You Can’t Obtain Attorney’s Fees from Anything But a Public Agency for a Violation of the Access to Public Records Act

Can a private entity be responsible for attorney’s fees under the Indiana Access to Public Records Act, I.C. Chapter 5-14-3? Yesterday, the Indiana Court of Appeals answered that question in the negative in Shepherd Properties Co. v. Intern’l Union of Painters and Allied Trades, District Council 91, ___ N.E.2d ___ (Ind. Ct. App. 2011), Cause No. 49A04-1010-PL-676.

Shepherd was a subcontractor for a public works project in Warren Township in Marion County. The Union requested to inspect and copy certified payroll records submitted by Shepherd, which Warren Township retained, but Shepherd claimed was confidential and contained trade secrets. Shepherd’s counsel made a formal inquiry of the Indiana Public Access Counselor and Warren Township, reling upon that inquiry, denied the Union’s request.

The Union filed a complaint to compel compliance with the Access to Public Records Act and Shepherd intervened. The Union moved for and was granted summary judgment. The trial court then held a hearing on the issue of attorney’s fees and awarded fees to the Union against Shepherd and Warren Township, jointly and severally. Shepherd appealed.

On appeal, the Court noted that attorney’s fees shall be awarded under the Access to Public Records Act for the wrongful denial of document disclosure if the requestor must coerce compliance, if certain conditions are met. However, the Court concluded that the statute did not require private parties to pay any portion of those fees.

Therefore, the trial court erred when making Shepherd responsible for any portion of the Union’s attorney’s fees.

The Court’s conclusion in this case should offer some additional incentive for public agencies to comply with the Access to Public Records Act. However, it will also embolden private entities to pressure public agencies not to grant access, particularly when that private entity can claim confidentiality. Private entities doing business with public agencies should also take care to negotiate how much confidential information the private entity provides to the public agency – that information may become subject to the Access to Public Records Act.

Lesson:

1. Private entities cannot be forced to pay attorney’s fees to a requestor that is forced to coerce compliance with the Indiana Access to Public Records Act.