Against the odds

One for the record books? A large court award in a public records or open meeting case is a rare event worth noting.

From the Summer 2007 issue of The News Media & The Law, page 28.

The Northern Lights visible in the southern United States, the birth of an albino alligator, a large monetary award in an open government lawsuit. All are extremely rare occurrences that require a special confluence of events in order to materialize.

Well, maybe a large award either in attorney fees, fines or both in a public records or open meetings case isn’t quite as rare as the others, but it is extremely unusual. Advocates can toil for years and years on these lawsuits without ever recovering a dime. But every once in a while, a legal decision or verdict jumps out at the press, government and open-government advocates alike and causes jaws to drop. This year’s mid-season favorite comes from Washington state.

In a final settlement filed in a county court in June, the state Department of Corrections agreed to pay $541,000 in fines, court costs and legal fees for withholding and improperly redacting original records. Almost $50,000 of that settlement comes with an admission of responsibility for the destruction of public documents, according to published reports.

The initial public records requests were filed back in 2000 by Paul Wright, the editor of a publication called Prison Legal News.

Wright, who was residing in a Washington state penitentiary due to a murder conviction at the time of his requests, had asked for records concerning medical misconduct investigations in Washington prisons. The state denied Wright’s requests, and he filed suit in 2001. After weaving its way up and down the state courts, the case was finally settled last month, more than seven years after the records were first requested.

In that seven-plus-year period, counsel for Prison Legal News, Davis Wright Tremaine and lead attorney Michele Earl-Hubbard, had put in hundreds of hours of work on the case and amassed $341,000 in fees. Add to that a total daily fine of between $5 and $100 a day for nondisclosure, plus the penalty for destruction of documents and voila, half a million bucks.

The typical public records case costs between $5,000-$40,000 for the public records requester to pursue. Recouping costs or fees, let alone fines, rarely occurs because awards are most often left to a judge’s discretion, and unfortunately most judges use their discretion to not award any money back to the plaintiff. While at least 20 states have some component of mandatory attorney fees in their public records’ laws, only Florida makes an award of attorney fees to the prevailing plaintiff an automatic function of the law.

Florida has been the site of several significant public records and open meetings money awards, according to a list of attorney fee decisions and prosecutions maintained by the University of Florida’s Brechner Center for Freedom of Information. The single largest amount of legal fees and court costs recorded by the center in a Florida public records or open meetings dispute came in 2002. The Miami Herald had asked for records of a contractor involved in a multibillion-dollar expansion of Miami International Airport. Five years after the first request was filed, a court awarded $331,000 in attorney fees to the newspaper for the contractor’s failure to release the records.

The city of Akron, Ohio, paid what is commonly believed to be the largest amount ever for a public records act violation. In 2001, a jury penalized the city $1,000 per document as required by state law for destroying 860 pages of employee timesheets. The total award tallied $860,000 in fines for the city’s actions, and then the jury doubled the amount, also finding the city liable for destruction of evidence. In 2002, a federal district court judge cut the jury’s original verdict of $1.72 million dollars in half as improper double damages, and last year the federal appeals court in Cincinnati (6th Cir.) affirmed the $860,000 fine.

A spokesman for the city’s legal department said in the end, the city paid out a total of $983,000, including the judgment, attorney fees, costs and interest.

The fortuitous conflux of elements in all three of these cases is worth noting:

The plaintiffs have been willing to stand behind their initial requests long enough to have the case emerge from the often painfully long appeals process.

Each agency in these cases has acted with gnawing hubris such that they are unwilling to compromise until the last possible moment, if at all.

And most importantly, each state has a strong component to its public records law with teeth that rewards a determined requester and reminds the government that it is merely a custodian of the people’s property.

Loren Cochran is director of the Freedom of Information Service Center at the Reporters Committee.