Attorney's fee awards easier to obtain under ruling

WEST VIRGINIA–Records requesters in West Virginia no longer need to prove bad faith on the government’s part to recover attorney’s fees, the state Supreme Court of Appeals in Charleston ruled in mid- May. The court unanimously ruled that requesters need only successfully bring a suit under the state Freedom of Information Act to receive a mandatory award.

In defining what constitutes a successful suit, the high court held that requesters do not need to prevail on every argument raised during the FOI suit or receive full and complete disclosure of every record sought. Attorney’s fees will be granted if, either voluntarily or through a court order, the government discloses the records it originally denied to the requester.

The Supreme Court called the fee-shifting provisions of the state law “a marked departure” from the common law, which did not provide for attorney’s fees. The court noted that the new standard for recovery was consistent with the law’s intent to encourage the government to cooperate with records requests and ease the burden associated with the public’s pursuit of records. To recover, plaintiffs must request records they are entitled to receive and be denied access. Plaintiffs must then successfully pursue a claim under the state open records act.

Prior to the high court’s decision, requesters could recover attorney’s fees only if they could show bad faith or “wanton or oppressive conduct” by the records custodian.

The case arose when the Daily Gazette Company, which publishes the Charleston Gazette, requested records from the West Virginia Development Office about a proposed paper and pulp mill. The development office denied the request and in the following litigation, the publisher received 137 of the 155 documents it sought. The publisher’s attorneys were awarded $92,000 in fees.

The development office appealed the award, arguing unsuccessfully that the fee should be proportionately reduced to reflect the publisher’s failure to succeed in every argument it advanced. A partial lack of success does not bar a grant of attorney’s fees where the action, taken as a whole, is successful, the high court noted. (Daily Gazette, Co. v. West Virginia Development Office)