b. Court and litigation costs

The Public Records Law contains no reference to award of costs; therefore, Public Records Law 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."

Unless the court otherwise directs, the prevailing party is presumptively entitled to recover specified costs allowable under paragraph Rule 79(f) that were necessarily incurred in the action. Award of costs on appeal are governed by Ak.App.Rule 508. The Supreme Court once held that costs may not be assessed against a losing public interest litigant, in McCormick v. Smith, 799 P.2d 287, 288 (Alaska 1990). However, as discussed in more detail in the preceding subsection 9(a), a 2003 statute, upheld by the Supreme Court, precludes awarding full costs to prevailing parties, or sheltering non-prevailing parties from an award of costs, simply based on their status as “public interest litigants” in non-constitutional cases.  AS 09.60.010.

In Hickel v. Southeast Conference, 868 P.2d 919 (Alaska 1994), 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.

For discussion of related issues, see Open Meetings Guide,, §IV.C.9.

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The FOIA provides for recovery of “litigation expenses” in addition to attorneys’ fees. Ark. Code. Ann. § 25-19-107(d). A trial court has the discretion to award those costs if the plaintiff “substantially prevail[s]” and the defendant’s actions were “substantially justified.” Id.; City of Little Rock v. Carpenter, 374 Ark. 551, 288 S.W.3d 647 (2008).

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(a).

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).

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Costs may be awarded. 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).

Reasonable costs are recoverable by a prevailing plaintiff as described above.

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 “and other litigation costs reasonably incurred.” O.C.G.A. § 50-18-74(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., 310 Ga. 279, 849 S.E.2d 660 (2020).

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).

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).

The 2010 FOIA for the first time entitles a requester who prevails to recover costs.  See 5 ILCS 140/11(i).  The Act does not define or limit the term “costs.”

Under the Indiana Trial Rules generally, costs are awarded to the prevailing party as a matter of course,. Ind. Trial Rule 54(D).  In addition to attorney fees, the Access to Public Records Act specifically provides that the court shall award “court costs and other reasonable litigation expenses” to the party who substantially prevails.  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).

Costs are limited to filing fees and statutory witness fees. VanWinkle v. Nash, 761 N.E.2d 856, 861 (Ind. Ct. App. 2002). See also Marion Cnty. Election Bd. v. Bowes, 53 N.E.3d 1203, 1209–10 (Ind. Ct. App. 2016) (holding that potential business opportunities that pro se attorney rejected to pursue Access to Public Records action were not “expenses”).

The trial court is the appropriate venue to determine whether a party is entitled to court costs. Holleman v. Indiana Dep’t of Correction, 27 N.E.3d 293, 296 (Ind. Ct. App. 2015).

Costs and fees shall be assessed to any plaintiff successfully establishing a violation of chapter 22. Iowa Code § 22.10(3)(c).  They may be imposed upon the particular persons who were assessed damages under section 22.10(3)(b). Id.

Both the plaintiff and defendant in a civil action brought under KORA may recover costs.  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).

A Circuit Court may award a successful requester costs and reasonable attorney fees incurred if the requester prevails against the agency and the agency willfully withheld records in violation of the Kentucky Open Records Act. Ky. Rev. Stat. 61.882(5).

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).

Court costs may be recovered as in any civil action. In addition, reasonable litigation expenses 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).

Reasonable court costs actually incurred are also recoverable.  § 4-362(f).

The statute was amended in 2016 and courts are now allowed to grant reasonable attorney fees under MGL c. 66, § 10(A)(c)-(d).

See Mich. Comp. Laws § 15.240(6).

Costs may be recoverable for parties seeking access to data and for persons about whom data was wrongfully revealed. Minn. Stat. § 13.08, subds. 1 and 4.

Likely recoverable. § 25-61-15; Mississippi Dep't of Audit v. Gulf Publ'g Co., Inc., 236 So. 3d 32, 41 (Miss. 2017).

See above.

A governmental body does not pay “costs” of a court action, so the only cost recovery occurs when the requestor prevails. In such case the requestor usually always recovers costs.

The court can assess litigation costs reasonably incurred by the complainant if he or she has substantially prevailed.

Recoverable. NRS 239.011(2).

Costs may be awarded where the court finds that the lawsuit "was necessary in order to make the information available or the proceeding open to the public." RSA 91-A:8, I. See N.H. Challenge Inc. v. Commissioner, N.H. Department of Education, 142 N.H. 246 (1997); Veelbel v. Town of Bridgewater, 140 N.H. 446 (1995); Chambers v. Gregg, 135 N.H. 478 (1992); Orford Teachers Ass'n v. Watson, 122 N.H. 803 (1982).

Some costs are recoverable.  NMSA 1978 § 14-2-12(D).

See above.

This is not addressed in the statute.

The court may award costs and disbursements against the entity. N.D.C.C. § 44-04-21.2(1).

Ohio Rev. Code § 149.43(C)(2)(a) states that if a court orders a public office to comply with the Public Records Act, or if it finds that an agency has acted in bad faith regarding a request, then the court shall order court costs to the requester. Ohio Rev. Code § 149.43(C)(2)(a).

Court costs may be awarded at the discretion of the court. 12 O.S. § 927.

See above.

The court may also award fees and costs to an agency or requester as a “sanction for frivolous requests or appeals.” The Law states: “The court may award reasonable attorneys’ fees and costs of litigation or an appropriate portion thereof to the agency or the requester if the court finds that the legal challenge under this chapter was frivolous.” 65 Pa. C.S.A. §§ 67.1304(a)(1)(2), 1304(b).

The court shall award reasonable costs to the prevailing plaintiff. R.I. Gen. Laws § 38-2-9.  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 aware reasonable costs to the prevailing defendant. R.I. Gen. Laws § 38-2-9.

See above.

Unlikely

The same willful standard for attorney’s fees also applies to “all reasonable costs involved in obtaining the record.” T.C.A. § 10-7-505(g).

Court costs are recoverable for the party who substantially prevails.  However, costs 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 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.” Utah Code § 63G-2-405(2).

Attorneys’ fees and other litigation expenses are mandatory if the aggrieved requestor substantially prevails.  1 V.S.A. § 319(d)(1).  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).

Reasonable costs, including costs and reasonable fees for expert witnesses, can be awarded where the petitioner substantially prevails and where there are no special circumstances making the award unjust. Va. Code Ann. § 2.2-3713.D.

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).

Court costs may be awarded to successful FOIA plaintiffs. Smith v. Bradley, 223 W. Va. at 293, 673 S.E.2d at 507.