13. Settlement, pros and cons

Settlement of records access cases in Alabama is often possible and desirable. Denial of access to public records is usually not a popular position for a public official to take in this traditionally populist state; therefore, public officials are sometimes willing to settle in order to avoid the publicity of further litigated controversy. The requester often benefits by a consensual resolution of the controversy because it is less expensive, and more certain, than trial. See, e.g., Moore v. Westover Water Auth., No. CV-96-000810 (Cir. Ct. Shelby Cnty.) (by agreement of the parties, the Water Authority's employment agreements were produced at the request of The Birmingham News, and a portion of the newspaper's attorneys' fees were paid); Birmingham News Co. v. Swift, CV 88-1390 G (Cir. Ct. Montgomery Cnty. Sept. 7, 1988) (by stipulation of parties, State Director of Finance enjoined to preserve certain telephone records of State Legislature and to permit inspecting and copying of said records); Birmingham News Co. v. Birmingham Racing Comm’n, CV 87-501-622 MC (Cir. Ct. Jefferson Cnty., Equity Div., Aug. 28, 1987) (by stipulation of parties, resolution adopted giving access to certain financial records of Birmingham Racing Commission); Birmingham News Co. v. Deutcsh, CV 85-504-132 JDC (Cir. Ct. Jefferson Cnty., Equity Div., Aug. 19, 1986 (by consent of parties, access to arrest reports, with agreed-to deletions, ordered). If possible, settlement of a public records case should include agreement to a consent order by the court, as in the above-cited cases.

Settlement following initiation of litigation saves time and resources and affords requesters an opportunity to obtain records sooner than would be required to litigate a case to final judgment. Nevertheless, litigating a case to a successful judgment may discourage the agency, or other agencies, from taking the same denial position in the future. In either event, the requester should attempt to recover any attorneys’ fees incurred in the litigation as a condition of settlement as this often is the most effective means of preventing an agency from denying records on the same basis going forward.

Properly structured open records litigation settlements can be effective in forcing repeat violators to make long term improvements to their transparency practices. See, e.g., S. Deere, Atlanta to Vote on Transparency, The Atlanta Journal-Constitution (Sept. 14, 2018) (to correct what news organizations described as “a pervasive culture of non-compliance” with the Georgia Open Records Act, the City of Atlanta agreed to consider an ordinance creating a transparency officer, requiring mandatory annual open records training for employees and establishing a public website to track open record requests).

As in any civil litigation, settlement is always possible if the parties are so minded. Unless the requester is interested in establishing legal precedent with respect to a particular kind or kinds of record, a settlement where the documents sought, or the bulk of them, are produced is normally quicker and cheaper than protracted litigation.

Settlement discussions should be pursued prior to initiating litigation.  Once litigation is initiated, while settlement is not impossible, it is generally unlikely.  Any settlement after a lawsuit is commenced should include counsel fees and costs.  A pro for settlement is that it removes any uncertainty as to the outcome.  A con for settlement is that if the matter presents a novel issue, settlement will preclude a court decision on the issue that could impact future cases.

Each case and client is different.

For a number of reasons, including the lack of an expedited hearing mechanism, viable settlements should be pursued.

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).

Settlement at an early stage is advisable if the records sought can be obtained. Vermont courts generally display a conservative attitude toward court awards of attorneys' fees, and it may be difficult for a person suing successfully to recover all fees.  See Prison Legal News v. Corr. Corp. of Am., No. 332-5-13, 2015 Vt. Super. LEXIS 91, *5-7 (Wash. Super. Ct. Sept. 1, 2015) (awarding attorneys’ fees in the amount of 40% of fees claimed).

Given litigation costs and the unpredictability of outcomes, it is always worthwhile to seek a practical resolution of disputes out of court.

Once access cases reach the stage of court action, they are rarely settled, although claims for attorney’s fees are sometimes compromised.