Alameda Corridor Transp. Authority, 88 Cal. App. 4th 1381, 1391, 107 Cal. Rptr. 2d 29 (2001); Motorola Commc’n & Elecs. Inc. v. Dep’t of Gen. Servs., 55 Cal. App. 4th 1340, 64 Cal. Rptr. 2d 477 (1997) (timing alone may be sufficient to prove that plaintiff is prevailing party but where agency's delay could be attributed to uncertain nature of request and fact that agency's attorney on vacation, plaintiff did not show disclosure was motivated by lawsuit).

A requester may satisfy this test even if the litigation resulted in disclosure of less than all of the documents sought, as long as disclosure is not “minimal or insignificant.” Bd. Pilot, 242 Cal. App. 4th at 1053; see, e.g., Los Angeles Times, 88 Cal. App. 4th at 1391-1392 (plaintiff was prevailing party where court ordered disclosure of one of two documents sought); Bernardi, 167 Cal. App. 4th at 1396 (awarding fees to plaintiff despite county’s argument that petition was only partially successful, obtaining one-third of the documents requested).

An order compelling the disclosure of records, however, is not necessary. Beth v. Garamendi, 232 Cal. App. 3d 896, 901-02, 283 Cal. Rptr. 829 (1991) (judicial determination on merits not necessary to an award of attorneys' fees under statute). Where there is no order of disclosure, courts apply the catalyst theory where “[a] plaintiff is considered the prevailing party if his lawsuit motivated defendants to provide the primary relief sought or activated them to modify their behavior, or if the litigation substantially contributed to or was demonstrably influential in setting in motion the process which eventually achieved the desired results” (citations omitted). Id.; see, e.g., Bd. of Pilots, 242 Cal. App. 4th at 1056 (awarding fees under catalyst theory where litigation resulted in a holding that later caused public official to disclosure records he had previously withheld before litigation though the litigation did not result in an order compelling disclosure of any records); San Diegans for Open Gov’t v. City of San Diego, 247 Cal. App. 4th. 1306, 1321-22, 203 Cal. Rptr. 3d 34 (2016) (holding declaratory relief action motivated city to look for and produce emails stored on its system where it had previously improperly narrowed the request to exclude such records without seeking clarification from the requester as required under Section 6253.1 of the Government Code).

The lesser standard may apply than the catalyst theory where the court orders some relief sought in the lawsuit or disclosure of some of the records. At least one court has refused to apply the catalyst theory’s higher standard (lawsuit motivates defendants to provide primary relief sought) and instead held that a plaintiff is successful “if it succeeds on any significant issue in the litigation and achieves some of the benefits sought in the lawsuit.” Garcia v. Governing Bd. of Bellflower Unified Sch. Dist., 220 Cal. App. 4th 1058, 1065-66, 163 Cal. Rptr. 3d 689 (2014) (order requiring district to provide written response stating whether there were other responsive records—even where, in large part, there were none—deemed sufficient evidence to support trial court’s determination that plaintiff “succeeded on a significant issue in the ligation and achieved some of the benefits sought”).

A law firm representing itself in a CPRA action brought to benefit a third-party client is entitled to recover its fees. Law Offices of Marc Grossman v. Victor Elementary, 238 Cal. App. 1010, 1014, 190 Cal. Rptr. 3d 86 (2015).

Courts have awarded multipliers in CPRA cases. For example, in Bernardi, the court approved a multiplier of 1.25 to enhance the lodestar amount of attorney fees “in recognition of counsel’s contingency fee risk and the significant delay in obtaining payment of attorney fees, as well as the unique issues presented.”  Bernardi, 167 Cal. App. 4th at 1399.

Orders either granting or denying attorney fees under Section 6259(d) are reviewable by appeal. Los Angeles Times, 88 Cal. App. 4th at 1388.

The CPRA also provides for recovery of fees from the plaintiff should the agency prevail and the court find that the lawsuit was “clearly frivolous.” Cal. Gov't Code § 6259(d). A frivolous action is one that is either “‘(A) totally and completely without merit or (B) [brought] for the sole purpose of harassing an opposing party.’” Crews v. Willows Unified Sch. Dist., 217 Cal. App. 4th 1368, 1381-82, 159 Cal. Rptr. 3d 484 (2013) (quoting Cal. Code of Civ. Proc. § 128.5) (holding that while petition lacked merit, action was not clearly frivolous within meaning of Section 6259(d)); Bertoli v. City of Sebastopol, 233 Cal. App. 4th 353, 376-77, 182 Cal. Rptr. 3d 308 (2015) (overturning trial court order awarding fees to agency despite characterization of request as overbroad).

Awards of attorney fees and costs are available following a D.C. FOIA action: “If a person seeking the right to inspect or to receive a copy of a public record prevails in whole or in part in such suit, he or she may be awarded reasonable attorney fees and other costs of litigation.” D.C. Code Ann. § 2-537(c).

A pro se requester (even one who is an attorney) who prevails in such an action, however, is not eligible to receive such fees. McReady v. Dep’t of Consumer & Regulatory Affairs, 618 A.2d 609, 612 (D.C. 1992).

To determine eligibility for a claim for attorney fees and costs under D.C. FOIA, courts apply a “prevailed in whole or in part” standard (in contrast to the “substantially prevailed” standard set forth in the federal FOIA). Riley v. Fenty, 7 A.3d 1014, 1020 (D.C. 2010). A party prevails in whole or in part under D.C. Code Ann. § 2-537(c) “when he demonstrates a ‘causal nexus . . . between the action [brought in court] and the agency’s surrender of information.’” Frankel v. D.C.  Office for Planning and Econ. Dev., 110 A.3d 553, 558 (D.C. 2015) (citing McReady, 618 A.2d at 616).

Even if this standard is met, however, the fee provision “is expressly permissive and contemplates a determination of both eligibility and entitlement.” Fraternal Order of Police, Metro. Police Dep’t Labor Comm. v. District of Columbia, 52 A.3d 822, 828 (D.C. 2012). Once a party is deemed eligible for attorney fees and costs, D.C. courts apply the same factors to assess entitlement as do federal courts under federal FOIA: “(1) the public benefit derived from the case; (2) the commercial benefit to the plaintiff; (3) the nature of the plaintiff's interest in the records; and (4) the reasonableness of the agency's withholding.” Id. at 829, 831-32 (citations omitted). These factors are not exclusive, and the trial court retains discretion to consider others. Id. at 832.

After a litigant shows he or she is both eligible and entitled to an award of fees and costs, he or she must finally show that the award requested is reasonable. Vining v. District of Columbia, 198 A.3d 738, 745 (D.C. 2018).

Court costs are available but are normally nominal. The statute was amended in 2016 and courts are now allowed to grant reasonable attorney fees under MGL c. 66, § 10(A)(c)-(d).

"[R]easonable attorneys’ fees, costs, and disbursements" will be awarded to any person who prevails in an action to compel disclosure under Mich. Comp. Laws Ann. § 15.240(6). If the complainant prevails in part, the court may use its discretion to award reasonable fees, costs, and disbursements, "or an appropriate portion." Mich. Comp. Laws Ann. § 15.240(6). Thus, the complainant is entitled to fees and costs if he or she prevails, and an award of fees and costs is discretionary if the complainant prevails in part. Walloon Lake Water Sys. v. Melrose Twp., 163 Mich. App. 726, 415 N.W.2d 292, 296 (1987).

A plaintiff who files an action pro se is not entitled to a mandatory award of attorney’s fees; however, such a person is entitled to recover his or her actual costs, exclusive of attorney’s fees. Laracey v. Fin. Insts. Bureau, 163 Mich. App. 437, 414 N.W.2d 909 (1987), Criticized by Omdahl v. W Iron Cnty.. Bd. of Ed. 271 Mich. App. 552, 556; 722 NW2d 691 (2006) (holding Laracey (1) “imputes to the Legislature a motivation that may or may not be correct” and (2) the creation of a broad rule is unnecessary and “casts too broad a net”); see also Mich. Tax Mgmt. Servs. Co. v. City of Warren, 437 Mich. 506, 473 N.W.2d 263, 265 (1991) (although fees and other expenses must be awarded to a requester who prevails completely, trial court has obligation to exercise its sound judgment in determining a reasonable fee); Tallman v. Cheboygan Area Sch., 183 Mich. App. 123, 454 N.W.2d 171 (1990) (public body not at liberty to choose how much it will charge; must compute charges according to statutory method). But see Easley v. Univ. of Mich., 178 Mich. App. 723, 728, 444 N.W.2d 820, 823 (1989) (because record below did not indicate that plaintiff prevailed, any award under FOIA was discretionary; trial court did not err in declining to award costs or sanctions because there was a "balance of unreasonableness as to both parties").

In order for an FOIA plaintiff to demonstrate that he or she has prevailed so as to be entitled to a mandatory award of costs and fees, the rule has been that plaintiff must demonstrate that prosecution of the action was necessary to and had causative effect on delivery or access to the documents in question. Walloon Lake, 415 N.W.2d at 296; see also Schinzel, 313 N.W.2d at 169 (citing Bredemeier v. Kentwood Bd. of Educ., 95 Mich. App. 767, 291 N.W.2d 199, 201 (1980)) (the test is whether the action was reasonably necessary to compel disclosure and whether the action had a substantial effect on the delivery of information to the plaintiff). However, the Michigan Court of Appeals has held that a strict application of the "prevailing party" rule is inappropriate where the litigation has been rendered moot by unilateral actions of the public body in disposing of requested materials. See Thomas v. City of New Baltimore, 254 Mich. App. 196, 657 N.W.2d 530 (2002) (fact that plaintiff's substantive claim under the FOIA was rendered moot by disclosure after plaintiff commenced the circuit court action not held determinative of plaintiff's entitlement to attorney’s fees and costs).

Because the cost provision was intended to encourage plaintiffs unable to afford the expense of litigation to obtain judicial review of wrongful denials, where such a plaintiff "is successful with respect to the central issue, that the requested materials were subject to disclosure under the FOIA, he or she has . . . prevailed" for purposes of mandatory attorney’s fees. Walloon Lake, 415 N.W.2d at 296.

Moreover, a defendant's good faith in a FOIA action has no bearing on a plaintiff’s claim for discretionary attorney’s fees where plaintiff has prevailed in part: "The appropriateness of the portion awarded is not to be measured by the good faith of the defendant or the novelty of the litigation, but rather by the amount of attorney’s fees, costs, and disbursements fairly allocable to the successful portion of the plaintiffs case." Kestenbaum v. Mich. State Univ., 414 Mich. 510, 565-66, 327 N.W.2d 783 (1982), quoted in Dawkins v. Dep't of Civ. Serv., 130 Mich. App. 669, 344 N.W.2d 43 (1983). As long as an action for disclosure of public records is initiated pursuant to the FOIA, the prevailing party's entitlement to an award of reasonable attorney’s fees, costs, and disbursements includes "all such fees related to achieving production of the public records." Meredith Corp. v. City of Flint, 256 Mich. App. 703, 715, 671 N.W.2d 101 (2003). "The fact that a portion of the requested attorney’s fees were incurred in a separate, related matter does not preclude recovery of that portion of the attorney's fees." Id.

Fees are also available where a court determines that a state agency has failed to comply with Mich. Comp. Laws Ann. § 15.241, which requires that state agencies publish and make available automatically a specified list of records. In such cases of noncompliance, "the court shall order the state agency to comply and shall award reasonable attorney’s fees, costs, and disbursements to the person commencing the action." Mich. Comp. Laws Ann. § 15.241(5). In Swickard v. Wayne Cty. Med. Exam’r, 196 Mich. App. 98, 102, 492 N.W.2d 497 (1992), aff'd, 438 Mich. 536, 475 N.W.2d 304 (1991), the court held that an award of attorney’s fees to a newspaper reporter who prevailed in his action was proper, even though the newspaper employer of the reporter actually paid the attorney.

Section 552.323(a) provides that in any suit brought under Sections 552.321 or 552.3215 "the court shall assess costs of litigation and reasonable attorney fees incurred by a plaintiff or defendant who substantially prevails," except that costs and fees may not be assessed if the court finds that the governmental body acted in reasonable reliance on a judgment or an order of a court, the published opinion of an appellate court, or a written decision of the Attorney General. Id.

In an action brought under Section 552.324, "the court may assess costs of litigation and reasonable attorney's fees." In exercising its discretion, "the court shall consider whether the conduct of the officer for public information of the governmental body had a reasonable basis in law and whether the litigation was brought in good faith." Id.

Costs assessed against a governmental body by the court run against the governmental body, not an individual office holder. McNamara v. Fulks, 855 S.W.2d 782, 786 (Tex. App.—El Paso 1993, no writ).

If the requester prevails in whole or in substantial part, the court shall in addition award reasonable attorney fees and other actual costs to the plaintiff. Wis. Stat. § 19.37(2); WTMJ Inc. v. Sullivan, 204 Wis. 2d 452, 458, 555 N.W.2d 140, 143 (Wis. Ct. App. 1996). But where the party is an attorney who represents him or herself no fees may be awarded. State ex rel. Young v. Shaw, 165 Wis. 2d 276, 477 N.W.2d 340 (Wis. Ct. App. 1991).