A tiger with no teeth: the case for fee shifting in state public records law.

• Author: Hooper, Heath
• Position: The Art, Craft, and Future of Legal Journalism: A Tribute to Anthony Lewis

1. INTRODUCTION

   A federal lawsuit filed against the city of Columbia, Missouri, alleging police brutality seemed destined for headlines in 2010. (1) At its core was an incident in which a routine traffic stop for a broken taillight erupted into a "fracas" in which police allegedly both tased and beat a man and threw a woman to the ground. (2) A Columbia Daily Tribune reporter following the case filed a public records request for any documents concerning the incident. (3) A police spokesperson contacted him days later to let him know the records were ready for pickup. (4)

   But when the reporter came for the records, he was in for quite a surprise: The Columbia Police Officers Association, aware of the public records request, had filed a temporary restraining order preventing the release of the records. (5)

   At first glance, the law on the matter seemed fairly clear, but, as the paper would soon find out, appearances can be deceiving. Though the applicable law was easily identified--the city had adopted an open record ordinance a few months earlier--the language in the ordinance and a 2001 Missouri Supreme Court decision made the law's application to these particular circumstances uncertain. (6) The applicable ordinance, Ordinance Section 21-54, provides that "all records pertaining to complaints filed against police officers alleging misconduct of the police officer shall be open records," with exceptions for those closed by federal or state law and those that disclose the identity of an undercover officer. (7)

   A similar issue was before the Supreme Court of Missouri in 2001. In Guyer v. City of Kirkwood, the court held that reports concerning an internal investigation into a complaint alleging criminal misconduct by a police officer are investigative reports, and therefore are public records that cannot be closed on the grounds that they are personnel records. (8) Columbia Ordinance Section 21-54 differs from the Supreme Court of Missouri's precedent in that it does not use the word "criminal." (9) Ultimately, there appeared to be an argument for keeping the documents secret, at least according to the Columbia Police Officers Association. (10)

   The Daily Tribune, along with its counsel, Missouri Press Association ("MPA") attorney Jean Maneke, had limited options available to them. They could head in as an intermediary. Or, they could let the city and police officers decide just how the ordinance applied to state Freedom of Information ("FOI") law.

   Although the Daily Tribune, like other papers across the nation, was managing its way through tough economic times, it didn't relish the prospect of a lengthy--and costly--trip through the courts in pursuit of the files. As Tribune Managing Editor Jim Robertson explained: "Unfortunately, we always have to weigh the potential cost in dollars against principal and the potential harm an adverse ruling could create on a larger scale. These days, we have to choose our battles very carefully." (11)

   So the Daily Tribune turned to the National Freedom of Information Coalition ("NFOIC") and its Knight FOI Fund, which provided a grant to cover the upfront costs of the FOI litigation. (12) That the NFOIC's Litigation Committee could pay up to $10,000 for legal fees soothed some fears as the paper made the decision to pursue the records. (13) The grant also encouraged the participation of the MPA, which took the case pro bono. (14)

   It took about forty-five minutes for a Boone County judge to determine that the law mandated that the documents be released. (15) T.J. Greaney, the Daily Tribune reporter, now had access to the requested documents and videos, which told the story of the "fracas" through the statements of dozens of witnesses. (16)

   The cost? More than $12,000--quite a chunk of change for a local daily. (17) Fortunately, the paper had the NFOIC's support. The paper only had to pay out a far more affordable $2,065.61. (18) But for the outside promise of fee payment, a vitally important case culminating in public access to the press may have never seen the light of day, simply due to a lack of funds to initiate litigation.

   The Columbia case underscores one of the systemic weaknesses of state FOI laws: most provide little or no incentive for plaintiffs to seek legal redress for even the most blatant violations of the law. This Article seeks to examine the current state of the public records ecosystem and suggests a potential path through fee shifting to balance out the problematic incentives inherent in many state laws. Part II examines the development of fee-shifting laws in the United States, while Parts III and IV examine the rise, fall, and rise again of a particularly interesting form of fee shifting. Part V looks at the current state of those like Greaney and his compatriots, who man the front lines of the open records battlefield. Finally, the authors suggest a potential path, one already taken by federal lawmakers and some state lawmakers, that could benefit all involved in the open records field.

2. FEE SHIFTING IN THE UNITED STATES

   Civil rights enforcement in the United States has long depended on fee-shifting legislation. (19) This kind of legislation statutorily allows plaintiffs to collect attorney's fees when they prevail in a court case, fostering greater use of the statutes to guarantee the rights enshrined in the law. (20) Such an arrangement is not the norm in the United States: under the "American Rule" each party pays for its respective attorneys' fees regardless of who wins. (21) The problem with this arrangement is that if someone does not have the money to pay for an attorney, that person is less likely to engage in litigation to protect constitutional or statutory rights, even when those rights are plainly violated. The resultant lack of citizen-driven litigation in state public records and open meetings laws remains a noteworthy weakness in laws that are designed to protect citizen access to governmental proceedings and records.

   Not all countries follow the American Rule. (22) Across the pond in England, for instance, courts have discretion to award such fees, and often do so. (23) Only one U.S. state, Alaska, (24) has retained the British notion of two way, "loser pays" fee shifting. (25) Most states and the federal government follow the so-called "private attorney general exception," which only sometimes allows for one-way fee shifting. (26) The term "private attorney general" first made its appearance on the legal scene in Associated Industries of New York v. Ickes. (27) The exception, which was based on the notion that private lawyers should help enforce public laws, did not originate in that decision, however. (28) Long before Associated Industries, Congress passed legislation that allowed federal courts to award attorney's fees, but that practice had by and large ended by the beginning of the nineteenth century. (29)

   Six rationales have been put forward to justify the continued need for fee shifting:

   (1) that the losing litigant should pay the winner's costs in the interest of fairness; (2) that the litigant should be made financially whole for the legal wrong suffered; (3) that fee-shifting may have deterrent and punitive value; (4) that suits by private attorneys general should be encouraged because of their public usefulness; (5) that the relative strengths of the parties should be equalized; and (6) that a fee-shifting scheme may have desired incentive effects. (30)

   While the United States has not completely given up on the concept as part of the common law, (31) the U.S. Supreme Court has decided that, at least for federal courts, any decisions about such awards belong to the legislative branch. (32)

   Modern fee-shifting statutes were initially intended to promote the private enforcement of federal civil rights statutes. (33) Generally speaking, such statutory exceptions still seek to "encourage actions that benefit public policy --either private enforcement actions, as in the area of civil rights litigation and environmental legislation, or social policies such as consumer protection and equal access to justice." (34) Fee-shifting statutes are generally implemented "to encourage, typically, public interest cases that a plaintiff would not otherwise file unless he knew his attorney's fees would be paid when he won." (35) Of course, such provisions can also be punitive in nature. (36)

   Fee-shifting legislation effectively empowers private plaintiffs to enforce their rights in court without having to concern themselves with litigation expenses because attorneys, seeing an opportunity for payment via the fee-shifting statutes, are much more likely to take on legitimate cases in expectation of winning. (37) Many states allow fee shifting in public records cases. (38) Not all public records laws, however, offer the same protections. (39) Legally, dubious deniers of public records under state law are often allowed to simply hand over the documents after a lawsuit is filed, suffering little to no penalty unless a judicial decision goes against them. (40) Nonetheless, the challenging party still has to pay the start-up costs for the lawsuit, and such costs can be prohibitive.

   Perversely, such a situation disincentives challenging open record request denials while at the same time incentivizing officials to issue denials. There is hope, however. In regimes that recognize the so-called "catalyst theory," a challenger can often recoup the costs of litigation so long as the denier changes her position due to the lawsuit, regardless of whether there has been some kind of judicial declaration. (41) Although such legislation exists on a federal level, state coverage is not as secure. (42) Yet, as shall be seen, such guarantees are sorely needed in an age of ever-shrinking budgets. Citizens seeking redress for legally dubious denials of access to public records would likely find it much easier to initiate litigation, especially in clear-cut...