American Small Business League to Recoup Legal Fees from the DOJ

Now that the Small Business Administration (SBA) has dropped its appeal of a California federal court's legal fees award, the American Small Business League will collect its attorneys' fee award from the Department of Justice.  

The case stemmed from the SBA's denial of the League's request for names of firms receiving small business contracts and the amounts awarded in 2005 and 2006.  The SBA claimed it didn't have records of the names and that the information was stored at the General Services Administration.  The Court found the SBA's argument "curious" and awarded the SBA to hand over the records and pay the League's attorneys fees in May 2008.  

Click here for details on what the League says the records reveal about the Bush administration. 

Green Bay Must Yield Redacted Legal Invoices to Newspaper

A Wisconsin judge ordered the city of Green Bay to turn over redacted legal invoices to the Green Bay Press-Gazette in response to an open records request by the paper. The newspaper had requested legal invoices paid by the city for all outside legal counsel worked in 2007 and 2008.

The city had initially provided only a summary of the work preformed by the city by outside law firms and the amounts paid to them and objected to producing the invoices saying they contained attorney-client privileged information.

Brown County Circuit Court Judge J.D. McKay ordered the city to produce the bills by October 2 with the confidential or attorney-client privileged information redacted.

For more, click here.

State pays over $81,500 to newspapers

The Wisconsin Department of Administration paid the Journal Sentinel $51,256 and the Lakeland Times of Minocqua $30,278 for wrongly withholding names of state employees in 2005, the Journal Sentinel reported. The money covers the newspapers' costs of lawsuits. The state unsuccessfully argued that it couldn't release names because of labor agreements with its union employees. The state (and thereby taxpayers) might pay more. The Supreme Cour ruling sent the case back to circuit court to detemine if the state has to pay the papers' legal bills during appeals from the unions. The records probably won't be released until then. A Dane County Circuit judge has ruled that the county will have to pay in an open records lawsuit brought by the Journal Sentinel, Wisconsin State Journal, WTMJ-TV and WISC-TV.

The state paid two newspapers more than $81,500 this week after improperly refusing to release the names of state employees.

The payments - which could climb higher because they don't include appeal costs - came as the Capital Times of Madison sued the state for delaying the release of public records related to judicial appointments.

An attorney representing the Capital Times said it seemed as if Gov. Jim Doyle's office was deliberately slow in providing the records, in hopes they would lose their news value. Meanwhile, a spokesman for Doyle suggested the Capital Times was trying to "pose as open records champions and cost the taxpayers some money over it."

More here.

Calif. bill to relieve losing FOIA plaintiffs

A California bill recently signed by Gov. Arnold Schwarzenegger will relieve losing FOIA plaintiffs from having to pay attorneys' fees, the Reporters' Committee for Freedom of the Press reported. Fees could only be awarded if the court decides that the lawsuit was frivolous and without merit. The bill was passed in an effort to "curb the chilling effect that can accompany the assignment of extensive fees to plaintiffs who unsuccessfully sue the government to enforce the California Public Records Act." The law takes effect Jan. 1.

A California bill that will relieve losing plaintiffs in Freedom of Information Act lawsuits of having to pay attorney's fees passed the state's legislature last month. It is now awaiting a signature from the governor.

Under the proposed law, governments that prevail on an "anti-SLAPP" motion in FOIA cases will not be able to collect attorney's fees for claims brought against them in good faith. Fees could only be awarded in limited situations, such as when the court decides the action is frivolous and without merit. The state anti-SLAPP law allows defendants to have frivolous suits dismissed early.

More here.
Also, New Calif. law limits cost in public records fight, San Jose Mercury News.

N.C. lobbyists argue against creating an open government unit

The North Carolina House Finance Committee heard arguments on a bill that would create an open government unit with the Department of Justice, the AP reported. The department would issue advisory opinions and provide mediation services. However, Paul Meyer with the North Carolina League of Municipalities says the unit could slow down information access because the more than 1,500 state and local government agencies would feel forced to ask the open government unit for an opinion rather than their own attorneys.

City and county lobbyists argued Wednesday that a proposal to create a new state office to handle open government disputes and a change in how legal fees are awarded could delay further the release of documents.

The "Open Government Unit" with the Department of Justice would issue advisory opinions about public records questions and attempt to work out public records and open meeting issues without going to court.

The bill, heard but not voted on by the House Finance Committee, also attempts to make it easier for news media outlets and individuals suing in public records lawsuits to collect attorney fees if the documents are released.

More here.

Calif. Senate approves cost-limiting bill

The California Senate unanimously approved a bill to prevent judges from ordering plaintiffs to pay governments' legal costs in open records and meetings lawsuits, the AP reported. Newspaper publishers supported the effort.

The cost of fighting for access to public records and meetings would be limited under a bill approved by the Senate.

Sen. Leland Yee's bill would bar judges from ordering plaintiffs to pay governments' legal costs in open records and meetings lawsuits. Yee, a Democrat from San Francisco, says high costs have "a chilling effect" on such public interest lawsuits.

For instance, the nonprofit Center for Public Forum Rights near Sacramento paid $80,000 in government attorneys' costs last year after it sued Orange Unified School District for allegedly altering video of a public meeting.

More here.

Judge urges city to settle rather than endure a costly trial

A trial could be expensive and risky for both the city of Yakima and Tim Schoenrock, Yakima County Superior Court Judge Blaine Gibson wrote in an opinion, the Yakima Herald-Republic reported. Schoenrock alleges that council members violated open meetings law by arranging votes for a budgeting policy outside a public meeting. His case rests on e-mail records. The judge could not determine ahead of time whether Schoenrock would be eligible for a reimbursement of attorneys fees should the case go to trial.

Unless the city of Yakima and a local attorney settle their dispute over an alleged violation of the state open-meetings law, they should prepare for a costly trial, a judge has ruled.

In an opinion issued Tuesday, Yakima County Superior Court Judge Blaine Gibson said he could not determine whether Tim Schoenrock deserves attorney fees for his work on the case without a closer look at whether members of the Yakima City Council violated the Open Public Meeting Act when they lined up support for a new budgeting policy last month.

A trial, Gibson wrote, would be risky and expensive for both sides. He urged the city and Schoenrock to settle the matter out of court.

More here.

School board reaches settlement in newspaper suit

The Steamboat Springs School Board in Colorado agreed to pay $50,000 of The Steamboat Pilot & Today's attorney fees after a lawsuit stemming from the board's violation of open meetings laws. The board will also have to release minutes from that executive session in which its “notice was deficient in failing to state that the executive session would concern the release of the survey results. In addition, the notice was deficient in not identifying that the ‘personnel matter’ was specifically the performance of the superintendent.”

The Steamboat Springs School Board formally accepted a lawsuit settlement offer from the Pilot & Today on Monday.

The settlement was tentatively approved by board members last month on the heels of a March ruling by the Colorado Court of Appeals that the previous School Board violated the state’s Open Meetings Law by not properly announcing the intention of its executive session at a Jan. 8, 2007, meeting. As a result of the ruling and settlement offer, the district will pay $50,000 of the newspaper’s attorney fees and release the transcripts from the illegal meeting.

The motion to accept the settlement offer was approved 4-1 on Monday, with a couple of board members expressing satisfaction that the lawsuit is now behind them. Board member John DeVincentis was the only dissenting vote, but he wasn’t the only one displeased with the outcome.

More here.

Bill to increase likelihood of attorney fees reimbursement advances

The North Carolina House committee approved legislation that would reimburse legal fees for people or organizations that were "substantially" right in claiming a government agency wrongly kept data from the public, the AP reported. Currently, judges have discretion to award attorneys fees to people who win public records cases but often don't.

A state House committee cleared legislation Thursday that would improve the odds that people illegally denied requests for public documents could get their legal fees paid by the offending government agency.

A House judiciary committee unanimously approved the proposal that would curb the discretion of judges whether to award the legal fees in most cases. Although state law allows a judge to award attorney fees to people who successfully fight public records cases, they often choose not to reimburse the winner, leaving them with legal costs that could be thousands of dollars despite proving government officials were wrong.

The measure is seen as a compromise from a similar plan that passed the state Senate last summer but died in the House, said bill sponsor Rep. Deborah Ross, D-Wake.

More here.

N.C. bill would make recovery of attorney's fees easier

A bill filed in the North Carolina House would provide for automatic recovery of attorneys' fees for people who "substantially prevail" in public record suits, the Charlotte Observer reported. The bill also would create an "Open Government Unit" under the Department of Justice that would mediate public records and open meeting disputes.

A person who has to sue to obtain public records would have an easier time recovering attorney's fees under a bill filed in the state House.

The bill, which was filed Monday, would provide for the automatic recovery of legal fees in cases that are won convincingly.

The bill also establishes a unit in the state Department of Justice to keep public records disputes out of court in the first place.

More here.

Power company sues county for records related to license renewal

The Alcoa power company, which controls four reservoirs, sued Stanly County for allegedly not responding to records requests and improperly redacting nonprivileged information, the Charlotte Observer reported. The power company wants the judge to decide if the records are exempt from the law, to order the disclosure of the records and to force the county to reimburse Alcoa for its attorney fees. Alcoa is attempting to renew a 50-year federal hydroelectric license.

The Alcoa power company sued Stanly County on Friday, saying government officials have dragged their feet in responding to public-records requests.

Alcoa Power Generating Inc., which controls four reservoirs along the Yadkin River, is hoping to renew a 50-year federal hydroelectric license.

The county has spent nearly a million dollars fighting the renewal. It says the company has not cleaned up 90 years' worth of pollution, a charge Alcoa denies.

More here.

May soon be easier to recover legal fees in Ark. FOI cases

The Arkansas House will soon vote on a bill that "would require attorneys' fees to be paid by a defendant if a plaintiff 'substantially' prevails in an FOI lawsuit," the AP reported. Winning plaintiffs would have to file a claim with the Arkansas State Claims Commission to recover these legal fees.

Legislation that would make it easier for plaintiffs who win Freedom of Information Act challenges to recover attorneys fees from government officials is headed to the House for a vote.

The House Judiciary Committee on Tuesday advanced a proposal that, in most cases, would require attorneys' fees to be paid by a defendant if a plaintiff "substantially" prevails in an FOI lawsuit. The measure by Rep. Lindsley Smith, D-Fayetteville, would not allow courts to force state agencies to pay attorneys' fees in FOI cases.

More here.

How To Make A $155 Video...

Ah, the games we play...

She knew copies of public records weren't handed out free of charge, but Overland resident Courtney Cerulo didn't expect the fee that would be attached to a videodisc of a City Council session.

Cerulo would have to pay $155 for the recording, which she wanted in hopes of bolstering her complaint that Ward 1 Councilwoman Eedie Cuminale is serving on the council even though she lacks an occupancy permit.

"I was shocked," Cerulo said.City Administrator Jason McConachie said the fee reflects the cost of producing a copy of the video, which Charter Communications provides the city.

"Charter makes the tape and provides a copy of the tape to the city," he said. "At that point, it becomes a public record."

He said the city is allowed by state law to recoup its costs of providing public records. He confirmed the price quotes to Cerulo, explaining there is a $35-an-hour charge (at a minimum of three hours) for duplicating a copy of a council broadcast and a cost of $25 (each way, for a total of $50) to pay a courier to take the tape from City Hall to a contractor to duplicate it and the return trip back to City Hall.

More here.

Stiff Price Tag for E-Mails: $1700

A Vermont request comes with a steep price tag:

The Douglas administration is demanding $1,700 from the Vermont State Employees' Association if the union wants to look at public records related to the 400 state job cuts Gov. Jim Douglas has ordered.

"The time (and associated cost) are high because the request will require review of many thousands of e-mail messages to or from the named individuals" -- named in the union's request for access to the documents, wrote Harold Scwartz, administrative services director at the Department of Human Resources.

The union, which had sought e-mails and other internal documents related to the cuts dating back to last fall, called the charge exorbitant.

"The fact is, the public has a vested interest in knowing what government services and operations are impacted by the governor's position reduction’ initiativebut the public should not be required to pay to examine internal correspondence about those effects," VSEA Interim Director Michael Casey said in an e-mail.

Administration officials referred questions to Linda McIntire, deputy secretary of administration, whose agency includes the Department of Human Resources. She said the department and agency want to be responsive to the union's request, but found the costs in staff time to reply to the VSEA request would be high.

She pointed to a provision in Vermont law that allows a government agency targeted by a public records request to charge for the time it takes to respond to the request.

More here.

N.C. Reforms Move On...

A Senate committee on Tuesday gave its approval to a bill that open government supporters say would put some teeth in the state's public records law.

The bill, introduced by Sen. David Hoyle, D-Gaston, would require governmental bodies to pay the legal fees of parties that win public records lawsuits against the government.

"Very few people can afford to litigate these days," said Sen. Tony Rand, D-Cumberland, in support of the bill.

The bill would also create a new open government unit within the Department of Justice that would be responsible for the education and mediation of public records and open meetings law issues.

The committee approved the bill after it defeated an amendment by Sen. Dan Clodfelter, D-Mecklenburg, that would have stripped the legal fee requirement from the bill. Clodfelter argued that judges are already allowed to assess fees under a law negotiated three years ago.

"What I don't like about the bill is that it's going to be thrown out the window now," Clodfelter said about the three-year-old law.

More here.

Judge Smacks Down Higher Records Fees in MO

A Cole County judge on Friday voided a fee increase for Missouri driver and motor vehicle records.

Several companies that routinely purchase the records sued the Department of Revenue earlier this month, alleging that the new fee structure violated open-records law and raised constitutional concerns.

On May 1, per-record fees rose to $7, from $1.25. The department also eliminated bulk discounts, which had allowed purchase of database files containing tens of thousands of records for fractions of a penny per record.

The lawsuit contends that the Department of Revenue violated the Sunshine Law by raising fees above the actual cost of providing the record. According to the law, fees must cover only the cost of copies and the staff time needed to provide the copy, not the creation or maintenance of the record.

Department of Revenue officials have said the fee increase is intended to finance the purchase of a new, multimillion-dollar database system. They argue, however, that driver and motor-vehicle records are not open records and thus not covered by the Sunshine Law.

Judge Richard Callahan slapped down the department’s defense in open court on Thursday, telling lawyers that he interpreted the phrase “public records” to include all government records, whether they were open to the public or not.

More here.

NC Bill Would Shift Fees...

Government agencies would be required to pay citizens' lawyer bills when they illegally deny access to public records, under a legislative proposal the sponsor says was spurred by several recent newspaper lawsuits.

The bill, introduced by Sen. David Hoyle, D-Gaston, would ensure citizens and groups receive money to cover their legal costs when they sue for access to public records under the state's open records law.

Hoyle, a longtime proponent of open government laws, said the measure would make government agencies think twice about denying access to public records.

"I think this may cause them to pause and say, 'Wait, why did I want this, and if I happen to lose in this situation, it could cost me some money,'" Hoyle said. "I think you'll see less litigation."

Many government organizations have opposed similar proposals in the past, citing fears that they will be hit with big legal bills for unintentionally blocking access to public records.

Current state law leaves legal fee awards up to a judge's discretion. That means courts can decide to award no money or part of the victors' legal tabs if it decides the agency had "substantial justification in denying access" or there were circumstances which would make awards "unjust."

The bill would make payment of "reasonable" legal fees, as determined by a judge, mandatory, Hoyle said.

More here.

Somewhere in Iowa, a Government Official Wants to Charge You...

for reviewing records requests.

Not fulfilling them, mind you, but merely for processing them.

My pal Al Cross over at The Rural Blog has the scoop:

The latest proponent of this bad idea is Democratic Gov. Chet Culver of Iowa, whose office started charging such fees after The Des Moines Register made "two unusually large and unconnected requests for public e-mails" in March, Lee Rood of the Register reported last week. "The requests also came after the governor’s office had mulled for more than a year about rare requests for large numbers of public information that take a lot of agencies’ time to compile," Rood writes, quoting Culver General Counsel James Larew as saying that charging fees to retrieve public documents is supported by case law and has prompted requesters to scale back their requests, and the new fees were intended to “discipline” requesters, not restrain them. "The charges can be levied when a request for records is estimated to take more than three hour of lawyers’ time, Larew said."

This stinker of an idea is worth watching. As Al said, bad ideas like this have a way of germinating...

I'd Want To Exempt That Bill, Too....

Monterey County paid at least $435,000 for attorneys it hired to help with federal voting-rights lawsuits over two controversial land-use ballot measures that eventually went before voters in June.

Spending for the attorneys was gleaned from some 200 pages of documents released by county officials to a government watchdog group in the past week. Open Monterey Project officials were seeking the billing documents since spring 2007 under the state Public Records Act.

"The issue is transparency and accountability," said Michael Stamp, attorney for the group. Stamp provided the spending estimate after reviewing billing documents, and said it would likely reach $445,000.

The group filed suit in May 2007 to obtain the outside-attorney billing records. But the county released documents with payment amounts blacked out.

County officials contended that premature public release of the records could cost the county more money by revealing its legal tactics and financial commitment in the cases. The county took the position that the billing records were exempt from public disclosure because they were part of pending litigation.

More here.