Reaching a balance on attorney-fee awards
In North Carolina, as in many states, attorney-fee awards to requesters who are forced to file a lawsuit to obtain records are discretionary. New legislation, however, would make the award of attorney fees mandatory, except when the agency relies on legal advice to justify its decision to withhold the records. The same legislation would require mandatory mediation prior to a lawsuit.
Washington's Public Records Act already mandates a penalty that includes attorney fees and a daily award. RCW 42.56.550(4). But there is no exception for reliance on legal advice -- or reliance on a prior court order. As a result, governments are required to pay penalties from their public funds even when those governments act in good faith reliance on legal advice or on a court order.
For example, in West v. Thurston County, 144 Wn. App. 573, 183 P.3d 346 (2008), the County relied on a prior court order in another case providing that the same attorney-fee bills were work product when it told a requester those bills were exempt as work product pursuant to RCW 42.56.290. After the lawsuit was filed, however, the Legislature amended the Public Records Act to clarify that attorney-fee bills were in fact subject to disclosure. RCW 42.56.904. As a result, the Court of Appeals ruled that the County had erred in withholding those records, and remanded for penalties – penalties that will be paid by the taxpayers of Thurston County.
