In the course of concluding 4 ½ years of litigation, the Superior Court recently found the Attorney General’s Office (AGO) partially responsible for Energy Policy Advocates’ (EPA) attorney’s fees and costs in a lawsuit under the Public Records Law. In Energy Policy Advocates v. Office of the Attorney General of Massachusetts, the EPA sought from the AGO a substantial amount of records pertaining to a “politically sensitive” program whereby the AGO secured private funding to retain lawyers assigned to energy-related litigation in which the AGO was a party. The AGO withheld a number of responsive documents, citing various exemptions and privileges. The EPA sued for release of the withheld documents. Over the course of the litigation, documents that were originally withheld by the AGO were progressively produced to the EPA. At the conclusion of the case, upon a review and order of the Court, the AGO had produced 305.5 of the 309 records responsive to EPA’s initial requests, despite its earlier claims that these documents were not subject to release. EPA sought $86,500 in legal fees and costs from the AGO.
The Public Records Law, G.L. c. 66, §§ 1-21, allows the recovery of “reasonable attorney fees and costs in any case in which the requester obtains relief through a judicial order, consent decree, or the provision of requested documents after the filing of a complaint.” G.L. c. 66, § 10A(d)(2). The Court focused largely on the fact that EPA had a 99% success rate of obtaining the records it originally requested. While the AGO was successful in arguing that a portion of the fees were unreasonable, the Court still ordered it to pay a substantial amount of EPA’s legal fees. The Court stated that “[a]lthough the fee award will not be small, the AGO cannot be surprised that 4 ½ years of contentious litigation (in which the overwhelming majority of its pre-suit positions were either conceded or rejected) has produced such a result.”
It is not often that public records requests result in lawsuits against a public entity. However, it is important to keep in mind the possible outcomes of such litigation. This case is a reminder to public entities to be judicious in determining whether a record can be withheld.
