Access Tip: Getting Attorney Fees in a Lawsuit

So what do you do when a public official violates the Indiana Access to Public Records Act by denying you records that should be released? ICOG Board member and attorney Dan Byron and attorney Jonna L. McGinley offer one strategy.

 

 

So what do you do when a public official violates the Indiana Access to Public Records Act by denying you records that should be released? If you decide to pursue the records in a lawsuit, you may be able to recover your attorney’s fees.

 

Under Indiana Code 5-14-3-9, an agency’s failure to provide public information until after suit is brought against them is a direct violation of the Act and entitles a requester to the recovery of attorney’s fees. Furthermore, a defendant’s delayed but eventual compliance with the Act does not relieve their liability for fees the requester incurs to obtain compliance.Here’s how it works.

First, you must properly request access to public records under the Act.

If your request is denied, it is good practice before filing a lawsuit to seek an informal opinion from the Indiana Public Access Counselor (file your request for free at www.in.gov/pac/) indicating that you are entitled to disclosure of the records sought. You can then advise the agency of the response.  You might also consider directing the agency’s attention to a 2002 Indiana Court of Appeals case – Gary/Chicago Airport Board of Authority v. Maclin, 772 N.E.2d 463 – in which the plaintiff was awarded attorney’s fees after following these steps.

If the agency continues its refusal to release the records, you can proceed with a lawsuit. If you win, the Act requires the judge to award reasonable attorney’s fees, court costs, and cost of litigation. And you don’t have to go to a full trial to be considered the winner. In an Indiana Court of Appeals Case from 2000, D.S.I. v. Natare Corp. (742 N.E.2d 15, 23), the court essentially held that once a plaintiff receives the records sought in the litigation, attorney’s fees are available. So even if the agency settles with you before trial by releasing the records, you can obtain payment for the costs of your attorney.

 

Contributors: Daniel P. Byron and Jonna L. McGinley, Bingham McHale