Skip to content

12. Settlement, pros and cons

Posts

  • Alaska

    The usual considerations that go into settling rather than litigating disputes will often come into play with respect to issues relating to access to public records. It is difficult to underestimate the benefits of establishing firmly in public officials' minds the fact that their delays or refusals in providing public records will be dealt with aggressively.  In the past, this position has been made credible by Alaska law providing for recovery of attorneys' fees for public interest litigants, and sheltering unsuccessful requesters from having to pay fees and costs to the other side.  This “public interest” exception to Alaska’s unusual “loser pays” rule that allows prevailing litigants in most cases to recover costs and part of their fees from the non-prevailing side was helpful both in reducing the risk to those seeking access to records, and increasing the exposure of those who resist providing access to public records. The legislature eliminated this exception favoring public interest litigants (which presumptively included news media seeking access to records or meetings) in 2003, and this statute was upheld by the Alaska Supreme Court in 2007 (see Open Records Guide, section IV.D.9 infra). This has dramatically changed the analysis of pros and cons that must be made when contemplating litigation, because news organizations and citizens bringing suits seeking access to public meetings and records in Alaska now not only cannot recover their full fees from a government agency found to have been in the wrong, but also must pay attorney fees to the government, or potentially to other parties involved, if they lose.

    Also, the process of administrative appeals and litigation is burdensome, both in terms of financial resources and also the emotional energy and drain on personnel and other resources involved in such efforts.  As result, the prudent course may often be to find reasonable compromises that enable a party seeking records to obtain the gist of what is being sought, if not everything possible. Such compromises are particularly appealing where there is a significant risk of establishing unfavorable precedent.  For example, in a high profile situation involving requests by multiple news media for all e-mails to and from Sarah Palin during her tenure as Alaska governor, initial estimates were that compliance with the request would result in search and copying fees amounting to many millions of dollars.  This was due in part to the need to search the e-mail accounts of all 16,000 state employees. The parties agreed to limit the search to the accounts of the fifty employees most likely to contain relevant documents. (This netted 22,000 pages of documents from the relevant period, made available for copying charges of $725 per set.)

    view more
  • Arizona

    (This section is blank. See the point above.)

    view more
  • Arkansas

    As is the case in any litigation, settlement of an FOIA suit may be advisable under some circumstances, and a requester may be able to obtain the desired records without litigation. One consideration is whether an appeal might set an adverse precedent. In FOIA cases the Arkansas courts have generally struck the balance in favor of disclosure.

    view more
  • California

    Settlement is always an option that should be explored if the circumstances are appropriate. Usually, settlement discussions will involve the extent of redaction or deletion the agency wants to make to the public records in question prior to disclosure. If time is of the essence and it is a matter of "all or nothing," i.e., the documents would not be useful if any redactions are made and the agency is not willing to provide the copies of the records without the deletions, then entering into settlement discussions is not a viable option. The risk of incurring the requester's attorney fees and costs should the requester prevail in a lawsuit also can be a strong incentive for an agency to settle.

    view more
  • Colorado

    Not applicable.

    view more
  • Delaware

    Settlement is usually not appropriate because a court may award attorneys' fees. In an action by a private citizen seeking disclosure of legal fees paid by a county for public employees who had been the targets of a federal investigation, the court granted mandamus to enforce a settlement freely entered into by the parties regarding the disclosure of information. Mellv. New Castle County, 2004 WL 1790140 (Del. Super. Aug. 4, 2004).

    view more
  • District of Columbia

    The dearth of reported cases in the District and anecdotes from reporters suggest that most disputed requests are settled through the Mayor's (now the Office of the Secretary's) FOIA officer. The obvious point is that settling has no precedential value for other similar disputes that arise, and it may be worthwhile to establish clear rules for new and potentially highly contested areas.

    view more
  • Georgia

    Agencies are sometimes amenable to settlement of public records disputes to avoid precedent-setting litigation or injunctions or to avoid the payment of litigation costs and fees.  The Attorney General’s Open Government Mediation Program (http://law.ga.gov/open-government-mediation-program) can be helpful in facilitating such settlements by promoting agreements designed to ensure future compliance, offering proactive training, etc.

    view more
  • Hawaii

    Settlement is always preferable as it results in quicker access to records. However, no court precedent will be established securing future access to the same kinds of records. Also, since open records cases are granted priority in the courts and since the party seeking to prevent disclosure bears the burden to justify nondisclosure, following a general policy of favoring settlement may not always best serve media plaintiffs' interests. The UIPA's provisions allowing recovery of attorneys' fees also mitigate against settlement of valid cases when a court ruling might place an intransigent agency on notice regarding the need to change its records handling policies. Note that the court may award attorneys' fees against any party filing frivolous suits concerning personal records. Haw. Rev. Stat. § 92F-27(d).

    view more
  • Idaho

    There are no particular pros or cons to settlement of actions to enforce a right to inspect and copy a public record, other than would be present in any other type of litigation.

    view more
  • Indiana

    Litigation is expensive and often takes years to resolve. While the award of attorney fees is automatic if the plaintiff substantially prevails and sought and received an informal inquiry or an advisory opinion from the Public Access Counselor before filing suit, an award of attorney fees is discretionary for prevailing defendants. Ind. Code § 5-14-3-9(i). It is always advisable to explore settlement, because that will enable the requester to get the record sooner rather than later.

    view more
  • Iowa

    Usually advisable but rarely a realistic option. There is little room for bargaining if the only acceptable resolution is allowing one to inspect and copy the records which the government refuses to produce.

    view more
  • Kentucky

    The public agency may have an incentive to settle the case in order to escape possible attorney fees and fines or to avoid a binding precedent being created for future cases.

    view more
  • Maine

    No particular factors apply. In some instances settlement may be achieved by an agreement to provide a redacted set of records if the information giving rise to non-disclosure can be segregated from public information in the requested records. Alternative dispute resolution is not mandatory in FOAA cases.

    view more
  • Maryland

    Settlement may expedite receipt of the records. Otherwise, the applicant may not gain access to the records until resolution of the lawsuit. On the other hand, if the applicant's entitlement to certain records is unclear, a court ruling may be desirable for future course of action.

    view more
  • Michigan

    Not specified.

    view more
  • Montana

    The statutory provision authorizes recovery of attorney’s fees in connection with an access challenge either to obtain documents or to assure an open meeting. § 2-3-221, Mont. Code Ann. The authorization is discretionary, and a district court is not obliged to award the fees to the prevailing party. Although fees are generally awarded, see In Re Investigative Records v. City of Columbus, 272 Mont. 486, 901 P.2d 565 (1995) for example of a case where they were not. The Montana Supreme Court, in Pengra v. State of Montana, 302 Mont. 276, 14 P.3d 499 (2000), considered the issue of fees where an individual claims a privacy right and the state purports to take no position but nonetheless withholds the document. The Court held that Pengra failed to establish that his and his minor daughter's rights to privacy clearly outweighed public's right to know what costs it incurred in settlement agreement, and that legal publication was not entitled to prevailing party attorney’s fees.

    In better than half of the petitions filed, the record holder will provide access rather than run up attorney’s fees as well as increase the exposure to paying the requester's attorney’s fees. Therefore, settlement is not only a possibility but a likelihood in many cases.

    Obviously, as in any other judicially construed constitutional provision, if a case is good on its facts and the custodian continues to deny access, the case should be considered one in which no settlement discussion should be had. Rather, it may be a case which should be taken to the Supreme Court in order to resolve issues upon which there is no present law. If there is no clear right of privacy at issue, the case should be taken to the Supreme Court asking for narrowly drawn criteria with respect to the right of privacy as it relates to document access.

    view more
  • Nebraska

    Not addressed.

    view more
  • Nevada

    There are no provisions in the NPRA applicable to settlement.

    view more
  • New Hampshire

    The Statute does not address this issue.

    view more
  • New Jersey

    Settlement or compromise of a records request is often desirable, particularly where an adverse result could bar future access. Settlement often takes the form of partial satisfaction of the request or redacted copies of the records. Any settlement should of course, address the issue of counsel fees as part of the settlement.

    Courts apply the catalyst theory to settlements involving OPRA denials in order to determine which party is the prevailing party. The catalyst theory consists of a two part test: (1) there must be a factual causal nexus between the plaintiff's litigation and the relief ultimately achieved; in other words, the plaintiff's efforts must be a necessary and important factor in obtaining the relief, and (2) it must be shown that the relief ultimately secured by plaintiffs had a basis in law. A plaintiff is considered a prevailing party when actual relief on the merits of the claim materially alters the relationship between the parties by modifying the defendant's behavior in a way that directly benefits the plaintiff. The form of the judgment is not entitled to conclusive weight; rather, courts must look to whether a plaintiff's lawsuit acted as a catalyst that prompted defendant to take action and correct an unlawful practice. A settlement that confers the relief sought may still entitle plaintiff to attorney's fees in fee-shifting matters. See, Mason v. City of Hoboken, 196 N.J. 51 (2008).

    view more
  • New Mexico

    The revisions of the 1993 law which provide a presumption of openness and put the burden of justifying secrecy on the public body and most significantly the attorneys' fee provisions and damages may provide significant incentives in settlement discussions.  All reported or known settlements to date have required specific compliance procedures and almost universally have required payment of all or some portion of the attorneys' fees and costs.

    view more
  • North Carolina

    Although the Public records law provides that actions brought shall be set down for immediate hearing, experience has proven that there often still is a several-month delay in court action. Therefore, if an out-of-court resolution can be reached, it likely will be a faster route to obtaining records. In the experience of the NCPA, however, few public agencies have, in the middle of a dispute, reversed their decision of whether a record was public.

    view more
  • North Dakota

    The open records law does not address settlement.

    view more
  • Ohio

    The pros and cons of settlement depend on the circumstances of the case and the relative likelihood of success.

    view more
  • Oklahoma

    If a dispute exists, a settlement which results in the release of the records in a more timely manner is in the best interest of the media. However, this should be weighed against the extent to which the record might not be produced in its entirety in a compromise settlement.

    view more
  • Oregon

    If the material requested is time sensitive, it may be that the requester will be satisfied with some but not all materials. Settlement may be attractive to public bodies because the Oregon system strongly favors disclosure of records, and attorneys’ fees will be awarded if the public body loses but will not be awarded if the body wins. The largest factor influencing settlement from the requester’s standpoint is the delay involved in trying a Public Records case and its possible appeal.

    view more
  • Rhode Island

    Often in practice when a person seeking disclosure informs the Attorney General of the withholding, the Attorney General, if appropriate, will issue an informal opinion advising the agency to make the records public. The practice of the Attorney General has been to refrain from filing a complaint where the particular agency has not been involved in prior violations and/or where the agency has demonstrated a good faith intention to comply with the APRA.

    view more
  • South Carolina

    As in most litigation, a settlement is appropriate in a suit under the act because it brings a certain outcome, provides for a quicker resolution of the dispute and in most cases reduces costs. In several instances the public body settled the same day the suit was brought thus giving rise to the suspicion that the body's attorney had not known of the body's response to a request until the suit was filed. Typically a suit over a request for records can be resolved by some compromise on the scope of redaction or the timing of the release of the information. Of course, some public bodies are so recalcitrant it is necessary to take the litigation to its conclusion.

    view more
  • South Dakota

    Depends entirely on merits of specific case and value of case as precedent.

    view more
  • Tennessee

    Given the large number of exceptions to the Act and the fact that there is little or no court interpretation for most exceptions, and given that courts sometimes interpret statutes and rules to find exceptions that were not previously understood to exist, it may be advisable to compromise open records disputes when the custodian is willing to provide some of the records requested.

    view more
  • Texas

    Nothing specific in the Act makes settlement more or less attractive, although the party that loses in court may be ordered to pay the prevailing party’s costs of litigation and reasonable attorney fees. Tex. Gov’t Code § 552.323. Settlement considerations depend entirely on the situation involved. If the Attorney General enters into a proposed settlement that all or part of the information made the subject of the suit should be withheld, and if the requestor has not intervened, then the Attorney General must notify the requestor of his or her right to intervene and contest the withholding. Tex. Gov’t Code § 552.325(c). In doing so, the Attorney General must comply with the notice requirements of Section 552.325(c).

    view more
  • Utah

    Not addressed.

    view more
  • Vermont

    Not specified.

    view more
  • Virginia

    Settlement of disputes under the Act, like settlement of other disputes, is encouraged. Settlement should be without prejudice to future assertions of rights under the Act.

    view more
  • Washington

    Whether settlement of a public records request is desirable depends on the nature of the request and the requester’s goals, among other things.  If the material requested is time-sensitive, it may be practical for the requester to narrow the request or accept some redactions in exchange for obtaining the critical records quickly.  Settlement also may make sense in order to avoid the expense or delay of litigating against an agency, or against a third-party seeking to enjoin the request. Settlement discussions should be informed by the broad pro-disclosure policy of the PRA, and by case law awarding attorneys’ fees and (sometimes steep) statutory penalties for wrongful non-disclosure. On the other hand, fees and penalties are not available to requesters when the agency prevails, or when the litigation is brought by a private third-party.

    view more
  • West Virginia

    At some point in an FOIA suit, particularly if the inevitable delay renders the request moot, it may seem the cost of continuing the proceeding exceeds the value of any possible victory. In other cases, it may become apparent that a full victory is unlikely. In either circumstance, the possibility of a settlement should be considered.

    In determining whether settlement is advisable, the two most important factors to consider are (a) the likelihood that the same issues will arise in future access requests, and (b) the likelihood the court ultimately will rule in your favor of the requester if she persists.

    A formal settlement which includes the public body's agreement to disclose certain information will have some practical precedential value, at least for other requests made of the same body, particularly since the terms of every such settlement agreement becomes a public record. Syl. Pt. 5, Daily Gazette v. Withrow, 177 W. Va. 110, 350 S.E.2d 738 (1986) (“A public official has a common law duty to create and maintain, for public inspection and copying, a record of the terms of settlement of litigation brought against the public official or his or her employee(s) in their official capacity.”). However, a favorable court decision obviously is much more likely to insure future requests are granted.

    Conversely, an unfavorable court decision will have a more detrimental effect than an unfavorable settlement. Unless one is prepared to appeal an adverse ruling by the circuit court, even a mediocre settlement agreement generally is preferable to an adverse ruling.

    view more
  • Wyoming

    Not addressed.

    view more