a. Attorney fees
There is no statutory provision for the award of attorneys' fees in public records cases in Alabama, but there is case law authority for the award of fees in open-government cases based upon a common-benefit theory. See Bell v. Birmingham News Co., 576 So. 2d 669 (Ala. Civ. App. 1991) (open meetings case; award of attorneys' fees upheld; citizens of Birmingham were benefited generally "by an action which enforces the requirements of the statute that the business of the City Council be conducted in open and public meetings"); Slawson v. Ala. Forestry Comm’n, 631 So. 2d 953, 959 (Ala. 1994) (open meetings case; award of reasonable costs and attorneys' fees "is appropriate when the trial court determines that a case will result in benefit to the general public") (remanded for determination of propriety of awarding fees); Advertiser Co. v. Auburn Univ., 579 So. 2d 645 (Ala. Civ. App. 1991) (recognizing discretionary right of trial court to award fees in public records case in which "a litigant rendered a public service by bringing an improper governmental practice to an end") (denial of fees upheld).
Despite the judicial approval for awarding attorneys' fees in public records cases, only one case could be found where a request for such an award has been granted. See Tuscaloosa News v. Garrison, CV-99-408 (Cir. Ct. Tuscaloosa Cnty. Jan. 15, 2001) (portion of fees granted; case involved both public records and open meetings issues). But see Advertiser Co. v. Auburn Univ., 579 So. 2d 645 (Ala. Civ. App. 1991) (denial of fees upheld); Birmingham Educ. Ass'n v. Birmingham City Bd. of Educ., CV 94-2637 (Cir. Ct. Jefferson Cnty., Ala., Nov. 15, 1995) (fees denied: "While the result of this litigation will result in a benefit to the public, the Court finds that it is not such a benefit that would justify making an exception to the 'American Rule' that each party should be responsible for its own legal expenses"); Blankenship v. City of Hoover, 590 So. 2d 245, 250 (Ala. 1991) ("In this case, there is no statute or contract providing for the award of attorney fees; and, based on the facts before us, we find no exceptions founded on equitable principles within which to fit this case. Therefore, we hold that the trial court did not err in refusing to award attorney fees."); Mobile Press Register Inc. v. Jordan, CV 95-1593 (Cir. Ct. Mobile Cnty., Ala., June 2, 1995) (claim for attorney fees denied, citing Blankenship, 590 So. 2d at 250).
A large hurdle in obtaining attorneys' fees in public records cases, however, 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. The Alabama Supreme Court has reversed an award of attorneys' fees in a declaratory judgment action (not an open-government case) based on section 14 state immunity. Ex parte Town of Lowndesboro, 950 So. 2d 1203 (Ala. 2006).
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., Jan. 15, 2001) (portion of fees granted; case involved both public records and open meetings issues).
Alaska is perhaps the only state with a general "loser pays" rule for attorney fees in most civil litigation. Instead of following the American Rule with respect to attorney fees, Alaska courts, following the “English Rule,” generally award partial attorney's fees to the prevailing party in a civil case pursuant to Alaska Civil Rule of Procedure 82, and sometimes in an appeal pursuant to Appellate Rule 508. 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. Civil Rule 82(b) specifies the amount of fees to be awarded to a prevailing party. Most cases involving access to public records or meetings would be governed by Rule 82(b)(2), applicable to cases in which the prevailing party recovers no money judgment. This rule provides that the court presumptively shall award the prevailing party in a case that goes to trial 30 percent of the prevailing party's reasonable actual attorney's fees which were necessarily incurred, and shall award the prevailing party in a case resolved without trial 20 percent of its actual attorney's fees that were necessarily incurred. The actual fees shall include fees for legal work customarily performed by an attorney but which was delegated to and performed by an investigator, paralegal or law clerk. However, the court may vary the presumptive attorney’s fee award if it finds this is warranted upon consideration of factors listed in Civil Rule 82(b)(3). If the court varies an award, it must explain the reasons for the variation. The prevailing party is the one who succeeds on the main issue. A party need not prevail on every issue to enjoy prevailing party status, nor need it achieve "formal judicial relief." The trial court may not municipal sales tax on attorney fees in a Rule 82 fee award. City of Kodiak v. Kodiak Public Broadcasting. Under the “catalyst theory,” a plaintiff who settles may be granted prevailing party status by proving: (1) that the goal of the litigation was achieved, meaning that the plaintiff succeeded on a significant issue and achieved a benefit for which the suit was brought, and (2) that the lawsuit was a catalyst in motivating the defendant to settle. Once the plaintiff makes this prima facie case, it is entitled to Rule 82(b)(2) attorney's fees unless the defendant proves that the lawsuit "lacked colorable merit.” Braun v. Denali Borough, 193 P.3d 719, 727 (Alaska 2008).
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 pay no fees if not. News media were routinely treated as public interest litigants in cases seeking access to public meetings and records. In one case concerning access to records, a superior court judge held that although the newspaper was the prevailing party, it should not recover full fees and costs as a public interest litigant because the judge assumed the paper was motivated in part by public-spiritedness, but also in part by a desire to sell newspapers. On appeal, the Supreme Court rejected this "split-the-baby" analysis, and ordered the superior court to award full fees and costs. Although the court said the determination of "public interest" status depends on the circumstances of each case, both the majority and dissenting opinions made clear that news media seeking access to public records would virtually always be public interest litigants. Anchorage Daily News v. Anchorage School District, 803 P.2d 402 (Alaska 1990). Determination of who is considered to be the prevailing party for purposes of Rule 82 is committed to the sound discretion of the trial court, see Alaska Wildlife Alliance v. Rue, 948 P.2d 976, 981 (Alaska 1997);Gwich'in Steering Committee v. Office of the Governor, 10 P.3d 572, 584 (Alaska 2000), as was the issue of status as a public interest litigant, Gwich'in, 10 P.3d at 585.
In 2003 the legislature amended AS 09.60.010 to abolish the public interest exception to Rule 82 for non-constitutional causes of action. A trial court judge invalidated the new law, but in 2007, the Alaska Supreme Court reversed. State of Alaska v. Native Village of Nunapitchuk v. State of Alaska, 156 P.3d 389 (Alaska 2007). The Supreme Court held that the public interest litigant exception was a common law gloss created by the courts interpreting Rule 82, not part of the rule itself. The Court found the rule was intended to serve the substantive purposes of shielding losing public interest litigants from adverse fee awards and encouraging pursuit of public interest litigation generally, not simply to deal with procedural matters within the core province of the judiciary. Since basing an award of fees on the public policy nature of litigation was an application of substantive law, it was within the province of the Legislature, and the Court therefore found the new statute was not invalid on its face. It said courts’ continuing discretion to consider a range of equitable and other factors in making awards under Rule 82 should not be used as an indirect way of using fee awards to encourage litigation of claims that can be characterized as involving the public interest, now that the Legislature has disallowed this. However, it also said that trial courts remain free to reduce awards that would otherwise be so onerous to the losing party as to deter similarly situated litigants from accessing courts.
The public interest litigant exception survives in the current statute in on limited respect—cases dealing with constitutional issues. However, conventional wisdom, and most case law to date assumes the claims made in access litigation, including for example the right of the press and public access to meetings and records, are statutory, not constitutional. In early 2018, the Alaska Supreme Court heard argument on an appeal filed by a news organization that had successfully pursued an action for certain police records under the state’s public records laws, and unsuccessfully sought an award of full, rather than partial, attorney fees. The plaintiff’s theory was that the abrogation of the public interest attorney fee rule did not apply because the radio station plaintiff should be considered a constitutional claimant, relying on references by the Legislature and courts to the right of access to public records as a “fundamental” right that, by implication at least, must be deemed to be in the nature of a constitutional right. See, City of Kodiak v. Kodiak Public Broadcasting Corp., P.3d , 2018 WL 4376160, at *6 (Alaska, September 14, 2018). The Court did not adopt the station’s position. However, somewhat surprisingly, the court did not expressly rule out the possibility that it might do so in a future case, finding that the radio station had only sought relief pursuant to the public records statute in the trial court, and had not raised a constitutional claim in its complaint. The station therefore could not have been found to have prevailed in asserting a constitutional claim, so that it was error to award fees on this basis. Intriguingly, the Court did not close the door on treating a records request based on citizens’ fundamental right of access as a constitutional claim; such an outcome would be a long shot.
The change in the public interest attorney fee exception to Alaska’s Civil Rule 82 has had and is likely to continue to have a significant adverse effect on the press. Between the general “loser pays” rule and elimination of the public interest exception, Alaska has become the only state that presumptively imposes fees and costs on the press and other public interest litigants who unsuccessfully pursue non-frivolous claims.
Before it was amended in 2006, A.R.S. § 39-121.02(B) provided for an award of attorneys’ fees against the records custodian if the custodian’s actions were “arbitrary, capricious, or in bad faith.” The current statute provides that “[t]he court may award attorney fees and other legal costs that are reasonably incurred in any action under this article if the person seeking public records has substantially prevailed.” A.R.S. § 39-121.02(B). Accordingly, attorneys’ fees and costs can now be assessed against any non-prevailing party. Arpaio v. Citizen Publ’g Co., 221 Ariz. 130, 133, 211 P.3d 8, 11 (Ct. App. 2008). Specifically, the statute “does not prohibit a trial court from requiring a party other than the custodian of the requested records to pay attorney fees to the prevailing party. The trial court may require parties adverse to the requesting party to pay that party’s attorney fees if the requesting party substantially prevails.” Id. at 134, 211 P.3d at 12.
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 defendant’s 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, 366 Ark. 277, 234 S.W.3d 875. Additionally, an award of fees and costs is inappropriate when the plaintiff files suit without giving the custodian sufficient time to locate the records. Hamilton v. Simpson, 67 Ark. App. 173, 993 S.W.2d 501 (1999). 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).
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. See Ark. Code Ann. § 25-19-104.
Fee Recovery under the CPRA: The court "shall award court costs and reasonable attorney’s fees" to the plaintiff should the plaintiff prevail in proceedings to compel disclosure of public records pursuant to CPRA. Cal. Gov't Code § 7923.115. The award of costs and fees is mandatory. Bernardi v. Cty. of Monterey, 167 Cal. App. 4th 1379, 1393, 84 Cal. Rptr. 3d 754 (2008). “The costs and fees shall be paid by the public agency of which the public official is a member employee and shall not become a personal liability of the public official.” Id.; cf. Pacific Merchant Shipping Ass’n v. Bd. of Pilots Comm’rs, 242 Cal. App. 4th 1043, 1061, 195 Cal. Rptr. 3d 358 (2015) (upholding fee award against port agent and holding that state officers acting in official capacity can be liable for fees under the CPRA).
Under the CPRA, a plaintiff prevails if the litigation motivated the defendant to release requested records. Bd. of Pilots, 242 Cal. App. 4th at 1053; Galbiso v. Orosi Pub. Util. Dist., 167 Cal. App. 4th 1063, 1085, 84 Cal. Rptr. 3d 788 (2008); Los Angeles Times v. Alameda Corridor Transp. Authority, 88 Cal. App. 4th 1381, 1391, 107 Cal. Rptr. 2d 29 (2001); Motorola Commc’n & Elecs. Inc. v. Dep’t of Gen. Servs., 55 Cal. App. 4th 1340, 64 Cal. Rptr. 2d 477 (1997) (timing alone may be sufficient to prove that plaintiff is prevailing party but where agency's delay could be attributed to uncertain nature of request and fact that agency's attorney on vacation, plaintiff did not show disclosure was motivated by lawsuit).
A requester may satisfy this test even if the litigation resulted in disclosure of less than all of the documents sought, as long as disclosure is not “minimal or insignificant.” Bd. Pilot, 242 Cal. App. 4th at 1053; see, e.g., Los Angeles Times, 88 Cal. App. 4th at 1391-1392 (plaintiff was prevailing party where court ordered disclosure of one of two documents sought); Bernardi, 167 Cal. App. 4th at 1396 (awarding fees to plaintiff despite county’s argument that petition was only partially successful, obtaining one-third of the documents requested); Riskin v. Downtown Los Angeles Prop Owners Assn, 76 Cal. App. 5th 438, 447, 291 Cal. Rptr. 3d 534 (2022)(remanding to trial court for determination of whether requester is prevailing party by analyzing whether the documents obtained were “so minimal or insignificant” to justify a finding the litigant did not prevail).
An order compelling the disclosure of records, however, is not necessary. Riskin, 76 Cal. App. 5th at 445; Beth v. Garamendi, 232 Cal. App. 3d 896, 901-02, 283 Cal. Rptr. 829 (1991) (judicial determination on merits not necessary to an award of attorneys' fees under statute). Where there is no order of disclosure, courts apply the catalyst theory where “[a] plaintiff is considered the prevailing party if his lawsuit motivated defendants to provide the primary relief sought or activated them to modify their behavior, or if the litigation substantially contributed to or was demonstrably influential in setting in motion the process which eventually achieved the desired results” (citations omitted). Id.; see, e.g., Bd. of Pilots, 242 Cal. App. 4th at 1056 (awarding fees under catalyst theory where litigation resulted in a holding that later caused public official to disclosure records he had previously withheld before litigation though the litigation did not result in an order compelling disclosure of any records); San Diegans for Open Gov’t v. City of San Diego, 247 Cal. App. 4th. 1306, 1321-22, 203 Cal. Rptr. 3d 34 (2016) (holding declaratory relief action motivated city to look for and produce emails stored on its system where it had previously improperly narrowed the request to exclude such records without seeking clarification from the requester as required under Section 6253.1 of the Government Code).
The lesser standard may apply than the catalyst theory where the court orders some relief sought in the lawsuit or disclosure of some of the records. At least one court has refused to apply the catalyst theory’s higher standard (lawsuit motivates defendants to provide primary relief sought) and instead held that a plaintiff is successful “if it succeeds on any significant issue in the litigation and achieves some of the benefits sought in the lawsuit.” Garcia v. Governing Bd. of Bellflower Unified Sch. Dist., 220 Cal. App. 4th 1058, 1065-66, 163 Cal. Rptr. 3d 689 (2014) (order requiring district to provide written response stating whether there were other responsive records—even where, in large part, there were none—deemed sufficient evidence to support trial court’s determination that plaintiff “succeeded on a significant issue in the ligation and achieved some of the benefits sought”).
A law firm representing itself in a CPRA action brought to benefit a third-party client is entitled to recover its fees. Law Offices of Marc Grossman v. Victor Elementary, 238 Cal. App. 1010, 1014, 190 Cal. Rptr. 3d 86 (2015).
Courts have awarded multipliers in CPRA cases. For example, in Bernardi, the court approved a multiplier of 1.25 to enhance the lodestar amount of attorney fees “in recognition of counsel’s contingency fee risk and the significant delay in obtaining payment of attorney fees, as well as the unique issues presented.” Bernardi, 167 Cal. App. 4th at 1399.
Orders either granting or denying attorney fees under Section 7923.115(a) are reviewable by appeal. Los Angeles Times, 88 Cal. App. 4th at 1388.
The CPRA also provides for recovery of fees from the plaintiff should the agency prevail and the court find that the lawsuit was “clearly frivolous.” Cal. Gov't Code § 7923.115(b). A frivolous action is one that is either “‘(A) totally and completely without merit or (B) [brought] for the sole purpose of harassing an opposing party.’” Crews v. Willows Unified Sch. Dist., 217 Cal. App. 4th 1368, 1381-82, 159 Cal. Rptr. 3d 484 (2013) (quoting Cal. Code of Civ. Proc. § 128.5) (holding that while petition lacked merit, action was not clearly frivolous within meaning of [Section 7923.115(b)); Bertoli v. City of Sebastopol, 233 Cal. App. 4th 353, 376-77, 182 Cal. Rptr. 3d 308 (2015) (overturning trial court order awarding fees to agency despite characterization of request as overbroad).
Fees in Reverse CPRA Actions: Because the CPRA limits the award of attorney’s fees to requesters who prevail after “seeking a judicial determination of a public agency’s obligation to disclose records in the event the agency denies a request by a member of the public,” at least one court has held that a requester is not entitled to attorney’s fees under the CPRA after successfully litigating against a party attempting to prevent an agency from disclosing public records. Nat’l Conference of Black Mayors v. Chico Cmty. Publ’g, Inc., 25 Cal. App. 5th 570, 575, 236 Cal. Rptr. 3d 1 (2018) (quoting Filarsky v. Superior Court, 28 Cal. 4th 419, 423, 426, 121 Cal. Rptr. 2d 844, 49 P.3d 194 (2002)). In this reverse CPRA context, the court reasoned that actions to prevent disclosure of public records do not arise under the CPRA nor do they seek to achieve the purpose of the Act—"to compel a public agency to disclose records it refuses but is obligated to disclose.” Id.
However, fee awards against the party bringing suit to prevent disclosure of public records may be awarded under the fee-shifting provisions of the private attorney general statute. See Cal. Civ. Proc. Code § 1021.5; see, e.g., Cty. of Los Angeles v. Metropolitan Water Dist. of Southern Cal., 42 Cal. App. 5th 290, 302-03, 255 Cal. Rptr. 3d 202 (2019); (holding that water district public agency filing a reverse CPRA action to block access to customer water usage data held by another water district, which data was necessary to monitor the use and alleged misuse of public funds, could be assessed newspaper’s attorney’s fees under Code of Civil Proc. 1021.5); Pasadena Police Officers Ass’n v. City of Pasadena, 22 Cal. App. 5th 147, 160, 166, 231 Cal. Rptr. 3d 292 (2018) (holding newspaper entitled to recover attorneys fee under attorney general statute for all stages of litigation, including appeal, from police union and officials who tried to prevent disclosure of public record).
Attorneys' fees and court costs 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. Colo. Rev. Stat. § 24-72-204(5).
A "prevailing applicant" is "any person who applies for and receives an order from the district court requiring a custodian to permit inspection of a public record," even if that order permits inspection of less than all the records the applicant requested. Benefield v. Colo. Republican Party, 329 P.3d 262, 268 (Colo. 2014).
(This section is blank. See the point above.)
A court may award attorneys’ fees to the successful plaintiff in an action brought under the Act. A court may 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. 29 Del. C. § 10005(d); see Bd. Of Managers of the Delaware Crim. Just. Info. Sys. v. Gannett Co., 2003 WL 1579170 (Del. Super. Jan. 17, 2003) (awarding attorneys’ fees and costs to requesting party).
Prior to 1984, a prevailing party was entitled to attorneys’ fees only when an agency’s refusal to allow access to records was “unreasonable.” WFSH of Niceville v. City of Niceville, 422 So. 2d 980 (Fla. 1st DCA 1982) (city justifiably withheld election records until court order was obtained where the city was incorrectly advised to do so); Douglas v. Michel, 410 So. 2d 936 (Fla. 5th DCA 1982) (refusal must be unreasonable to recover costs and attorney fees under Chapter 119). However, the attorney fee provision authorizes attorney fees and costs whenever the court finds that the agency unlawfully refused access and proper notice was given before filing suit. Fla. Stat. § 119.12(1) (2020). See Jackson-Shaw Co. v. Jacksonville Aviation Auth., 510 F. Supp. 2d 691, 737 (M.D. Fla. 2007) (finding that to receive attorney’s fees the action filed must be to enforce the provisions of Chapter 119 and the delay in producing the documents must constitute an unlawful refusal to provide access to the requested public records); see also B & S Utils., Inc. v. Baskerville-Donovan, Inc., 988 So. 2d 17, 23 (Fla. 1st DCA 2008) (holding that private engineering firm acting as agent for government entity was not liable for plaintiff’s attorneys’ fees incurred in bringing suit based on engineering firm’s denial of records because plaintiff failed to prove that denial was not done in good faith belief that firm was not an agency of the government given that agency status of engineering firm was questionable); Office of State Attorney v. Gonzalez, 953 So. 2d 759, 764 (Fla. 2d DCA 2007) (holding that State Attorney’s office was liable for attorneys’ fees incurred in filing suit to obtain public records, even though failure to produce records was allegedly due to mistake, and refusing to “engraft upon the statute an additional obligation for a plaintiff to make repeated requests before filing suit to enforce public records rights”) (citing cases); News on Sun-Sentinel Co. v. Palm Beach Cnty., 517 So. 2d 743 (Fla. 4th DCA 1987) (attorneys’ fees awardable even when access was denied in good faith mistaken belief that documents were exempt from disclosure); Harold v. Orange Cnty., 668 So. 2d 1010, 1012 (Fla. 5th DCA 1996) (refusing to assess attorneys’ fees against private party “acting on behalf of” agency, based on “good faith — even if incorrect — refusal to disclose records”); Fla. Dep’t Law Enf. v. Ortega, 508 So. 2d 493 (Fla. 3d DCA 1987); Wisner v. City of Tampa, 601 So. 2d 296 (Fla. 2d DCA 1992); News-Press Publ’g Co. v. Gadd, 432 So. 2d 689 (Fla. 2d DCA 1983) (question of whether award of attorneys’ fees was justified is decided by trial court as a question of fact); Downs v. Austin, 559 So. 2d 246 (Fla. 1st DCA 1990) (attorneys’ fees awardable for successful appeal of a denial of access); Times Publ’g Co. v. City of St. Petersburg, 558 So. 2d 487 (Fla. 2d DCA 1990) (same); WFTV Inc. v. Robbins, 625 So. 3d 941 (Fla. 4th DCA 1993) (order denying fees for non-intentional violation of Chapter 119, reversed); Barfield v. Town of Eatonville, 675 So. 2d 223 (Fla. 5th DCA 1996) (attorneys’ fees and costs awarded to plaintiff when defendant disclosed documents only after legal intervention; defendant’s unreasonable delay in disclosing documents constitutes “unlawful refusal” which entitles plaintiff to attorneys’ fees); Weeks v. Golden, 764 So. 2d 633 (Fla. 5th DCA 2000) (State Attorney must produce a legally acceptable excuse for failing to disclose public records to avoid paying plaintiff’s attorneys’ fees).
While a prevailing party is entitled to attorneys’ fees when access is unlawfully withheld, “[d]elay in providing access cannot in itself create liability for attorney’s fees under the Public Records laws.” Irwin v. Miami-Dade Cnty. Pub. Schs., 2009 WL 465066, at *5 (S.D. Fla. Feb. 24, 2009) (citing Gonzalez, 953 So. 2d at 765). A delay “does not in and of itself create liability under section 119.12.” Siegmeister v. Johnson, 240 So. 3d 70, 73 (Fla. 1st DCA 2018). “Reasonable delay is allowed.” Id. Where the delays are not justified, the Public Records Law holds officials accountable for attorneys’ fees. Id.
In any enforcement action in which the court determines that a person or entity acted without substantial justification in not complying with the Act (or in instituting the litigation), the court may assess reasonable attorney’s fees. O.C.G.A. § 50-18-73(b).
A counterclaim for such fees filed during the pendency of the action is 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).
In State v. Earthjustice, No. 29289, 2009 WL 2371920 (Aug. 3, 2009), the Intermediate Court of Appeals reversed a trial court order awarding attorneys’ fees and costs to the requester in a declaratory action brought by the State to recover materials that the Department of Health, Clean Water Branch (“CWB”) erroneously disclosed to the requester in response to an UIPA request. The court reasoned that HRS § 92F-15(d) provides for an award of fees and costs to a “complainant” [who] prevails in an action brought under this section . . . .,” and that the phrase “an action brought under this section” refers to HRS § 92F-15. That section provides a right of action to a “person aggrieved by a denial of access to a government record . . . .” In this case, the requester was not a “person aggrieved by a denial of access to a government record” because the CWB never denied access to any governmental record. Rather, the CWB had granted the records request in its entirety, albeit erroneously. Id. at *5.
Pursuant to the FOIA’s 2010 amendment, attorneys’ fees shall be awarded to any requester who “prevails.” See 5 ILCS 140/11(i). Under the prior version of the Act, courts had discretion to award attorneys’ fees to requesters that “substantially prevailed.” The language of the amended Act signals that courts no longer have much discretion in deciding whether or not to award attorneys’ fees—they must award fees and costs if they determine that the requester prevailed. See 5 ILCS 140/11(i). Also, the new FOIA’s “prevail” standard differs from the old FOIA (and the federal FOIA)’s “substantially prevail” standard. See Uptown People’s Law Center v. Dep’t of Corr., 2014 IL App (1st) 130161, 7 N.E. 3d 102, 379 Ill. Dec. 676 (“if a plaintiff files a FOIA action with respect to five documents and is successful with respect to only one, the plaintiff is entitled to attorney fees incurred with respect to that document, despite having failed with respect to the remaining four.”)
A court order is not a prerequisite for the awarding of attorney’s fees. Id. ¶ 21.
The burden of proving that an award of attorneys’ fees is warranted rests upon the party seeking the fees. See People ex rel. Ulrich v. Stukel, 294 Ill. App. 3d 193, 202, 689 N.E.2d 319, 325-26, 228 Ill. Dec. 447, 453-54 (1st Dist. 1997).
Also, requesters who bring suit without the aid of a lawyer are not entitled to attorneys’ fees. See Court Action, “pro se,” supra.
The court shall award attorney fees to a plaintiff who substantially prevails, provided the plaintiff sought and received an informal inquiry response or advisory opinion from the Public Access Counselor before filing suit, unless plaintiff can show the action was necessary because the denial of access would prevent the plaintiff from presenting that public record to a public agency preparing to act on a matter of relevance to the public record. Ind. Code § 5-14-3-9(i). Note that subsection (k) applies to a denial of a law enforcement recording. Under this subsection, a requestor seeking a law enforcement recording may bring suit without first seeking an informal inquiry or an advisory opinion from the Public Access Counselor, and the request may receive attorney’s fees if the requestor prevails. Ind. Code § 5-14-3-9(k)
An award of attorney fees to a defendant who substantially prevails is discretionary if the court finds the action was frivolous or vexatious. Ind. Code § 5-14-3-9(i). See Anderson v. Huntington Cnty. Bod. Of Comm’rs for an example of when a plaintiff does not “substantially” prevail. 983 N.E.2d 613, 619 (Ind. Ct. App. 2013) (holding that the plaintiff did not “substantially” prevail because his requests were not reasonably particular). A defendant may not avoid attorney fees by claiming that it did not intend to violate the Access to Public Records Act, and a court may second-guess that defendant’s argument that the defendant denied the request in good faith. City of Elkhart v. Agenda: Open Gov’t, Inc., 683 N.E.2d 622, 628 (Ind. Ct. App. 1997). Note that the court in City of Elkhart states that it is within the trial court’s discretion to award attorney fees to the plaintiff, but the statute has since been amended to provide mandatory attorney fees to the substantially prevailing plaintiff. Id. at 627; Ind. Code § 5-14-3-9(i). The court may allocate attorney fees between the public agency and a private entity by considering various factors. See Shepard Props. Co. v. Int’l Union of Painters and Allied Trades, 972 N.E.2d 845, 853 (Ind. 2012).
A pro se attorney may not be awarded attorneys’ fees under the Access to Public Records Act. Marion Cnty. Election Bd. v. Bowes, 53 N.E.3d 1203, 1209 (Ind. Ct. App. 2016).
Attorney fees are awarded from the date of the Public Access Counselor’s opinion until the date a prevailing party is determined. Indianapolis Newspapers v. Indiana State Lottery Comm’n, 739 N.E.2d 144, 156 (Ind. Ct. App. 2000). They are not to be limited by disclosure of the requested records if litigation is still pending. See id. (holding that the Lottery remained liable for attorney’s fees until a determination of whether the denial of access was proper); Hydrotech Corp. v. Ind. Office of Envt’l Adjudication, 862 N.E.2d 10 (Ind. Ct. App. 2007) (unpublished) (holding that the trial court erred by limiting the attorney’s fee award).
Appellate attorney fees may be awarded under Indiana Appellate Rule 67. See Heber v. Indianapolis Metropolitan Police Dep’t, 58 N.E.3d 995, 997–98 (Ind. Ct. App. 2016) (awarding appellate attorney fees in the Access to Public Records context).
Both the plaintiff and defendant in a civil action brought under KORA may recover attorney fees. For the requester, the court “shall award costs and a reasonable sum as an attorney's fee for services rendered in such action, including proceedings on appeal, to be recovered and collected as part of the costs to the plaintiff if the court finds that the agency's denial of access to public records was not in good faith and without a reasonable basis in fact or law. The award shall be assessed against the public agency that the court determines to be responsible for the violation.” K.S.A. 45-221(d). For the agency, “the court shall award to the defendant costs and a reasonable sum as an attorney's fee for services rendered in such action, including proceedings on appeal, to be recovered and collected as part of the costs if the court finds that the plaintiff maintained the action not in good faith and without a reasonable basis in fact or law.” K.S.A. 45-221(e).
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). See Brown v. Serpas, 146 So.3d 748 (La.App. 4th Cir. 2014 (awarding $17,900 in attorneys’ fees); Krielow v. LSU Bd. of Supervisors, 290 So.3d 1194 (La.App. 1st Cir. 2019) (affirming award of $26,070 in attorneys’ fees).
As a practical matter, agencies may produce records after a suit is filed but before the court rules. This sometimes leads to a denial of attorneys’ fees, on the theory that the requestor did not prevail “in such suit.” The Court in Louisiana Capital Assistance Center v. Dinvault, 207 So.3d 1187 (La.App. 5th Cir. 2016) rejected that reasoning and awarded the requested $2200 of fees and costs. Similarly, the Court in Heath v. City of Alexandria, 11 So.3d 569 (La.App. 3d Cir. 2009, awarded the plaintiff $2500 in fees.
Reasonable attorney’s fees may be recovered by the substantially prevailing plaintiff if the court determines that the refusal or illegal action “was committed in bad faith.” 1 M.R.S.A. § 409(4). Attorney’s fees and litigation costs may not be awarded to or against a federally recognized Indian tribe. Id.
The awarding of attorney fees lies with the discretion of the trial court. Caffrey, 370 Md. at 299. When the condition that the plaintiff "substantially prevail" is met, the court must exercise its discretion in determining whether an award of fees is appropriate. Kirwan v. The Diamondback, 352 Md. 74, 95, 721 A.2d 196, 206 (1998). The PIA offers no guidance for the exercise of that discretion. However, the Maryland Court of Appeals has held that the trial court must consider the following non-exclusive factors: (1) the public benefit derived from the suit; (2) the nature of the complainant's interest in the released information; (3) whether the agency had a reasonable legal basis for withholding the information. 352 Md. at 96, 721 A.2d at 207, citing with approval, Kline v. Fuller, 64 Md. App. 375, 386, 496 A.2d 325, 331 (1985).
The statute was amended in 2016 and courts are now allowed to grant reasonable attorney fees under MGL c. 66, § 10(A)(c)-(d).
Mich. Comp. Laws § 15.240(6) states that if the plaintiff prevails in an action commenced under this section, the plaintiff shall be awarded attorney’s fees. If the requesting person only prevails in part, "the court may, in its discretion, award all or an appropriate portion of reasonable attorney’s fees, costs, and disbursements." Id. But, Detroit Free Press v. Dep’t of Attorney General, 271 Mich. App. 418, 722 N.W.2d 277 (2006) states that where a plaintiff did not commence the action under section, 15.240, the plaintiff was not entitled to attorney’s fees. The controlling criterion in reviewing an award of attorney’s fees under the act is the reasonableness of the fees awarded. Mich. Tax Mgmt. Servs. Co v. Warren, 437 Mich. 506, 473 N.W.2d 263 (1991).
Attorneys’ fees are recoverable if there is an open-records violation. § 25-61-15; see also Mississippi Dep't of Audit v. Gulf Publ'g Co., Inc., 236 So. 3d 32, 41 (Miss. 2017).
If the court finds a knowing violation, it may award costs and attorneys’ fees. Mo.Rev.Stat. § 610.027.3. If the court finds a purposeful violation, the court shall award costs and attorneys’ fees. Mo.Rev.Stat. § 610.027.4. A governmental body must knowingly violate the Sunshine Law, not merely know that it failed to produce a document, for a trial court to impose a civil penalty or assess costs and attorneys’ fees. Laut v. City of Arnold, 491 S.W.3d 191, 199 (Mo. 2016). The governmental body’s purpose must be to violate the Sunshine law, not merely to not produce the report. Id.
A “prevailing plaintiff” is entitled to recover attorney’s fees. However, whether to award and the amount of fees is discretionary with the courts. When the public body starts the lawsuit by petitioning for declaratory judgment asking the court to decide whether records are public, the requestor is not a “prevailing plaintiff” and cannot recover attorney’s fees, even when the court orders disclosure. Billings High School District v. Billings Gazette, 2006 MT 329, 335 Mont. 94, 149 P.3d 565.
The Statute provides for fees where “the public body, public agency, or person knew or should have known that the conduct engaged in was a violation of this chapter.” RSA 91-A:8,I.
N.J.S.A. 47:1A-6 provides “a requester who prevails in any proceeding shall be entitled to a reasonable attorney’s fee.”
Attorney fees are recoverable. NMSA 1978 § 14-2-12(D).
See Lee Enters., Inc. v. City of Glens Falls, 2016 NY Slip Op 51709(U), ¶ 3, 53 Misc. 3d 1217(A), 50 N.Y.S.3d 26 (N.Y. Sup. Ct. Warren Cty. 2016) (awarding counsel fees where agency did not have a reasonable basis for denying access to the record requested because agency’s “reasons for denying the request repeatedly changed and, ultimately, rested on an argument that lacked merit”) Matter of Maddux v. N.Y. State Police, 64 AD3d 1069, 1070, 883 N.Y.S.2d 365 (2009), lv denied 13 N.Y.3d 712, 919 N.E.2d 719, 891 N.Y.S.2d 304 (3d Dep’t 2009) (holding that a court may award counsel fees in a FOIL proceeding where a litigant has substantially prevailed and when the agency had no reasonable basis for denying access to the records or documents in question) (quotation marks and citations omitted); Fenstermaker v. Edgemont Union Free Sch. Dist., 48 A.D.3d 564, 856 N.Y.S.2d 115 (1st Dep’t 2008) (initiation of frivolous article 78 proceeding challenging the copying fee arrangement expressly provided for by statute, and which had no basis in law or fact, may be sanctioned by imposing costs, including attorney’s fees, against the petitioner who initiated such action).
A requester who prevails in a civil suit brought pursuant to the Public records law may seek an award of attorney fees. The statute was amended to make an award of attorney fees to a party winning access virtually mandatory. The court “shall” award fees unless the noncompliant public agency was following a judgment or order of a court, a published appellate opinion, or a written opinion from the attorney General. G.S. § 132-9(c). The Court can enter an award of attorney’s fees against a public employee or official who is determined to have knowingly or intentionally committed, caused, permitted, suborned or participated in a violation of the public records law. G.S. § 132-9(c).
The court may award reasonable attorney’s fees against the entity. N.D.C.C. § 44-04-21.2(1).
The Law provides for the possibility that attorneys’ fees and costs may be awarded to the prevailing party.
“If a court reverses the final determination of the appeals officer or grants access to a record after a request for access was deemed denied, the court may award reasonable attorneys’ fees and costs of litigation or an appropriate portion thereof to a requester if the court finds either of the following:
- the agency receiving the original request willfully or with wanton disregard deprived the requester of access to a public record subject to access under the provisions of this act; or
- the exemptions, exclusions or defenses asserted by the agency in its final determination were not based on a reasonable interpretation of the law.”
65 Pa. C.S.A. § 67.1304(a)(1)(2).
See, e.g., Sherry v. Radnor Twp. Sch. Dist., No. 07-08995 (Delaware Cty. C.P. Ct., June 30, 2008) (ordering the school district to pay nearly $30,000 in costs and attorneys’ fees to the requester for “willfully or with wanton disregard” denying access); but see Pa. State Troopers Assoc. v. Scolforo, 18 A.3d 435 (Pa. Commw. Ct. 2013) (citing Hearst Television, Inc. v. Norris, 8 A.3d 420 (Pa. Commw. Ct. 2010) (denying costs and attorneys’ fees to the requester for failure to show that the intervening party objecting disclosure did so in bad faith, arbitrarily, or to vex the request or requester).
The court shall award reasonable attorneys’ fees to the prevailing plaintiff. R.I. Gen. Laws § 38-2-9(d). If the court finds in favor of the defendant and also further finds that that the plaintiff's case was not grounded in fact, existing law, or in good faith argument for the extension, modification, or reversal of existing law, the court has the discretion to award attorneys’ fees to the prevailing defendant. R.I. Gen. Laws § 38-2-9(d).
The Act makes an award of attorney's fees discretionary with the court, if "the court finds that a governmental entity, or agent thereof, refusing to disclose a record knew that such record was public and willfully refused to disclose it." T.C.A. § 10-7-505(g) (1999). This provision was added in 1988. See The Capital Care Resource Center of Tennessee v. Woodall, 17 TAM 8-8, pp. 16-18 (Tenn. Ct. App. Jan. 29, 1992) (discussing standard for award of attorneys' fees under § 10-7-505(g)); Memphis Publishing Co. v. City of Memphis, 17 TAM 37-5 (Tenn. Ct. App. August 26, 1992) (reversing trial court's award of attorneys' fees under § 10-7-505(g) after the appellate court reversed the trial court's ruling allowing access to depositions); Abernathy v. Whitley, 19 TAM 19-10 (Tenn. Ct. App. April 24, 1992) (denying attorney’s fees because the refusal of opposing attorneys to grant respondent access to records was not willful); Combined Communications Inc. v. Solid Waste Region Board, 19 TAM 19-10 (Tenn. Ct. App. April 13, 1994) (affirming award of attorney’s fees where records custodian had no legitimate basis for claiming that non-confidential letter was protected by the attorney client privilege).
The "knowing and willfully" standard is synonymous with "bad faith." See Black's Law Dictionary 127 (5th ed. 1979); Greer v. City of Memphis, 356 S.W. 3d. 917 (Tenn. Ct.App. 2010); Contemporary Media Inc. v. City of Memphis, 1999 Tenn. App. LEXIS 298. In one case, a city's refusal to disclose certain documents claiming that it was bound by a court order declaring confidentiality (such a defense was flawed since only the legislature can declare records to be confidential) was considered willful refusal to disclose, and therefore, attorney fees were awarded. Contemporary Media Inc. v. City of Memphis, 1999 Tenn. App. LEXIS 298. In another case, the court did not assess attorney fees because the city did not know that confidentiality of certain documents had been waived by its actions, and that the documents in question had become public record. Arnold v. City of Chattanooga, 19 S.W.3d 779. Attorney’s fees were appropriate where a city filed a lawsuit to obtain an ex parte protective order to keep confidential a settlement agreement between the city and the widow of a police shooting victim. Tennessean v. Lebanon, 32 Med. L. Rptr. 2304 (Tenn. Ct. App. Feb. 13, 2004) (court found no basis for city's refusal to provide settlement agreement).
In 2008 the statute was amended to state, “In determining whether the action was willful, the court may consider any guidance provided to the records custodian by the Office of Open Records Counsel.” T.C.A. § 10-7-505(g). Presumably, a court would likely find a refusal to grant access to the records willful if the Open Records Counsel had told the custodian to grant access and the custodian failed to follow that advice.
In Friedman v. Marshall County, 2015 WL 4772825 (Tenn. Ct. App. June 24, 2015) the court ruled “that a heightened showing of ‘ill will’ or ‘dishonest purpose’ is not necessary in order to establish willfulness under the statute”; Taylor v. Town of Lynnville, 2017 Tenn. App. LEXIS 469 (July 13, 2017) (a finding of willfulness does not automatically require an award of attorney’s fees, but refusing to allow an inspection unless the requestor pays a search and/or copying fee is a willful refusal because no such fee may be charged for merely inspecting records).
Attorney’s fees are recoverable for the party who substantially prevails. To qualify as a prevailing party, there must be judicially sanctioned “relief on the merits” that “materially alters the legal relationship between the parties.” Intercontinental Grp. P'ship v. KB Home Lone Star L.P., 295 S.W.3d 650, 653-54 (Tex. 2009). However, 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. Tex. Gov’t Code § 552.323(a). The court also considers whether the conduct of the governmental body had a reasonable basis in law and whether the litigation was brought in good faith. Tex. Gov't Code § 552.323(b).
The court may choose not to award attorney’s fees, especially if an attorney’s firm represents him on the matter. Simmons v. Kuzmich, 166 S.W.3d 342, 350 (Tex. App.—Fort Worth 2005, no pet.) (“Kuzmich's testimony provides a complete admission that neither his associate nor his firm were contemplating payment of attorneys' fees in connection with representing him in this matter. On cross-examination, Kuzmich admits that neither he nor anyone from his office is billing for time spent representing him or incurring fees and that he has only ‘lost some time in the office.’”).
The court may assess against the government entity the reasonable attorneys’ fees incurred by the requester if the requester substantially prevails on appeal. See Utah Code § 63G-2-802(2). The court shall award attorneys’ fees and costs to prevailing records requesters if the government entity asserts the records are confidential under Utah Code section 63-2-405 and the court denies confidential treatment under that section and determines that no statutory or constitutional exemption from disclosure “could reasonably apply to the record in question.” Id. § 63G-2-405(2).
Reasonable attorneys’ fees and other litigation expenses are mandatory if the aggrieved requestor substantially prevails. 1 V.S.A. § 319(d)(1). Despite the use of the word “shall” in the statute, at least one Vermont court has read into the statute a measure of discretion in the terms “reasonably” and “substantially prevailing.” 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). Attorneys’ fees and other litigation costs also may be assessed if the public entity concedes that the documents are public records and provides the records within the time to answer under the Vermont Rules of Civil Procedure. Id. at (d)(2). Finally, if the person seeking the records violates Rule 11 of the Vermont Rules of Civil Procedure, attorneys’ fees and other litigation costs may be assessed against him or her. Id. at (d)(3).
Earlier this year, the Vermont Supreme Court held that the attorneys’ fees provision of the Public Records Act precludes the award of attorneys’ fees to substantially prevailing self-represented litigants, even if they are attorneys. Toensing v. Attorney Gen. of Vt., 2019 VT 30, ¶ 23 (Vt. 2019).
A requester who prevails against an agency that has denied a record must be awarded their costs, including reasonable attorneys’ fees. RCW 42.56.505(4).
Reasonable attorney fees may be awarded to successful FOIA plaintiffs. Daily Gazette Co. Inc. v. W. Va. Development Office, 206 W. Va. 51, 521 S.E.2d 543 (1999) (“Gazette II”). West Virginia Code section 29B-1-7 provides:
“Any person who is denied access to public records requested pursuant to this article and who successfully brings a suit filed pursuant to section five of this article 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. In Smith v. Bradley, the Court outlined the rules relating to eligibility and entitlement for an award of statutory attorney fees:
Under § 29B-1-7 the successful FOIA Plaintiff 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's 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's 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.
Smith v. Bradley, 223 W. Va. 286, 292, 673 S.E.2d 500, 506 (2007) (citing Daily Gazette Co. Inc. v. W. Va. Development Office, 206 W. Va. 51, 521 S.E.2d 543 (1999) (“Gazette II”)).