The state of Vermont has taken a big step in the direction of more open government by amending its FOI law to allow for awards of attorney’s fees to successful requesters. Why does this matter? Recalcitrant government agencies generally are not at risk for penalties for improperly withholding records. (Indeed, one can argue that they actually have disincentives to disclose, but that’s another matter.) Few requesters, having been denied records, have the motivation and financial resources to hire a lawyer and file suit.
The presence of a “fee-shifting” provision in a state’s FOI law makes agencies think twice before turning down valid record requests. Frustrated requesters have a chance of finding a competent lawyer who will represent them for free—based on the expectation that the lawyer will succeed in the lawsuit and have his fees paid by the government agency. No bureaucrat wants to be responsible for her agency’s having to write a check for $10,000 (or more) for a plaintiff’s attorney’s fees, particularly in a period of tight budgets.
Vermont’s amendment, §319 of the Vermont Statutes, requires a public agency to pay a requester’s legal fees where the requester “substantially prevails” in litigation to compel access to records. This is essentially the same standard that is in the federal FOIA law. However, as pointed out in a recent commentary by Brittany Griffin Smith (in the Citizen Media Law Project, http://bit.ly/pb3JTu), Vermont’s statute also gives government agencies a second chance to comply with a valid FOI request. After a suit is filed, an agency has the option of conceding that the records are in fact public and disclosing them. In that scenario, the judge has discretion NOT to award attorney’s fees to the requester.
Vice President, NFOIC, Executive Director, First Amendment Coalition