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9. Litigation expenses


  • Arizona

    (This section is blank. See the subpoints below.)

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  • Arkansas

    Under a 1987 amendment, attorneys’ fees and other “litigation expenses” are now available to a party who has “substantially prevailed” in an FOIA case. Ark. Code Ann. § 25-19-107(d). A fee award is discretionary, not mandatory. Id. 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.”

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  • Colorado

    Attorneys' fees shall be awarded to a person who has been denied access to public records and who subsequently prevails after applying to a court to have such records made open. Where a government agency seeks guidance from the courts as to whether a record is open or closed, after reasonable and good faith investigation and being unable to determine if disclosure is prohibited, no attorneys' fees shall be awarded. Colo. Rev. Stat. § 24-72-204(5).  However, this safe harbor does not apply when the custodian initiates a court action seeking an order to restrict disclosure of a record on grounds that disclosure would cause substantial injury to the public interest. Reno v. Marks, 349 P.3d 248, 254-55 (Colo. 2015).

    Failure to follow the procedure outlined by Colo. Rev. Stat. § 24-72-204(5), either by filing the wrong kind of action or by failing to name the custodian of records as a defendant, will not allow attorney fees to be awarded under that section. Pope v. Town of Georgetown, 648 P.2d 672, 673 (Colo. App. 1982).

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  • Connecticut

    Court costs and fees of not more than $1000 may be awarded to the prevailing party if the court finds the appeal frivolous or taken solely for the purpose of delay. Conn. Gen. Stat. §1-206(d).

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  • Delaware

    (This section is blank. See the subpoints below.)

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  • District of Columbia

    A requester who prevails in a court action may be awarded reasonable attorneys' fees and costs. D.C. Code Ann. § 2-537(c).  D.C. Courts judge requests for fees under the "catalyst theory," meaning that "a party prevails in whole or in part under § 2-537(c) when he demonstrates a causal nexus between the action brought in court and the agency's surrender of the information."  Frankel v. D.C. Office for Planning and Economic Development, 110 A.3d 553, 558 (D.C. 2015) (internal quotation marks and alterations omitted).

    A requester proceeding pro se is not entitled to attorney fees. Donahue v. Thomas, 618 A.2d 601 (D.C. 1992). A requester who prevails in his or her request is entitled to costs only for documents released pursuant to the action before the court. McReady v. Dep't of Consumer & Regulatory Affairs, 618 A.2d 609 (D.C. 1992); see also Donahue, 618 A.2d at 605 (remanding issue of costs for trial court to resolve conflicting rulings about which party in fact prevailed in the action).

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  • Georgia

    Litigation expenses may be available for successfully enforcing the Act.

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  • Hawaii

    If the complainant prevails in an action involving denial of access or failure to properly maintain or correct a personal record, the court shall assess against the agency reasonable attorneys' fees and all other expenses reasonably incurred in the litigation. Haw. Rev. Stat. §§ 92F-15(d) (judicial enforcement), 92F-27(d)(2) and (e) (remedies for disclosure of personal records); see also Burnham Broad. Co. v. County of Hawaii, Civ. No. 92-0161 (Haw. 3d Cir., filed Feb. 14, 1992) (imposing fees on agency refusing disclosure of 911 tapes and transcripts). The court may also assess reasonable attorneys' fees and costs against complainants bringing frivolous cases involving personal records. Haw. Rev. Stat. § 92F-27(e) (1996).

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  • Idaho

    The court shall award reasonable costs and attorney fees to the prevailing party if it finds the request or refusal to provide records was frivolously pursued. Idaho Code § 74-116(2).  See, e.g., Idaho Conservation League, Inc. v. Idaho State Department of Agriculture, 143 Idaho 366, 146 P.3d 632 (2006).

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  • Illinois

    The FOIA states that a requester who “prevails” in a FOIA case shall be awarded reasonable attorneys’ fees and costs.  See 5 ILCS 140/11(i).

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  • Kansas

    Attorney fees are allowable to either party, if the denial or the request was not in good faith and without reasonable basis in fact or law, whereupon, fees are mandatory. K.S.A. 45-222(c) and (d).

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  • Kentucky

    The Circuit Court may award costs and attorney fees to the requester if it finds the public agency willfully violated the Open Records Act. See Ky. Rev. Stat. 61.882(5). However, such awards are within the discretion of the Circuit Court.

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  • Louisiana

    Available. "If a person seeking the right to inspect or to receive a copy of a public record prevails in such suit, he shall be awarded reasonable attorneys' fees and other costs of litigation. If such person prevails in part, the court may in its discretion award him reasonable attorneys' fees or an appropriate portion thereof." La. Rev. Stat. Ann. § 44:35(D). Louisiana courts interpreting section 35(D) have measured "prevailing" by the plaintiff-requester's success in obtaining the records sued for. See, e.g., Ferguson v. Stephens, 623 So. 2d 711 (La. App. 4th Cir. 1993) (court ordinarily should not consider custodian's good faith in determining whether to award attorneys fees); Association for Rights of Citizens v. St. Bernard, 557 So. 2d 714 (La. App. 4th Cir. 1990) (fee award mandatory if plaintiff "fully successful in obtaining all the information requested"); Treadway v. Jones, 583 So. 2d 119 (La. App. 4th Cir. 1991) (housing authority compelled to produce requested records liable for requester's attorneys' fees despite its good faith refusal based on advice of counsel); Gannett River States Pub. Co. v. Hussey, 557 So. 2d 1154, 1159-60 (La. App. 2d Cir. 1990), writ denied, 561 So. 2d 103 (La. 1990) (custodian's good faith relevant to denial of attorneys' fees but some records successfully withheld); Lewis v. Spurney, 456 So. 2d 206, 208 (La. App. 4th Cir. 1984), writ denied, 457 So. 2d 1183 and 458 So. 2d 488 (La. 1984) (same reasoning as Gannett). See also Tectrans, Inc. v. New Orleans Aviation Board, 695 F.Supp.2d 313 (E.D. La. 2010) (requestor entitled to attorneys’ fees where Defendant failed to retain requested public records for statutory three-year period). "[I]n the event the custodian retains private legal counsel for his defense or for bringing suit against the requester in connection with the request for records, the court may award attorneys' fees to the custodian." La. Rev. Stat. Ann. § 44:35(E). In the complex Tulane legislative scholarship litigation, the Fourth Circuit denied attorneys' fees to the Times-Picayune despite generally affirming the district court's ruling on the merits of the records dispute. Times-Picayune Publishing Corp. v. Johnson, 645 So. 2d 1174 (La. App. 4th Cir. 1994), writ denied, 651 So. 2d 259 (La. 1995) (plaintiff was entitled to records at issue, but that plaintiff's request for mandamus was "premature" in absence of showing that defendants would not comply with declaratory judgment, and plaintiff was not entitled to award of attorneys' fees). The Fourth Circuit has since provided direction to avoid the problem in Johnson by instructing that a party may simply ask for a writ of mandamus independently of any declaratory judgment, and issues that need to be determined (such as whether or not the records are public, and whether or not the party opposing the writ is the proper custodian) can be settled in a contradictory mandamus hearing. See Alliance for Affordable Energy v. Frick, 695 So. 2d 1126 (La. App. 4th Cir. 1997). The amount of attorneys' fees awarded will not be disturbed absent "clear evidence of abuse of discretion." Times-Picayune Publishing Corp. v. New Orleans Aviation Board, 742 So. 2d 979 (La. App. 5th Cir.), writ denied, 751 So. 2d 257 (La. 1999).

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  • Maryland

    If the court determines that the complainant has substantially prevailed, the court may assess reasonable counsel fees and other litigation costs reasonably incurred against a defendant governmental unit. § 4-362(f); See Attorney Grievance Comm'n v. Abell, 294 Md. 680, 452 A.2d 656 (1982), Caffrey v. Dep't of Liquor Control for Montgomery County, 370 Md. 272, 281, 805 A.2d 268, 273 (2002). If the statute creating the agency specifically grants immunity from liability, that specific enactment will prevail over § 4-362(f). Abell Publishing Co. v. Mezzanote, 297 Md. 26, 464 A.2d 1061 (1983); see also Steuart Petroleum Co. v. Epstein, No. A6091 A-61073, (Baltimore City Cir. Ct., Sept. 28, 1981) (good faith of agency taken into consideration in determining whether to award fees and costs); Murty v. Office of Personnel Management, 707 F.2d 815 (4th Cir. 1983).

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  • Michigan

    "[R]easonable attorney’s 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 System 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. Financial Institutions Bureau, 163 Mich. App. 437, 414 N.W.2d 909 (1987); see also, Michigan Tax Management Services 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 Schools, 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. University of Michigan, 178 Mich. App. 723, 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, supra, 415 N.W.2d at 296; see also Schinzel, supra, 313 N.W.2d at 169 (citing Bredemeier v. Kentwood Bd. of Education, 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, supra, 415 N.W.2d at 296.

    Moreover, a defendant's good faith in a FOIA action has no bearing on a plaintiffs 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 University, 414 Mich. 510, 565-66, 327 N.W.2d 783 (1982), quoted in Dawkins v. Dep't of Civil Service, 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 County Medical Examiner, 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.

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  • Montana

    In addition to the present and future relief discussed above, a requester is also entitled to recover attorney’s fees pursuant to § 2-3-221, Mont. Code Ann.

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  • Nebraska

    "In any case in which the complainant seeking access has substantially prevailed, the court may assess against the public body which had denied access to their records, reasonable attorney fees and other litigation costs reasonably incurred by the complainant." Neb. Rev. Stat. §84-712.07.

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  • Nevada

    The NPRA provides: "If the requester prevails, he is entitled to recover his costs and reasonable attorney’s fees in the proceeding from the agency whose officer has custody of the book or record." NRS 239.011(2).

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  • New Jersey

    N.J.S.A. 47:1A-6 provides “a requester who prevails in any proceeding shall be entitled to a reasonable attorney’s fee.”

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  • New Mexico

    The Court "shall" order damages, costs, and reasonable attorneys' fees to any person whose written request has been denied and is successful in a court action to enforce the act.  NMSA 1978 § 14-2-12(D).

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  • North Dakota

    The court may award costs, disbursements, and reasonable attorney’s fees against the entity. N.D.C.C. § 44-04-21.2(1).

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  • Ohio

    The court has the discretion to award attorneys' fees where the person bringing suit obtains a writ of mandamus. Ohio Rev. Code § 149.43(C). Establishing the legal test for guiding that discretion has been changing. The latest formulation is that a court will award attorneys' fees where the party bringing suit showed a public benefit and where the public office's reasons for failing to comply with the request for records are invalid. State ex rel. Plain Dealer Publishing Co. v. City of Cleveland, 75 Ohio St.3d 31, 661 N.E.2d 187 (1996); State ex rel. Cincinnati Enquirer v. Hamilton County, 75 Ohio St. 3d 374, 662 N.E.2d 334 (1996).

    The court has the discretion to award attorneys' fees where the public office failed to comply with a sufficiently specific request for public records, then the requester sued, and then the public office complied with the request before the court ordered the public office to comply. State ex rel. Pennington v. Gundler, 75 Ohio St.3d 171, 661 N.E.2d 1409 (1996); State ex rel. Toledo Blade Co. v. Bd. of Hancock County, 82 Ohio St.3d 34, 693 N.E.2d 787 (1998).

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  • Oklahoma

    Attorney fees are available to a party successfully gaining access to records held by public officials. 51 O.S. § 24A.17.B. Attorney fees award directed by Oklahoma Supreme Court in case where Court determined law enforcement’s internal regulations were in violation of Oklahoma Open Records Act. Ward & Lee, P.L.C. v. City of Claremore, 2014 OK CIV APP 1.

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  • Oregon

    In a case where the requester prevails entirely and obtains disclosure, the requester is entitled to reasonable attorneys’ fees and litigation costs and disbursements at trial and on appeal. If the requester prevails in part, the Court may, in its discretion, award costs, disbursements and reasonable attorneys’ fees or a portion thereof. If the requester does not prevail in the litigation, the requester is not liable for the public body’s attorneys’ fees. If a state agency does not comply with an Attorney General’s order requiring disclosure and fails to provide timely notice or to institute proceedings within seven days after the order, the requester is entitled to attorneys’ fees regardless of the outcome of subsequent litigation. ORS 192.490(3).

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  • Rhode Island

    The court shall award reasonable attorney fees and costs to the prevailing plaintiff.  R.I. Gen. Laws § 38-2-9(d).  If the defendant prevails, the court has discretion to award attorneys fees and costs to the defendant in certain circumstances.  R.I. Gen. Laws § 38-2-9(d).

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  • South Carolina

    A court may award a successful plaintiff reasonable attorney fees and other costs of litigation. If the plaintiff prevails in part, the court may in its discretion award fees or an appropriate portion of the fees. S.C. Code Ann. (1991) § 30-4-100(b); Society of Professional Journalists v. Sexton, 324 S.E.2d 563, 11 Media L. Rep. 1334 (S.C. 1984); 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).

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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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  • Washington

    A requester who prevails against an agency that has denied a record must be awarded their costs, including reasonable attorneys’ fees. RCW 42.56.550(4).

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  • West Virginia

    In one of the most significant amendments to the Freedom of Information Act since its enactment, the 1992 legislature provided that "[a]ny person who is denied access to public records requested pursuant to this article and who successfully brings a suit filed pursuant to [the FOIA] shall be entitled to recover his or her attorney fees and court costs from the public body that denied him or her access to the records." W. Va. Code § 29B-1-7.

    There has been only one case in which the West Virginia Supreme Court has addressed the issue of entitlement to a statutory attorney’s fees award under the FOIA. That decision provides comprehensive guidance on the subject. In Daily Gazette Co. Inc. v. W. Va. Development Office, 206 W. Va. 51, 521 S.E.2d 543 (1999) (“Gazette II”), a newspaper filed a FOIA suit against the West Virginia Development Office seeking disclosure of public records. On remand from the Supreme Court of Appeals, the circuit court entered an order awarding attorney fees to the newspaper, and the Development Office appealed.

    In Daily Gazette II, the court held in syllabus point 6 that "[t]he plain language of W. Va. Code §  29B-1-7 (1992) (Repl.Vol.1998) requires an award of attorney fees to a person who has made a request for public records under the West Virginia Freedom of Information Act, W. Va. Code §  29B-1-1, et seq., whose request for such records has been denied by the public body controlling such records, and who has 'successfully br[ought] a suit' for the disclosure of the requested records pursuant to W. Va. Code §  29B-1-5 (1977)." Syl. Pt. 6, 198 W. Va. 563, 482 S.E.2d 180.

    The court further held in syllabus point 7 of Daily Gazette II that:

    [f]or a person to have brought a suit for the disclosure of public records under the West Virginia Freedom of Information Act (FOIA), as permitted by W. Va. Code § 29B-1-5 so as to entitle him/her to an award of attorney fees for 'successfully' bringing such suit pursuant to W. Va. Code §  29B-1-7 (1992), he/she need not have prevailed on every argument he/she advanced during the FOIA proceedings or have received the full and complete disclosure of every public record he/she wished to inspect or examine. An award of attorney fees is proper even when some of the requested records are ordered to be disclosed while others are found to be exempt from disclosure or are released in redacted form. In the final analysis, a successful FOIA action, such as would warrant an award of attorney fees as authorized by W. Va. Code § 29B-1-7, is one which has contributed to the defendant's disclosure, whether voluntary or by order of court, of the public records originally denied the plaintiff.

    Id. at Syl. Pt. 7 (Emphasis added). The court also held that: (1) a corporation was a "person" entitled to award of attorney fees under the FOIA, even though it did not succeed in every one of its requests for disclosure; (2) circuit court acted within its discretion in awarding full amount of attorney fees requested by corporation, even though corporation did not obtain the full measure of relief sought or prevail upon every contention it raised; and (3) rules established for award of attorney fees in mandamus proceedings do not apply to FOIA actions.

    Even if the plaintiff's success is due to the agency's capitulation prior to a ruling by the court, or to a settlement after suit is filed, she is entitled to an award of attorney fees, unless the settlement agreement specifically precludes such a claim. Jordan v. Nat’l Grange Mut. Ins. Co., 183 W. Va. 9, 393 S.E.2d 647 (1990).

    In addition to attorneys' fees, a successful plaintiff in a Freedom of Information Act suit is entitled to have court costs paid by the public body that has unlawfully withheld information. Smith v. Bradley, 223 W. Va. 286, 293, 673 S.E.2d 500, 507 (2007).

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  • Wyoming

    Look to specific provisions in the Wyoming Rules of Civil Procedures. Generally, courts have wide discretion in determining costs and attorney’s fees. The Supreme Court has held that the court has authority to modify attorneys' fees. State ex. rel. Wyo. Workers' Comp. Div. v. Brown, 805 P.2d 830 (Wyo. 1991). The Public Records Act has no provision for the award of attorney fees.

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