9. Availability of court costs and attorney's fees
The Alabama Open Meetings Act contains no reference to award of costs; therefore, Alabama Open Meetings Act cases are governed by Rule 54(d) of the Alabama Rules of Civil Procedure, which reads as follows: "Except when express provision therefor is made in a statute, costs shall be allowed as of course to the prevailing party unless the court otherwise directs."
Although the Alabama Open Meetings Act contains no provision for an award of attorneys' fees, at least one such award has been made under the current law, and one such award was made and upheld on appeal, under the former open meetings law. Later trial court and appellate decisions confirmed that such awards were sometimes appropriate in cases under the former open meetings law. See Citizens For Better Schs. v. Greene, CV 2007-932 (Cir. Ct. Jefferson Cnty., Ala. Mar. 19, 2008) (declaring vote null and void and imposing fines and awarding attorneys’ fees based on failure to post preliminary agenda in proper location); Bell v. Birmingham News Co., 576 So. 2d 669 (Ala. Civ. App. 1991) (upholding award of attorneys' fees; citizens of city benefited from action to stop an improper practice); Slawson v. Ala. Forestry Comm’n, 631 So. 2d 953, 959 (Ala. 1994) (stating that award of reasonable costs and fees in Open Meetings Law case "is appropriate when the trial court determines that a case will result in benefit to the general public"; remanded for determination by trial court); Tuscaloosa News v. Garrison, CV-99-408, Order (Cir. Ct. Tuscaloosa Cnty., Ala., Jan. 15, 2001) (granting portion of fees; case involved both public records and open meetings issues). But see Horn v. City of Birmingham, 718 So. 2d 691 (Ala. Civ. App. 1997) (affirming the trial court's judgment denying attorneys' fees on the ground that the "common benefit" was to a limited group or locale and not to the general public). In Calhoun County Commission v. Hooks, 728 So. 2d 625 (Ala. Civ. App. 1997), the trial court awarded the plaintiffs attorneys' fees under the "common benefit" theory. However, the Court of Civil Appeals reversed theportion of the judgment awarding attorneys' fees because, it found there had been no "evasive," "reprehensible," or "patently unlawful conduct" by the defendant, and the defendant had not acted in bad faith. Therefore, the court said, there was no equitable basis for "fee shifting." No other case in Alabama has required such a degree of conduct by the defendant when awarding attorney fees under the common benefit theory.
One hurdle in obtaining attorneys' fees in open meetings cases is section 14 of the Alabama Constitution of 1901. Section 14 provides for state immunity from civil suit and has been interpreted to extend to state agencies. In Ex parte Town of Lowndesboro, 950 So. 2d 1203, 1209 (Ala. 2006), the Alabama Supreme Court found that the state constitution precluded an attorney’s fee award to the plaintiffs in a declaratory judgment action that did not involve the open meetings act.
When an award of attorneys' fees is granted, it is not an "all-or-nothing" proposition. It is in the trial court's discretion to award a portion of the attorneys' fees. See Tuscaloosa News v. Garrison, CV-99-408, Order (Cir. Ct. Tuscaloosa Cnty., Ala., Jan. 15, 2001) (granting portion of fees; case involved both public records and open meetings issues).
Alaska may be the only state in the Union in which citizens who sue the government for access to public meetings or records have to pay the government if they lose. Alaska court rules provide that the prevailing party in a civil suit is entitled to recover its costs and a portion of its reasonable attorneys fees from the other side. See Alaska Civil Rule of Procedure 82 (fees) and Civil Rule 79 (costs). In cases in which the prevailing party recovers no money judgment—which will typically be the case in most cases in which the media are involved other than as defendants in a libel, invasion of privacy, or other tort suit—the presumptive fee award in a case that goes to trial is 30 percent of the prevailing party’s reasonable actual attorney’s fees which were necessarily incurred, and in a case resolved without trial, 20 percent. Ak. Civil R. 82(b). The court has discretion to vary presumptive fee awards based on consideration of any of nearly a dozen factors specified in the rule, including reasonableness of hourly rates, hours expended, number of attorneys used, and of claims and defenses pursued, the complexity of the matter, vexatious or bad faith conduct, the relationship between the amount of work performed and the significance of the matters at stake, the extent to which a given fee award may be so onerous to the non-prevailing party that it would deter similarly situated litigants from the voluntary use of the courts, and other relevant equitable factors. Ak.R.82(c). See also, Hickel v. Southeast Conference, 868 P.2d at 932, n. 20 (Alaska 1994), citing Atlantic Richfield Company v. State, 723 P.2d 1249, 1252 (Alaska 1986). A complementary rule encourages settlements by treating a party as the prevailing party if it loses at trial but betters a previously made offer of judgment. Ak.Civ.R.Pro. 68. Rule 82 is considered substantive for purposes of Erie and is therefore applied in cases tried in Alaska federal courts based on diversity jurisdiction.
Cost awards on appeal are governed by Ak.App.Rule 508; fees on appeal, if awarded at all, are generally for token amounts.
A longstanding judicially created exception to Alaska's prevailing party attorney fee rule formerly allowed public interest litigants to recover full fees if successful, and to pay no fees if not. News media were routinely treated as public interest litigants in access cases. In 2003 the legislature amended AS 09.60.010 to abolish the public interest exception to Rule 82 for non-constitutional causes of action, and this was upheld by the Supreme Court in 2007. For a more extended discussion of issues relating to availability of fees and costs, and the operation and abrogation of the public interest exception to Alaska’s Rule 82 prevailing party attorney fee rules, including discussion of a 2018 case apparently leaving open the possibility of treating a public records request as a constitutional claim for purposes of an attorney fees award, see Open Records Guide, §IV.D.9.
The court in Hickel rejected an argument that the presumptive award of full reasonable fees to a prevailing public interest litigant should be modified to apportion fees by issue, and reduce the fee award with respect to issues on which the public interest plaintiff did not prevail. The Supreme Court reaffirmed its unwillingness to require apportionment of fees on the basis of individual issues. It did, however, note that while it has declined to require apportionment by issue, it has allowed trial courts the discretion to consider the prevailing party's varying degree of success on issues when the court sets the award amount. "The important point is that the determination of the fee award is left to the broad discretion of the trial court. The trial court may apportion fees by issue in setting a reasonable fee award. However, the trial court is not required, as a matter of law, to do so." Hickel, 868 P.2d at 925-926. Accordingly, the court held that the superior court had not erred in refusing to apportion fees by severable issue or degree of relief awarded.
The cases the court cited to reach this result that would allow an apportionment of fees within the discretion of the trial court were not cases involving public interest litigants. The court in Hickel also addressed the prevailing party status of the Alaska Democratic Party, which had challenged the governor's reapportionment plan on the basis that the Reapportionment Board violated the Open Meetings Act, the Public Records Act, and the state Procurement Code. The superior court held that the Open Meetings Act and the Public Records Act applied to the Board and that the Board violated these acts. However, the court also held that "because of the other decisions in this case, the public interest is better served by not voiding the plan on the basis of Open Meetings Act violations." On appeal, the Supreme Court affirmed the superior court's holding that the Open Meetings Act and the Public Records Act generally apply to the activities of the Reapportionment Board, but because the superior court did not grant relief on that basis, the Supreme Court did not reach the questions of whether there had in fact been violations, or whether any such violations warranted voidance of the plan. The state challenged the award of attorneys' fees to the ADP on the basis that it was not a prevailing party because it did not prevail on the main issue in the case — whether the original plan should be declared void on the basis of procedural violations committed by the Board. The plaintiffs responded that the ADP was the prevailing party because it was successful on the main issue. They said that the ADP had obtained a declaratory judgment that the Open Meetings Act applied to the Board and that the Board violated the act, and an order requiring the Board to comply with the Open Meetings Act in the future.
The Alaska Supreme Court stated that in examining this issue, "it is important to keep in mind the principle underlying the Open Meetings Act and the Public Records Act: open decision-making is one of the essential aspects of the democratic process." 868 P.2d at 928. Citing its earlier decision in ACCFT, the court noted that "open meetings statutes were not primarily intended as vehicles for individuals displeased with governmental action to obtain reversals of substantive decisions. What the statutes envision instead is that nonconforming procedures be righted as near to the point of derailment as possible, and that the governmental process be allowed to resume from there." 868 P.2d at 928, citing ACCFT, 677 P.2d at 891.
Accordingly, the Supreme Court concluded, a litigant does not have to have a substantive decision invalidated on the basis of governmental violations of the Open Meetings Act or Public Records Act to be considered a prevailing party. The Supreme Court agreed with the superior court that with respect to the Alaska Democratic Party, the main issue in this case was whether the Open Meetings Act and the Public Records Act applied to the Reapportionment Board, and whether the Board had violated these Acts in preparing the proposed reapportionment plan. Although the superior court's declaratory judgment regarding violations by the Board of the Open Meetings Act and the Public Records Act was moot, the court noted that it would review an otherwise moot issue on its merits to determine who was the prevailing party for purposes of attorneys' fees. It therefore went on to address the substantive merits before concluding that the superior court did not err in holding that the Board violated these Acts, and therefore did not abuse its discretion in granting the ADP prevailing party status or in awarding the ADP attorneys' fees.
With respect to costs, the Supreme Court held that costs may not be assessed against a losing public interest litigant. McCormick v. Smith, 799 P.2d 287, 288 (Alaska 1990). However, the 2003 statute noted above rejects this result, and prohibits courts from sheltering non-prevailing public interest litigants in non-constitutional cases from having to pay costs to the other side. AS 09.60.010.
In Hickel, the public interest plaintiffs urged the court to adopt a public interest exception to Alaska Administrative Rule 7(c), which places certain limitations upon the recovery of costs. These limitations can cause a substantial financial impact, as is demonstrated by the facts in the reapportionment case. Rule 7(c) states that recovery of expert witness costs is "limited to the time when the expert is employed and testifying and shall not exceed $50.00 per hour, except as otherwise provided in these Rules," which has been interpreted to mean that a party may not recover costs for an expert's preparation time, nor any costs associated with the experts if they do not testify. Based on Rule 7(c), the superior court refused to compensate plaintiffs for $129,832.13 in expert costs incurred in preparation for trial and in developing an interim reapportionment plan.
The state argued against creation of a rule whereby prevailing public interest litigants would receive full expert witness preparation fees, noting that Alaska Civil Rule 94, which allows courts to relax the rules to prevent injustice, already provides ample protection for public interest litigants without the rigidity of an "automatic" rule. The Supreme Court declined to create a public interest exception to Administrative Rule 7(c), relying instead on the trial court's exercise of discretion under Civil Rule 94. In any event, subsequent passage of AS 09.60.010, discussed above, would appear to limit the court’s discretion to adopt such a rule.
The court has discretion to “order payment to a successful plaintiff in a suit brought under this section of the plaintiff's reasonable attorney fees, by the defendant state, the political subdivision of the state or the incorporated city or town of which the public body is a part or to which it reports.” A.R.S. § 38-431.07(A). In determining whether to assess attorney fees and costs, courts may consider the overall behavior of the public body and its attempt to comply with the spirit of the OML. See Carefree Imp. Ass’n, 133 Ariz. at 114-15, 649 P.2d at 993-94.
Moreover, the Court may assess a public officer individually with all costs and attorneys fees awarded to plaintiff if it “determines that a public officer with intent to deprive the public of information violated any provision of [the OML].” A.R.S. § 38-431.07(A).
(1) Under a 1987 amendment, attorneys’ fees and other “litigation expenses” are now available to a party who has “substantially prevailed” in an FOIA case. A fee award is discretionary, not mandatory. Ark. Code Ann. § 25-19-107(d). If the plaintiff prevails, the court may decline to assess fees and costs against the defendant if it finds that the defendant’s position was “substantially justified” or that “other circumstances make an award of these expenses unjust.” Id. If the defendant prevails, the court may make a fee award only upon a finding that the plaintiff initiated the action “primarily for frivolous or dilatory purposes.”
(2) A fee award to a successful plaintiff is not necessary in every case and is generally inappropriate unless the plaintiff substantially prevailed on the FOIA claim and the public officials’ actions were substantially justified. City of Little Rock v. Carpenter, 374 Ark. 551, 288 S.W.3d 647 (2008). See also Harris v. City of Ft. Smith, 366 Ark. 277, 234 S.W.3d 875 (2006). For many years, a finding that the defendant had acted arbitrarily or in bad faith was required, Depoyster v. Cole, 298 Ark. 203, 766 S.W.2d 606 (1989), but that standard was overruled in the Harris case.
(3) A defendant may recover attorneys’ fees and costs only if it substantially prevails and the action was initiated “primarily for frivolous or dilatory purposes.” Ark. Code Ann. § 25-19-107(d)(2).
(4) Attorneys’ fees and costs may not be assessed against the State or any of its agencies or departments, Ark. Code Ann. § 25-19-107(e)(1), though by statute, such an award may be made against the State in FOIA cases involving the Hazardous Waste Management Act, Ark. Code Ann. § 8-7-204(j). The Court of Appeals has held in George v. Department of Human Services, 88 Ark. App. 135, 195 S.W.3d 399 (2004), that state officers and employees are within the statute’s exemption from fees for state departments and agencies. A suit against a state officer or employee in his or her official capacity is equivalent to a suit against the state agency or department for which the named defendant works. Id. at 139-40, 195 S.W.3d at 402. The court reasoned that an officer or employer may only be sued in an official capacity because he or she has administrative control over public records only in an official capacity. Id. at 140, 195 S.W.3d at 402. This reasoning might be mistaken, as it flies in the face of the plain language of the FOIA. Cf. Hafer v. Melo, 502 U.S. 21, 25 (1991) (explaining that an individual-capacity action under 42 U.S.C. § 1983 “seek[s] to impose individual liability upon a government officer for actions taken under color of state law”). The criminal penalties of the FOIA pertain to state officers and employees; had the legislature intended to immunize them against civil remedies, it could have done so.
The court, in its discretion, may award court costs and attorneys' fees to the plaintiff under either Act where it is determined that a body or agency has violated the Act. Cal. Gov't Code §§ 11130.5 (Bagley-Keene Act), 54960.5 (Brown Act). The fees are to be paid by the body and are not the personal liability of any individual officer or employee. Cal. Gov't Code §§ 11130.5 (Bagley-Keene Act); 54960.5 (Brown Act). The court is also authorized to award attorney fees to a defendant in any action under the Act where the defendant prevails and the court finds that the action was clearly frivolous and totally lacking in merit. Cal. Gov't Code §§ 11130.5 (Bagley-Keene Act), 54960.5 (Brown Act).
Under the Brown Act, an award of attorneys' fees is "presumptively appropriate" and a prevailing plaintiff should "ordinarily recover an attorney's fees unless special circumstances would render such an award unjust." Los Angeles Times Commc’ns LLC v. Superior Court, 112 Cal. App.4th 1313, 1327, 5 Cal. Rptr. 3d 776, 785 (2004); see also Galbiso v. Orosi Pub. Util. Dist., 167 Cal. App. 4th 1063, 1083, 84 Cal. Rptr. 3d 788 (2008). In Los Angeles Times, the court held that fees were required because the litigation conferred a "public benefit" in part because the legislative body and its counsel continued to assert that it had done nothing wrong, leaving "open the possibility that the same violation would recur." Id. at 1322. Where the Brown Act plaintiff has prevailed on both Brown Act and non-Brown Act claims, the trial court must apportion the fees and award fees only for the Brown Act causes of action. Bell v. Vista Unified Sch. Dist., 82 Cal. App. 4th 672, 98 Cal. Rptr. 2d 263 (2000).
Court costs may be awarded to the prevailing party at the court's discretion pursuant to Colo. Rev. Stat. § 13-16-114.
An award of attorney fees in an action to enforce the Open Meetings Law may be made to the citizen bringing suit if the court finds a violation of law. § 24-6-402(9); see also Zubeck v. El Paso Cty. Ret. Plan, 961 P.2d 597 (Colo. App. 1998). However, if the court does not find a violation of the section, it shall award costs and attorney fees to the prevailing party if the court finds that the action was frivolous, vexatious, or groundless. Colo. Rev. Stat. § 24-6-402(9). Attorney fees may be awarded to the government entity if an application seeking access to a record of an executive session is found vexatious, groundless, or frivolous. Colo. Rev. Stat. § 27-72-204(3)(a)(XI)(A)(5.5)(a).
See Records Outline at V.D.
A court may award attorneys’ fees and costs to the successful plaintiff of any action brought under this Act. 29 Del. C. § 10005(d). A court may also award attorneys’ fees and costs to a successful defendant, but only if it finds that the action was frivolous or was brought solely for the purpose of harassment. Id.
District of Columbia
Not specifically addressed.
Whenever a citizen has filed an action to enforce the provisions of section 286.011, or to invalidate actions taken at a meeting in violation thereof, and the court determines that such a violation was committed, it must assess reasonable attorneys’ fees against the defendant(s). Fla. Stat. § 286.011(4) (2012); see, e.g., Mem’l Hosp.-W. Volusia, Inc. v. News-Journal Corp., 784 So. 2d 438 (Fla. 2001); Indian River Cnty. Hosp. Dist. v. Indian River Mem’l Hosp., Inc., 766 So. 2d 233 (Fla. 4th DCA 2000). Attorneys’ fees may also be assessed against a plaintiff who sues under section 286.011 and fails to present facts which create a justifiable issue. Cf. Bland v. Jackson Cnty., 514 So. 2d 1115 (Fla. 1st DCA 1987). There is no comparable provision for assessment of court costs. Section 286.011(4) does not relieve a litigant from full compliance with the Rules of Appellate Procedure. Sch. Bd. of Alachua Cnty. v. Rhea, 661 So. 2d 331 (Fla. 1st DCA 1995).
In any action brought to enforce the provisions of the Act in which the court determines that an agency acted without substantial justification in not complying, the court shall, unless it finds that special circumstances exist, assess in favor of the complaining party reasonable attorney's fees and other litigation costs reasonably incurred. O.C.G.A. § 50-14-5(b). See, e.g., City of Statesboro v. Dabbs, 289 Ga. 669, 671, 715 S.E.2d 73, 75 (2011) (as trial court expressly found that city’s violations of Act “were not a result of special circumstances and no substantial justifications for the violations were provided,” an assessment of reasonable attorney’s fees against the city was required); Slaughter v. Brown, 269 Ga. App. 211, 603 S.E.2d 706 (2004) (lack of bad faith does not support a finding of special circumstances sufficient to decrease the award of litigation costs); Evans Cty. Bd. of Comm'rs. v. Claxton Enter., 255 Ga, App. 656, 566 S.E.2d 399 (2002) (absence of official action at a meeting does not support a finding of special circumstances sufficient to decrease the award of costs for both trial and appellate litigation). But cf. Moon v. Terrell Cty, 260 Ga. App. 433, 579 S.E.2d 845 (2003) (commissioners acted with substantial justification when they closed the meeting in order to protect plaintiff's privacy rights).
A counterclaim for such fees filed during the pendency of the action is likely not subject to a motion to strike under the Georgia anti-SLAPP statute. Geer v. Phoebe Putney Health Sys., Inc., 849 S.E.2d 660 (Ga. Oct. 6, 2020), reconsideration denied (Nov. 2, 2020) (construing Georgia open records act).
The court may assess against any party, except a state’s attorney, reasonable attorney fees and other litigation costs incurred by any party who substantially prevails in an action brought in accordance with the Act. Costs may be assessed against a private party or parties bringing an action pursuant to this section only if the court determines that the action was malicious or frivolous. See 5 ILCS 120/3(d). Factors to assess attorney’s fees include:
(1) the skill and standing of the attorney; (2) the nature of the case; (3) the novelty or difficulty of the issues and work involved; (4) the importance of the matter; (5) the degree of responsibility required; (6) the usual and customary charges for comparable services; (7) the benefit to the client; and (8) whether there was a reasonable connection between the fees charged and the amount involved in the litigation.
Kaiser v. MEPC American Properties, Inc., 164 Ill. App. 3d 978, 984, 518 N.E.2d 424, 428 (1987).
The court shall award reasonable attorneys’ fees, court costs and other reasonable expenses of litigation, to a prevailing plaintiff. Ind. Code § 5-14-1.5-7(f); see, e.g., Ross v. Bartholomew Cnty. Drainage Bd., 995 N.E.2d 1051, 1057 (Ind. Ct. App. 2013) (upholding award of attorney’s fees). But see City of Jeffersonville v. Envtl. Mgmt. Corp., 954 N.E.2d 1000, 1012 (Ind. Ct. App. 2011) (holding that the trial court abused its discretion in calculating the environmental corporation’s attorney’s fees and costs for litigation expenses). However, a prevailing plaintiff may not recover fees if the plaintiff filed suit without seeking and obtaining an informal inquiry response from the Public Access Counselor, unless the lawsuit was necessary to prevent violation of the Open Door Law. Ind. Code § 5-14-1.5-7(f); see, e.g., Gary/Chicago Airport Bd. of Auth. v. Maclin, 772 N.E.2d 463, 471–72 (Ind. App. 2002) (upholding grant of attorney fees after filing of formal complaint to the Public Access Counselor); Hinojosa v. Hammond Bd. of Pub. Works & Safety, 789 N.E.2d 533, 548-49 (Ind. App. 2003) (because appellant’s suit against the government was necessary to prevent current and further violations of the Indiana Open Door Law, award of attorney fees to appellant under IC 5-14-1.5-7(f) was proper, despite appellant’s failure to obtain an advisory opinion from the public access counselor prior to filing for relief). An award of attorneys’ fees and litigation expenses is discretionary to a prevailing defendant, if the court finds that the action is frivolous and vexatious. Id. As a matter of course, costs are awarded to the prevailing party. Ind. Trial Rule 54(D).
Costs and reasonable attorney fees to one establishing violation paid by members assessed damages pursuant to § 21.6(3)(b), or if no such members exist, by the governing body.
Board members who are knowledgeable about the provisions of the Open Meetings Law cannot be said to have reasonably relied on the advice of counsel when they make no effort to follow the simple procedures set forth in Iowa Code § 21.5 for closing meeting. Grell v. City of Coralville Bldg. Appeals Bd., No. 98-1992, 1999 WL 1255744 (Iowa Ct. App., Dec. 27, 1999).
Costs available under 75-4320a(c). No provision for attorney fees.
The party who brings enforcement proceedings and prevails shall be awarded reasonable attorney fees and other costs of litigation. If such person prevails in part, the court may award him reasonable attorney fees or an appropriate portion thereof. If the court finds that the proceeding was of a frivolous nature and was brought with no substantial justification, it may award reasonable attorney fees to the prevailing party. La. Rev. Stat. Ann. § 42:26(C); See Shirley v. Beauregard Parish Sch. Bd., 615 So.2d 17 (La. App. 3d Cir. 1993) (awarding attorney fees where plaintiff partially successful).
The court may award a prevailing party reasonable attorney fees and litigation expenses. § 3-401(d)(5)(i); see Wesley Chapel Bluemount Ass'n v. Baltimore County, 347 Md. 125, 149, 699 A.2d 434, 446 (1997). In determining whether to award attorneys' fees, the court is to consider, among other things, the public body's basis for closing the meeting, whether its actions were willful, whether the amounts claimed were reasonable, and the degree of good faith shown by both parties. 347 Md. at 150, 699 A.2d at 447. However, the Act does not require a finding of willfulness as a precondition to the assessment of counsel fees and litigation expenses. Armstrong v. Mayor of Baltimore, 409 Md. 648, 976 A.2d 349 (2009).
A prevailing party is not automatically entitled to recover its fees, nor does prevailing create a presumption in favor of a fee award. Baltimore County v. Wesley Chapel Bluemount Ass'n., 128 Md. App. 180, 189, 736 A.2d 1177, 1183 (1999). On the other hand, the prevailing party need not prove animus or bad faith on the part of the government body to justify its claim for fees. 128 Md. App. at 190, 736 A.2d at 1182. Malamis v. Stein, 69 Md. App. 221, 516 A.2d 1039 (1986). The court may also require a bond to ensure compliance. § 3-401(d)(5)(ii).
Court costs available but 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).
Court costs and actual attorney’s fees (as opposed to reasonable attorney’s fees under the FOIA) are available to persons bringing actions for injunctive relief where they are successful in obtaining such relief (Mich. Comp. Laws Ann. § 15.271(4)) and to persons who prevail in civil actions for damages for intentional violations of the OMA (Mich. Comp. Laws Ann. § 15.273(3)). The Michigan Court of Appeals has held that where a trial court granted declaratory judgment in favor of a plaintiff who contended that a closed meeting violated the OMA and where, but for the defendant’s promise to comply with the decision, the court would have granted a permanent injunction, an award of attorney’s fees and costs to the plaintiff was proper. Ridenour v. Bd. of Educ., 314 N.W.2d 760, 764 (1981). Ridenour was subsequently overruled regarding available remedies by the Michigan Supreme Court in Speicher v. Columbia Twp. Bd. of Trs., 497 Mich. 125, 134, 860 N.W.2d 51, 55 (2014) (“[C]ourt costs and actual attorney fees under MCL 15.271 may only be awarded when a plaintiff seeks and obtains injunctive relief.”).
Requesters of a special use permit issued for construction of a condominium project were not entitled to court costs and attorney’s fees, although there was an admitted violation of the OMA, where they had withdrawn their claim for injunctive relief by stipulation prior to or at the hearing in the matter and no court order or judgment was rendered compelling compliance or enjoining noncompliance, or invalidating any decision of the zoning commission. Felice v. Cheboygan Cty. Zoning Comm’n, 103 Mich. App. 742, 304 N.W.2d 1 (1981).
See Willis v. Deerfield Twp., 669 N.W.2d 279 (2003) (a technical violation of the OMA which does not provide the plaintiff relief in the action held not to be grounds for an award of attorney’s fees). The Michigan Court of Appeals has also emphasized that the OMA provides for actual attorney’s fees and court costs. A trial court's reduction of the fees and costs award to 1/2 of the amount requested out of concern for the burden on the taxpayers was improper, since the statute leaves no room for discretion. Booth Newspapers, Inc. v. Wyoming City Council, 425 N.W.2d 695, 701-02 (1988). Deposition costs for depositions not filed with the clerk of the court, however, are not included in the actual attorney’s fees proscribed by the OMA. Morrison v. City of E. Lansing, 660 N.W.2d 395, 404 (2003).
The court may award reasonable costs, disbursements, and attorneys’ fees of up to $13,000 to any party in the action. Minn. Stat. § 13D.06, subd. 4(a). No monetary penalties or attorneys’ fees may be awarded against a member of the public body unless the court finds there was a specific intent to violate the law. Minn. Stat. § 13D.06, subd. 4(d). The court may also award costs and attorneys’ fees to a defendant, but it must find the action was frivolous and without merit. Minn. Stat. § 13D.06, subd. 4(b).
Yes, the statute allows for the recovery of “all reasonable expenses incurred by the person or persons in bringing the complaint.” § 25-41-15.
Pursuant to Mont. Code Ann. § 2-3-221, a petitioner who prevails in an action to enforce constitutional access rights (open meetings or open records rights) may be awarded costs and reasonable attorney’s fees. Courts routinely award such fees and costs particularly when the decision to close the meeting is arbitrary or made without regard to the obvious provisions of the Montana open meetings law and the Constitution.
Attorney fees are generally not awarded. See R. 4:42-9. Costs may be taxed. See R. 4:42-8.
The court shall award costs and fees to a successful plaintiff. If a public body defendant prevails and if the court determines the plaintiff brought the suit without sufficient information and belief that good grounds support the suit, the court shall award reasonable attorneys' fees. NMSA 1978 § 10-15-3(C).
Until recently, a court could award costs and attorney’s fees to the prevailing party at its discretion. However, the 2008 amendments require the award of attorney fees when it is found that a public body voted in private “in material violation” of the law, “or that substantial deliberations occurred in private” that should have occurred in public. Note that, in other instances, such as a failure to fully comply with notice requirements, the sufficiency of a motion for entry into executive session, or the preparation of minutes in a timely manner, the award of attorney’s fees by a court would remain, as it has since 1977, discretionary. N.Y. Pub. Off. Law § 107 (McKinney 2008). In 2010, Section 107 was amended to include that if a court determines that a public body failed to comply with OML, the court has discretion, upon good cause shown, to declare that the public body violated OML, to declare as void the action taken, and to require members of the public body to participate in training sessions concerning the obligations imposed by OML. N.Y. Pub. Off. Law § 107.
“[N]ot every violation of the Open Meetings Law automatically triggers its enforcement sanctions.” (New York Univ. v. Whalen, 46 N.Y.2d 734, 413 N.Y.S.2d 637, 386 N.E.2d 245; see also, Matter of Goodson Todman Enterprises v. City of Kingston Common Council, 153 A.D.2d 103, 550 N.Y.S.2d 157). In contrast to the provisions of federal and state civil rights laws, awards of attorneys’ fees under the Open Meetings Law should not be granted by courts to the prevailing party simply as a matter of course. Compare, Matter of Thomasel v. Perales, 78 N.Y.2d 561, 585 N.E.2d 359, 578 N.Y.S.2d 110, (42 U.S.C. § 1988); Matter of Northeast Cent. Sch. Dist. v. Sobol, 79 N.Y.2d 598, 595 N.E.2d 339, 584 N.Y.S.2d 525 (20 USC § 1415); see also, Gordon v. Village of Monticello, 87 N.Y.2d 124, 661 N.E.2d 691, 637 N.Y.S.2d 961, 963 (1995). Matter of New York State Clinical Lab. Ass’n v. Kaladjian, 85 N.Y.2d 346, 649 N.E.2d 811, 625 N.Y.S.2d 463.
Attorneys’ fees granted. Where “the court finds that defendants’ actions ‘took place in such a manner as to circumvent the Open Meetings Law quorum requirement’ (see Public Officers Law § 105), that defendants later ‘stretched credulity’ in describing their conduct to the court, that there was good cause shown to void the actions taken (Public Officers Law § 107), and that there had been ‘obvious prejudice’ to plaintiffs as a result of defendants’ intentional and deceitful conduct, an award of fees is justified.” Gordon v. Village of Monticello, 87 N.Y.2d 124, 127, 661 N.E.2d 691, 693, 637 N.Y.S.2d 961, 964 (1995) (see, e.g., Matter of Britt v. Cty. of Niagara, 82 A.D.2d 65, 440 N.Y.S.2d 790);
Matter of Zehner v. Board of Educ. of Jordan-Elbridge Cent. Sch. Dist., 91 A.D.3d 1349, 1350, 937 N.Y.S.2d 510 (4th Dep’t 2012) (determining no abuse of discretion for court to award attorneys’ fees where respondent violated OML); Goetschius v. Bd. of Educ. of Greenbush Eleven Union Free Sch. Dist., 281 A.D.2d 416, 721 N.Y.S.2d 386 (2d Dep’t 2001) (attorneys’ fees award to petitioners upheld where Board of Education persistently violated letter and spirit of Open Meetings Law by improperly convening executive sessions).
In addition, “the fact that a defendant has repeatedly violated the Open Meetings Law is certainly the kind of evidence that may justify an award of attorneys’ fees.” Gordon v. Village of Monticello, 87 N.Y.2d 124, 128, 661 N.E.2d 691, 693, 637 N.Y.S.2d 961, 964 (1995). (See Matter of Orange Cty. Publs., 120 A.D.2d 596, 597, 502 N.Y.S.2d 71, supra). The Court of Appeals has held, however, that failure to demonstrate repeated violations “is of no moment since it is inconceivable that the Legislature had only such recidivist offenders in mind when it vested Trial Judges with the authority to award costs and fees in the first place. In fact, it is very often the possibility of recovering costs and attorneys’ fees that gives private citizens . . . the impetus they need to bring meritorious lawsuits to enforce the Open Meetings Law thus advancing the statutory policy of keeping New Yorkers better apprised of the actions of their elected officials.” Id. (See Baker v. Edwards, No. 2039-94 (Sup. Ct., Suffolk Cty., June 27, 1994) (board vote invalidated and counsel fees of $750 awarded); Gordon v. Village of Monticello, 87 N.Y.2d 124, 661 N.E.2d 691, 637 N.Y.S.2d 961 (1995) (The Open Meetings Law contains no requirement, for an award of attorneys’ fees, that the information withheld from the public be of “clearly significant interest” and that there be no “reasonable basis” for withholding it).
Cunney v. Bd. of Trs. of Vill of Grand View, 72 A.D.3d 960, 900 N.Y.S.2d 110 (2d Dep’t 2010) (violation of OML found where there was a failure to vote in public session, but petitioner failed to establish good cause to void the decision); Gold v. Zoning Bd. of Appeals, No. 010551/10, 2010 WL 31182821 (Sup. Ct., Nassau Cty., Jul. 27, 2010) (record did not support annulling board’s decision, but costs and attorney fees were awarded); Humphrey v. Posluszny, 175 A.D.2d 587, 573 N.Y.S.2d 790 (4th Dep’t 1991) appeal dismissed, 78 N.Y.2d 1072, 582 N.E.2d 605, 576 N.Y.S.2d 222 (matter remitted to determine any entitlement to costs and attorney fees where political party improperly conducted public business); Orange Cty. Publications v. Cty. of Orange, 120 A.D.2d 596, 502 N.Y.S.2d 71 (2d Dep’t 1986), appeal dismissed, 68 N.Y.2d 807, 498 N.E.2d 437, 506 N.Y.S.2d 1037 (1986) (county legislature’s persistent dereliction of the mandates of the OML, contrary to previous court orders to comply, permit a fine for contempt of court and an award of attorneys’ fees); Sanna v. Lindenhurst Bd. of Educ., 85 A.D.2d 157, 447 N.Y.S.2d 733 (2d Dep’t 1982), aff’d, 58 N.Y.2d 626, 444 N.E.2d 975, 458 N.Y.S.2d 511 (1982) (awarding attorneys’ fees); Lakeville Journal v. Village Bd., No. 3769/85 (Sup. Ct. Dutchess Cty., Dec. 6, 1985) (awarding costs and reasonable attorneys’ fees in the sum of $1,000); Orange Cty. Publications v. Council of City of Newburgh, No. 5645/1982 (Sup. Ct., Orange Cty., March 4, 1983) (awarding attorneys’ fees and costs in the amount of $500); Orange Cty. Publications v. Cty. of Orange, No. 5686/78 (Sup. Ct., Orange Cty., Oct. 26, 1983) (awarding attorneys’ fees of $1,500); In re Holdsworth, No. 80-1180 (Sup. Ct., Tompkins Cty., Nov. 13, 1980) (awarding attorneys’ fees of $320.00 due to lack of reasonable or timely effort to comply with the OML requirement of access for physically handicapped); Jones v. Common Council, No. 80-506 (Sup. Ct., Chenango Cty., Aug. 13, 1980) (awarding taxable costs and disbursements); Steele v. City of Niagara Falls, (Sup. Ct., Niagara Cty., March 31, 1980) (awarding attorneys’ fees of $2,150).
Attorneys’ fees denied. Attorneys’ fees are not granted to the prevailing party simply as a matter of course. Gordon v. Village of Monticello, 87 N.Y.2d 124, 127, 661 N.E.2d 691, 693, 637 N.Y.S.2d 961, 963 (1995). “Thus, as with awards of injunctive relief (see Public Officers Law § 107), purely technical and non-prejudicial infractions (e.g., Town of Moriah v. Cole-Layer-Trumble Co., 200 A.D.2d 879, 606 N.Y.S.2d 822; Monroe-Livingston Sanitary Landfill v. Bickford, 107 A.D.2d 1062, 486 N.Y.S.2d 566) or wholly unintentional violations (e.g., Addesso v. Sharpe, 44 N.Y.2d 925, 379 N.E.2d 1138, 408 N.Y.S.2d 8; Matter of New York Horse & Carriage Ass’n v. Counsel of City of N.Y., 169 A.D.2d 547, 564 N.Y.S.2d 399; see also, Public Officers Law § 107) do not rise to the level of supporting an award of attorneys’ fees. Similarly, where the defendant has made a good faith, reasonable effort to comply with the statute, attorneys’ fees may not be warranted (.e.g., Matter of Clark v. Lyon, 147 A.D.2d 838, 537 N.Y.S.2d 934; see also, Public Officers Law § 193[b]).” Gordon v. Village of Monticello, 87 N.Y.2d 124, 127-28, 661 N.E.2d 691, 694, 637 N.Y.S.2d 961, 963-64 (1995).
See Plattsburgh Publishing Company v. City of Plattsburgh, 185 A.D.2d 518, 586 N.Y.S.2d 346 (3d Dep’t 1992) (no proof of bad faith); Clark v. Lyon, 147 A.D.2d 838, 537 N.Y.S.2d 934 (3d Dep’t 1989) (no abuse of discretion to deny fees where county was making efforts to provide access to person with a disability); Jones v. Koch, 117 A.D.2d 647, 498 N.Y.S.2d 166 (2d Dep’t 1986), mot. lv. appeal dismissed, 68 N.Y.2d 608, 498 N.E.2d 435, 506 N.Y.S.2d 1033 (1987) (reversing lower court’s award of attorneys’ fees which had been based upon board’s gross disregard of statutory rules which bordered on bad faith; plaintiffs could not be deemed “successful parties” where the appointment issued in violation of the OML was withdrawn); Previdi v. Hirsch, 138 Misc.2d 436, 524 N.Y.S.2d 643 (Sup. Ct. 1988) (denying an award of attorneys’ fees in the court’s “exercise of discretion,” even though petitioner had prevailed).
G.S. § 143-318.16B provides that in any suit brought pursuant to the Open Meetings Law, the court may make written findings specifying the prevailing party and may award a reasonable attorney fee to be taxed against the losing party as part of the cost. Additionally, the court may order that any or all of the fees assessed be paid personally “by any individual member or members of the public body found by the court to have knowingly or intentionally committed the violation,” unless that individual sought and followed the advice of legal counsel.
The courts have applied this provision and awarded attorney fees in several instances. Following a Court of Appeals ruling that the Outer Banks Sentinel was entitled to receive copies of records they requested from the Town of Kitty Hawk, Womack Newspapers, Inc. v. Town of Kitty Hawk ex rel. Kitty Hawk Town Council, 181 N.C. App. 1, 639 S.E.2d 96 (2007), the trial court awarded almost $100,000 in attorney fees to the paper. In HBS v. Cumberland Co. Board of Education, 122 N.C. App. 49, 468 S.E.2d 517 (1996), the court affirmed an award of attorney fees against the defendant. Accord, Jacksonville Daily News v. Bd. of Educ., 113 N.C. App. 127, 439 S.E.2d 607 (1993); Piedmont Pub. Co. v. Surry County Board of Commissioners, 24 Media L. Rep. (BNA) 1371 (N.C. Sup. Ct. 1995). As a cautionary note, the Superior Court for Forsyth County awarded attorney fees to the defendant in an Open Meetings Law action when the court found the defendant to be the prevailing party. Piedmont Pub. Co. v. Town of Kernersville, Case No. 95 CVS 5884, unpublished opinion (Forsyth Co. Sup. Ct., 1996).
The court may award costs, disbursements, and reasonable attorney’s fees against the entity. N.D.C.C. § 44-04-21.2(1).
A court granting an injunction under the statute "shall" award to the party that sought the injunction "all court costs" and "reasonable attorney's fees." Ohio Rev. Code § 121.22(I)(2); see Mansfield City Council v. Richland Cty. Council AFL-CIO, No. 03 CA 55, 2003 WL 23652878 (Richland Dec. 24, 2003) (awarding $7,500 in attorney fees while stating that $150 per hour is a reasonable rate).
The court has the discretion to reduce an award of attorneys' fees, or to award no attorneys' fees, where the court determines both of the following:
· That, based on the ordinary application of statutory law and case law as it existed at the time of violation or threatened violation, a well-informed public body reasonably would believe that the public body was not violating the open meetings statute; and
· That a well-informed public body reasonably would believe that its conduct would serve the public policy that underlies the authority asserted by the public body for not acceding to the demands of the person who successfully sought the injunction.
Ohio Rev. Code §§ 121.22(I)(2)(i), (ii).
The court may award attorneys' fees to a prevailing public body only where the court finds that the suit was frivolous. Ohio Rev. Code § 121.22(I)(2)(b).
The Public Meetings Law makes an award of attorneys’ fees generally discretionary with the court. ORS 192.680(3). If the court finds that the Public Meetings Law violation was a result of “willful misconduct” by any member of the governing body, that member shall be personally liable to the governing body or public body for attorneys’ fees paid, if such fees are awarded by the court. ORS 192.680(2).
The Act specifically requires the court to impose reasonable attorneys’ fees and costs of litigation on an agency that “willfully or with wanton disregard violated a provision of this chapter, in whole or part.” The Act also requires the court to award reasonable attorneys’ fees and costs of litigation for legal challenges “of a frivolous nature” or “brought with no substantial justification.” 65 Pa. C.S.A. § 714.1.
The court shall award reasonable attorney fees and costs to a prevailing plaintiff, other than the attorney general, except where special circumstances would render such an award unjust. R.I. Gen. Laws § 42-46-8(d).
If a party prevails against the government, the court has discretion to award fees and costs. Two decisions make the award of attorney fees more certain if a party prevails against the public body. Burton v. York County Sheriff, 594 S.E.2d 888 (S.C. App. 2004); Campbell v. Marion County Hosp. Dist., 580 S.E.2d 163 (S.C. App. 2003).
Costs available, but not attorney fees. SDCL §§15-17-1 and 15-17-7.
In Fannon v. City of LaFollette,329 S.W. 3d. 418 (Tenn. 2010), the court (with one justice dissenting) denied an award of attorney’s fees because the Act did not provide for attorney’s fees. The court did allow discretionary court costs (deposition/court reporter fees), which frequently are allowed in Tennessee litigation.
Pursuant to Section 551.142(b), the court may award costs of litigation and reasonable attorney fees to either a plaintiff or a defendant who substantially prevails. The award of these costs and fees is discretionary. "In exercising its discretion, the court shall consider whether the action was brought in good faith and whether the conduct of the governmental body had a reasonable basis in law." § 551.142(b); see also Piazza, 909 S.W.2d at 535; Ferris v. Texas Bd. of Chiropractic Exam'rs, 808 S.W.2d 514, 519 (Tex. App.—Austin 1991, writ denied). Meeker, 317 S.W.3d at 762 (“[S]ection 551.142(b) does not authorize attorney's fees for succeeding on a claim for declaratory relief”).
Attorneys’ fees and other litigation expenses are mandatory if the aggrieved requestor substantially prevails unless the court finds that the public body: (1) had a reasonable basis in fact and law for its position and the acted in good faith; or (2) the public body cured the violation within 24 calendar days of receipt of written notice of the alleged violation. 1 V.S.A. § 314(d). Attorneys’ fees also may be assessed if the public entity concedes that any documents at issue are public.
Costs and fees will be awarded where the petitioner has substantially prevailed on the merits of the case and where there are no special circumstances making the award unjust. Va. Code Ann. § 2.2-3713.D. See Cole v. Smyth County Board of Supervisors, 298 Va. 625, 842 S.E.2d 389, 398 (2020).
A successful litigant challenging the agency’s closure may obtain attorneys’ fees and costs. RCW 42.30.120(2).
The Open Meetings Act permits courts to order a governing body to pay the "necessary attorney fees and expenses" of persons bringing suit under the statute if (a) the court entered an order compelling compliance or enjoining noncompliance with the statute, or annulling a decision made in violation of the act; and (b) the court finds the governing body "intentionally violated the provisions" of the statute. W. Va. Code § 6-9A-6 (7).
Conversely if the court denies the relief sought by the plaintiff in an Open Meetings Act suit, West Virginia Code section 6-9A-7(c) permits the court to require the plaintiff to pay the public agency's necessary attorney fees and expenses, if the court finds "that the action was frivolous or commenced with the primary intent of harassing the governing body or any member thereof or, in the absence of good faith, of delaying any meetings or decisions of the governing body." Id.
West Virginia Code section 6-9A-11 provides that when "a governing body or member thereof has acted in good faith reliance upon an advisory opinion of the West Virginia ethics commission committee on open governmental meetings . . . it shall constitute an absolute defense to any civil suit or criminal prosecution." While that section seems to provide that a court may not overturn an advisory opinion of the committee on open governmental meetings, such an interpretation would seem to violate the constitutional separation of powers doctrine by prohibiting judicial review or erroneous interpretations of law by an administrative agency. It is unlikely that such a result was intended by the legislature; it is more likely that the advisory opinion provides an "absolute defense" to that portion of a lawsuit seeking attorneys' fees and costs when a litigant successfully argues that the Open Meetings Act has been violated. Thus, while a court may issue a declaratory judgment or an injunction in a suit brought under the Act, the court would be barred from awarding costs and fees to the successful litigant. No judicial decisions have yet addressed this issue.
Even prior to amendments authorizing the award of attorneys' fees under the Freedom of Information and Open Meetings Acts, the Supreme Court had ruled that a willful disregard of law by an agency in denying access to public documents is sufficient to support an award of attorneys' fees. In Richardson v. Town of Kimball, 176 W. Va. 24, 26, 340 S.E.2d 582, 584 (1986), the court allowed recovery of reasonable attorneys' fees against the town for "deliberate disregard" of the mandatory provisions of the open court records statute. In Daily Gazette v. Withrow, the court held a trial court could award attorney fees to a person prevailing in an action under the Freedom of Information Act if "the evidence before the trial court . . . show[s] bad faith, vexatious, wanton or oppressive conduct on the part of the custodian of the public record(s)." Syl. Pt. 6, 177 W. Va. 110, 112, 350 S.E.2d 738, 740 (1986),
The Withrow Court emphasized that entitlement to attorneys' fees is "ordinarily, a question of fact, which requires development before the trial court." Withrow, 177 W. Va. at 119, 350 S.E.2d at 748. The same rule probably will apply to awards of attorney fees under Section 6 of the Open Meetings Act. It is extremely important, therefore, that the record developed in the circuit court include evidence concerning the agency's conduct. See also, Daily Gazette v. W. Va. Development Office, 198 W. Va. 563, 482 S.E.2d 180 (1996) (“Gazette I”).
When the district attorney (corporation counsel) has refused to sue, the prevailing party may receive “actual and necessary costs of prosecution, including reasonable attorney fees to the relator if he or she prevails.” Wis. Stat. § 19.97(4). Attorney’s fees are to be awarded if such an award would advance the purposes of the Open Meetings law of enhancing public access to information about the affairs of government, unless special circumstances would make such an award unjust. State ex rel. Hodge v. Town of Turtle Lake, 180 Wis. 2d 62, 508 N.W.2d 603 (1993).