FOIA lawsuits attorney fees

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Federal Reimbursement

In 1974 Congress amended' the Freedom of Information Act (FOIA) to enhance the ability of citizens to avail themselves of the benefits and protections of the Act. Among other objectives, Congress intended the amendments to "facilitate freer and more expeditious public access to government information" and "to encourage more faithful compliance with the terms and objectives of the FOIA. As a means of ensuring that agencies do not withhold information unjustifiably, one provision permits courts to "assess reasonable attorney fees and other litigation costs reasonably incurred"' by parties who seek information and then prevail in litigation challenging an agency's failure to disclose. Courts have struggled to interpret this provision. The cases agree on the plaintiffs that qualify as prevailing parties and the authority is clear on the general standards for determining the prevailing parties that should receive fee awards. Confusion reigns, however, when courts analyze the appropriateness of awarding attorney fees to pro se plaintiffs. Courts also disagree when the pro se plaintiff is an attorney. For several years the United States Court of Appeals for the District of Columbia Circuit has awarded attorney fees to attorney and non-attorney pro se litigants." A recent decision by the United States Court of Appeals for the 5th Circuit, Cazalas v. United States Department of Justice, denied attorney fees to non-attorney pro se litigants but approved recovery by attorneys who represent themselves. One month later, the United States Court of Appeals for the 6th Circuit, in Falconev. IRS,'1 reaffirmed its prohibition against attorney fee awards to non-attorney pro se plaintiffs and extended this rule to pro se attorneys. The original bill introduced in the Senate to amend the FOIA and authorize courts to assess attorney fees listed four factors courts should consider in determining the appropriateness of a fee award: (1) the benefit to the public deriving from the plaintiff's claim; (2) the commercial benefit to the complainant; (3) the nature of the complainant's interest in the federal records sought; and (4) whether the agency had a reasonable basis in law for withholding the records sought.

Congress did not incorporate these criteria in the final version of the FOIA amendment, but the criteria indicate that Congress intended to relieve persons who are motivated by factors other than pure self-interest. Congress assumed that plaintiffs seeking information for commercial or pecuniary reasons would have sufficient motivation to proceed without the benefit of a fee award.'" The United States Court of Appeals for the 5th Circuit has adopted these criteria. 'Congress amended the FOIA to vindicate the important congressional policy' underlying the original FOIA: allowing citizens easier access to government information. Analyzing Cazalas and Falcone against the background of the FOIA's legislative history and the development of attorney fees awards under both the FOIA and other statutes reveals that a per se rule against attorney fees under the FOIA for all pro se litigants frustrates this congressional policy.

American law generally does not allow recovery of attorney fees from opposing parties unless a contract or statute authorizes the award. Courts have developed three exceptions to the rule.

State Reimbursement

State	Specific Reimbursement Rule	Reimbursement Option	Mandatory/Discretionary	Explanation
Alabama	No	Yes	Discretionary	Public Records Laws cases governed by the rules of Alabama Civil Procedure (54(d)), that states: "Except when express provision therefor is made in a statute, costs shall be allowed as of course to the prevailing party unless the court otherwise directs."
Alaska	No	Yes	Mandatory	Alaska is perhaps the only state with a general "loser pays" rule for attorney fees in most civil litigation. Rule 82(b) (2) governs most cases involving access to public records, applicable to cases in which the prevailing party recovers no money judgment. This rule provides that the court shall award the prevailing party in a case that goes to trial 30 percent of the prevailing party's reasonable actual attorney's fees, and shall award the prevailing party in a case resolved without trial 20 percent of its actual attorney's fees.
Arizona	Yes	Yes	Discretionary	The court may award attorney fees and other legal costs that are reasonably incurred in any action under this article if the person seeking public records has substantially prevailed. A.R.S. § 39-121.02(B). Attorneys’ fees and costs can now be assessed against any non-prevailing party.
Arkansas	Yes	Yes	Discretionary	Under a 1987 amendment, attorneys’ fees and other “litigation expenses” are now available to a party who has “substantially prevailed” in an FOIA case. A fee award is discretionary, not mandatory. Ark. Code Ann. § 25-19-107(d).
California	Yes	Yes	Mandatory	Section 6259(d) provides that the court "shall award costs and reasonable attorney fees" to the plaintiff should the plaintiff prevail in proceedings to compel disclosure of public records pursuant to CPRA. Cal. Gov't Code § 6259(d).
Colorado	Yes	Yes	Mandatory	Attorneys' fees shall be awarded to a person who has been denied access to public records and who subsequently prevails after applying to a court to have such records made open. Where a government agency seeks guidance from the courts as to whether a record is open or closed, after reasonable and good faith investigation and being unable to determine if disclosure is prohibited, no attorneys' fees shall be awarded. Colo. Rev. Stat. § 24-72-204(5).
Connecticut	Unavailable	Unavailable	Unavailable	Unavailable
Delaware	Yes	Yes	Discretionary	A court may award attorneys' fees to the successful plaintiff in an action brought under the Act. A court may award attorneys' fees and costs to a successful defendant, but only if it finds that the action was frivolous or was brought solely for the purpose of harassment. 29 Del. C. § 10005(d).
District of Columbia	Yes	Yes	Discretionary	A requester who prevails in a court action may be awarded reasonable attorneys' fees and costs. D.C. Code Ann. § 2-537(c). A requester proceeding pro se is not entitled to attorney fees.
Florida	Yes	Yes	Mandatory	Reasonable costs and attorney fees “shall” be recovered from an agency where an action is filed against the agency to enforce provisions of Chapter 119, and the court determines that the agency unlawfully refused permission to inspect, examine or copy a public record at both trial and appellate levels. Fla. Stat. § 119.12(1) and (2) (1995).
Georgia	Yes	Yes	Mandatory	The Act provides that if the violation or the action to enforce compliance was "without substantial justification either in not complying with this chapter or in instituting the litigation, the court shall, unless it finds special circumstances exist, assess in favor of the complaining party reasonable attorney fees and other litigation costs reasonably incurred." O.C.G.A. § 50-18-73(b).
Hawaii	Yes	Yes	Mandatory	If the complainant prevails in an action involving denial of access or failure to properly maintain or correct a personal record, the court shall assess against the agency reasonable attorneys' fees and all other expenses reasonably incurred in the litigation. Haw. Rev. Stat. §§ 92F-15(d) (judicial enforcement), 92F-27(c)(2) and (d) (remedies for disclosure of personal records)
Idaho	Yes	Yes	Mandatory, if frivolous	The court shall award reasonable costs and attorney fees to the prevailing party if it finds the request or refusal to provide records was frivolously pursued. Idaho Code § 9-344(2)
Illinois	Yes	Yes	Mandatory	Pursuant to the FOIA’s 2010 amendment, attorneys’ fees shall be awarded to any requester who “prevails.” See 5 ILCS 140/11(i). The burden of proving that an award of attorneys’ fees is warranted rests upon the party seeking the fees. Requesters who bring suit without the aid of a lawyer are not entitled to attorneys fees.
Indiana	Yes	Yes	Mandatory	The court shall award attorney fees to the prevailing plaintiff, provided the plaintiff sought and received an informal inquiry response or advisory opinion from the Public Access Counselor before filing suit, unless plaintiff can show the action was necessary because the denial of access would prevent the plaintiff from presenting that public record to a public agency preparing to act on a matter of relevance to the public record. Ind. Code § 5-14-3-9(i). An award of attorney fees to a prevailing defendant is discretionary if the court finds the action was frivolous or vexatious.
Iowa	Yes	Yes	Mandatory	Costs and fees shall be assessed.
Kansas	Yes	Yes	Discretionary	Attorney fees are allowable to either party, if the denial or the request was not in good faith and without reasonable basis in fact or law, whereupon, fees are mandatory. K.S.A. 45-222(c) and (d).
Kentucky	Yes	Yes	Discretionary	Any person who prevails against any agency in any action in the courts regarding a violation of Ky. Rev. Stat. 61.870 to 61.884 may, upon a finding that the records were willfully withheld in violation of Ky. Rev. Stat. 61.870 to 61.884, be awarded costs, including reasonable attorney fees, incurred in connection with the legal action. If such person prevails in part, the court may in its discretion award him costs or an appropriate portion thereof. Ky. Rev. Stat. 61.882(5).
Louisiana	Yes	Yes	Discretionary	If a person seeking the right to inspect or to receive a copy of a public record prevails in such suit, he shall be awarded reasonable attorneys' fees and other costs of litigation. If such person prevails in part, the court may in its discretion award him reasonable attorneys' fees or an appropriate portion thereof. La. Rev. Stat. Ann. § 44:35(D).
Maine	Yes	Yes	Discretionary	Reasonable attorney’s fees may be recovered by the substantially prevailing plaintiff if the court determines that the refusal or illegal action was committed in bad faith. 1 M.R.S.A. § 409(4).
Maryland	Yes	Yes	Discretionary	If the court determines that the complainant has substantially prevailed, the court may assess reasonable counsel fees and other litigation costs reasonably incurred against a defendant governmental unit. § 10-623(f)
Massachusetts	Yes	Partial	Discretionary, unless frivolous	Court costs are available but are normally nominal. The statute does not provide for awards of attorneys' fees and they are also not available under a private attorney general theory. However, if record custodian's defenses are insubstantial or frivolous, court has authority to award attorneys' fees.
Michigan	Yes	Yes	Both	"Reasonable attorney’s fees, costs, and disbursements" will be awarded to any person who prevails in an action to compel disclosure under Mich. Comp. Laws Ann. § 15.240. If the complainant prevails in part, the court may use its discretion to award reasonable fees, costs, and disbursements, "or an appropriate portion thereof." Mich. Comp. Laws Ann. § 15.240(6).
Minnesota	Yes	Yes	Discretionary	Parties seeking access to data may recover costs and attorneys' fees. § 13.08, subd. 4. Persons about whom data were wrongfully revealed may also recover costs and attorneys' fees. § 13.08, subd. 1.
Mississippi	Yes	Yes, including a fine	Discretionary	A person who "shall willfully and knowingly deny to any person access to any public record which is not exempt" shall be liable for a penalty up to $100 plus "all reasonable expenses incurred by such person bringing the lawsuit." § 25-61-15.
Missouri	Yes	Yes	Discretionary	A court may order a public governmental body or its members to pay all costs and reasonable attorney fees to any party successfully establishing a purposeful or knowing violation of the Sunshine Law. Mo.Rev.Stat. § 610.027.3-.4.
Montana	Yes	Yes	Discretionary	A requester is also entitled to recover attorney’s fees pursuant to § 2-3-221, Mont. Code Ann.
Nebraska	Yes	Yes	Discretionary	In any case in which the complainant seeking access has substantially prevailed, the court may assess against the public body which had denied access to their records, reasonable attorney fees and other litigation costs reasonably incurred by the complainant. Neb. Rev. Stat. § 84-712.07.
Nevada	Yes	Yes	Mandatory	If the requester prevails, he is entitled to recover his costs and reasonable attorney fees in the proceeding from the agency whose officer has custody of the book or record. N.R.S. 239.011.
New Hampshire	Yes	Yes	Mandatory, only for knowing violation	The Statute provides for fees where “the public body, public agency, or person knew or should have known that the conduct engaged in was a violation of this chapter.” RSA 91-A:8,I.
New Jersey	Yes	Yes	Mandatory	N.J.S.A. 47:1A-6 provides that a requester who prevails in any proceeding shall be enabled to reasonable attorney fees.
New Mexico	Yes	Yes	Mandatory	The Court "shall" order damages, costs and reasonable attorneys' fees to any person whose written request has been denied and is successful in a court action to enforce the act, §14-2-12(D), NMSA 1978.
New York	Yes	Yes	Discretionary	The statute authorizes a court to award reasonable attorneys' fees and other litigation costs reasonably incurred in any case in which the requester has substantially prevailed, provided that the court finds: (1) "the record involved was, in fact, of clearly significant interest to the general public;" and (2) "the agency lacked a reasonable basis in law for withholding the record." N.Y. Pub. Off. Law § 89(4)(c).
North Carolina	Yes	Yes	Mandatory	The court “shall” award fees unless the noncompliant public agency was following a judgment or order of a court, a published appellate opinion, or a written opinion from the Attorney General. G.S. § 132-9(c).
North Dakota	Yes	Yes	Discretionary	The court may award costs, disbursements, and reasonable attorney’s fees against the entity. N.D.C.C. § 44-04-21.2(1).
Ohio	Yes	Yes	Discretionary	The court has the discretion to award attorneys' fees where the person bringing suit obtains a writ of mandamus. Ohio Rev. Code § 149.43(C). A court will award attorneys' fees where the party bringing suit showed a public benefit and where the public office's reasons for failing to comply with the request for records are invalid.
Oklahoma	Yes	Yes	Discretionary	Attorney fees are available to a party successfully gaining access to records held by public officials.
Oregon	Yes	Yes	Both	In a case where the requester prevails entirely and obtains disclosure, the requester is entitled to reasonable attorneys' fees and litigation costs and disbursements at trial. If the requester prevails in part, the Court may, in its discretion, award costs, disbursements and reasonable attorneys' fees or a portion thereof. If the requester does not prevail in the litigation, the requester is not liable for the public body's attorneys' fees. If a state agency does not comply with an Attorney General's order requiring disclosure and fails to provide timely notice or to institute proceedings within seven days after the order, the requester is entitled to attorneys' fees regardless of the outcome of subsequent litigation. ORS 192.490(3).
Pennsylvania	Yes	Yes	Discretionary	The Act provides for the possibility that attorneys fees and costs may be awarded to the prevailing party. If a court reverses the final determination of the appeals officer or grants access to a record after a request for access was deemed denied, the court may award reasonable attorneys fees and costs of litigation or an appropriate portion thereof to a requester if the court finds either of the following: (1) the agency receiving the original request willfully or with wanton disregard deprived the requester of access to a public record subject to access under the provisions of this act; or (2) the exemptions, exclusions or defenses asserted by the agency in its final determination were not based on a reasonable interpretation of the law. Section 1304(a)(1)(2).
Rhode Island	Yes	Yes	Mandatory	The court shall award reasonable attorney fees and costs to the prevailing plaintiff. R.I. Gen. Laws § 38-2-9. If the defendant prevails, the court has discretion to award attorneys fees and costs to the defendant in certain circumstances. R.I. Gen. Laws § 38-2-9.
South Carolina	Yes	Yes	Discretionary	A court may award a successful plaintiff reasonable attorney fees and other costs of litigation. If the plaintiff prevails in part, the court may in its discretion award fees or an appropriate portion of the fees. S.C. Code Ann. (1991) § 30-4-100(b).
South Dakota	No	Yes	Discretionary	Although possible, awards are highly unlikely.
Tennessee	Yes	Yes	Mandatory, if bad faith	The Act makes an award of attorney's fees discretionary with the court, if "the court finds that a governmental entity, or agent thereof, refusing to disclose a record knew that such record was public and willfully refused to disclose it." T.C.A. § 10-7-505(g) (1999).
Texas	Yes	Yes	Mandatory, unless reasonable	Section 552.323(a) provides that in any suit brought under sections 552.321 or 552.3215 "the court shall assess costs of litigation and reasonable attorney fees incurred by a plaintiff or defendant who substantially prevails . . ." except that costs and fees may not be assessed if the court finds that the governmental body acted in reasonable reliance on a judgment or an order of a court, the published opinion of an appellate court, or a written decision of the Attorney General.
Utah	Yes	Yes	Both	The court may assess against the government entity the reasonable attorneys’ fees incurred by the requester if the requester substantially prevails on appeal. See Utah Code Ann. § 63G-2-802(2). The court shall award attorneys’ fees and costs to prevailing records requesters if the government entity asserts the records are confidential under Utah Code section 63-2-405 and the court denies confidential treatment under that section and determines that no statutory or constitutional exemption from disclosure “could reasonably apply to the record in question.”
Vermont	Yes	Yes	Both	Litigation expenses are mandatory if the attorney representing the public entity does not concede that the documents are public records within the time to answer under the Vermont Rules of Civil Procedure. Attorney’s fees may be assessed even when the concession is made. Finally, if the person seeking the records violates Rule 11 of the Vermont Rules of Civil Procedure, attorney’s fees may be assessed against him or her. 2011 Vermont Acts & Resolves 59.
Virginia	Yes	Yes	Discretionary	Attorneys’ fees can be awarded where the petitioner substantially prevails and where there are no special circumstances making the award unjust. Va. Code Ann. § 2.2-3713(D).
Washington	Yes	Yes	Mandatory	A requester who prevails against an agency that has denied a record must be awarded their costs, including reasonable attorneys’ fees. RCW 42.56.550(4).
West Virginia	Yes	Yes	Mandatory	The 1992 legislature provided that "[a]ny person who is denied access to public records requested pursuant to this article and who successfully brings a suit filed pursuant to [the FOIA] shall be entitled to recover his or her attorney fees and court costs from the public body that denied him or her access to the records." W. Va. Code § 29B-1-7.
Wisconsin	Yes	Yes	Mandatory	If the requester prevails in whole or in substantial part, the court shall in addition award reasonable attorneys' fees, damages of not less than $100 and other actual costs to the plaintiff. Wis. Stat. § 19.37(2).
Wyoming	No	Yes	Discretionary	Generally, courts have wide discretion in determining costs and attorneys fees. The Supreme Court has held that the court has authority to modify attorneys' fees. State ex. rel. Wyo. Workers' Comp. Div. v. Brown, 805 P.2d 830 (Wyo. 1991). The Public Records Act has no provision for the award of attorney fees.

Laws available on individual state websites, and the nonprofit Reporters Committee Freedom of the Press website.

See also

• Freedom of Information Act
• Freedom of Information in the United States