Private parties liable for attorney fees in open records disputes

The Indiana Supreme Court affirmed a trial court’s ruling that held a private party liable for attorney fees in an Access to Public Records Act claim.

The International Union of Painters and Allied Trades filed a complaint against the Metropolitan School District of Warren Township after the township and the Public Access Counselor the denied a request to inspect and copy payroll records. The records had been submitted by ShepCo Commercial Finishes, a subcontractor on a public-works project.

Although the trial court denied the township’s motion to add ShepCo as a necessary party, it did grant ShepCo’s motion to intervene.

After a hearing, the trial court entered summary judgment for the union and ordered the township to disclose the records. The trial court also awarded the union $20,234 in attorney fees against the township and ShepCo, jointly and severally.

The union then filed a motion to amend the final judgment seeking additional attorney fees expended by its counsel in litigating the original request for attorney fees. The trial court entered an amended judgment awarding the union an additional $2,425.

ShepCo appealed; the Court of Appeals concluded that the company was not liable for attorney fees because it was not a public agency that denied access to public records.

The Supreme Court reversed that decision, finding that private parties may be liable for attorney fees under the APRA.  

Writing for the court, Justice Steven David argued, “To shield private entities from liability for attorney’s fees would thwart, rather than further, the public policy underlying APRA. Here, the legislature has made is clear that the APRA must be ‘liberally construed to implement’ the policy of full access to public records and transparency of government affairs. And the legislature clearly contemplated the involvement of private parties in APRA litigation. Removing from private entities any fear of liability for attorney’s fees would deter persons seeking to inspect public records from filing APRA actions, as the private entities could assert non-meritorious defenses to avoid disclosure and drive up litigation costs.”

The Supreme Court affirmed the award of attorney fees to the union and remanded to the trial court to determine what additional attorney fees the union incurred as a result of ShepCo’s appeal.