Government transparency gets victory in court

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By Steve Key

In a 3-2 vote, the Indiana Supreme Court found that parties that intervene to prevent records from being made available under an Access to Public Records Act lawsuit can be ordered to pay for the winning plaintiff’s reasonable attorney fees and court costs.

Interestingly, the July 31 decision (Shepherd Properties Co. v. International Union of Painters and Allied Trades District Council 91) comes in a case where Indiana’s public access counselor had ruled against the records requester.

The union had asked for copies of payroll records submitted to the Warren Township school district in Marion County by Shepherd Properties Co., also known as ShepCo, a subcontractor on a school project.

The school district denied the request, claiming the records were trade secrets and confidential financial information that could be kept confidential under the Access to Public Records Act.

Both ShepCo and the union requested a separate opinion from the access counselor, who agreed with Warren Township schools.

Despite the contrary opinion, the union filed a lawsuit against the school district in 2008, and ShepCo became an intervenor in the case.

The union won the case, and the trial court judge ordered the school district and ShepCo to pay the union’s legal fees of $20,234.

ShepCo appealed that decision, arguing that the Access to Public Records Act did not call for the charging of attorney fees against a private party, only the government agency holding the records.

The Indiana Court of Appeals ruled that private parties can be held liable for attorney fees, not an intervenor in an Access to Public Records Act case.

In two previous cases the appellate court ruled that private parties could be required to pay attorney fees.

One case involved The Indianapolis Star, and the other the Knightstown Banner.

The union argued before the five justices that ShepCo’s intervenor status didn’t differentiate it from the other cases where private parties aligned with public agencies to oppose the release of records.

Writing the court’s opinion, Justice Steven H. David said: “To shield private entities from liability for attorney’s fees would thwart, rather than further, the public policy underlying the Access to Public Records Act. Here, the legislature has made it clear that the Access to Public Records Act must be ‘liberally construed to implement’ the policy of full access to public record and transparency of government affairs.

“Removing from private entities any fear of liability for attorney’s fees would deter persons seeking to inspect public records from filing Access to Public Records Act actions, as the private entities could assert non-meritorious defenses to avoid disclosure and drive up litigation costs.”

Justice Robert D. Rucker and then-Justice Frank Sullivan Jr. concurred. Chief Justice Brent Dickson and Justice Mark Massa dissented but did not put their objections in writing.

David’s opinion also set out factors that a trial court judge should consider when apportioning liability for attorney fees between a private party and government unit.

He wrote: “When determining the allocation, courts should consider various factors, such as whether a party acted in good or bad faith; whether a party played a nominal or active role; and whether a party was partisan or neutral in the cause of action.”

The Supreme Court then remanded the case back to the trial court to determine how much more in attorney fees the union incurred due to ShepCo’s appeal.

The case is a clear victory for government transparency.

Steve Key is executive director and general counsel for HSPA.

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