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10. Litigation expenses

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  • California

    The court "shall award costs and reasonable attorney fees" to the plaintiff should the plaintiff prevail in proceedings to compel disclosure of public records pursuant to CPRA. Cal. Gov't Code § 6259(d). 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 1053Galbiso 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).

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  • Massachusetts

    Court costs are available but are normally nominal. The statute does not provide for awards of attorneys' fees and they are also not available under a private attorney general theory. See Pearson v. Board of Health of Chicopee, 402 Mass. 797, 525 N.E.2d 400 (1988). However, if record custodian's defenses are insubstantial or frivolous, court has authority to award attorneys' fees. G.L. c. 231 § 6F. Pearson, supra.

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  • Texas

    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).

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  • Wisconsin

    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).

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