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Private parties liable for attorney fees in open records disputes

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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.

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  1. A sad end to a prolific gadfly. Indiana has suffered a great loss in the journalistic realm.

  2. Good riddance to this dangerous activist judge

  3. What is the one thing the Hoosier legal status quo hates more than a whistleblower? A lawyer whistleblower taking on the system man to man. That must never be rewarded, must always, always, always be punished, lest the whole rotten tree be felled.

  4. I want to post this to keep this tread alive and hope more of David's former clients might come forward. In my case, this coward of a man represented me from June 2014 for a couple of months before I fired him. I knew something was wrong when he blatantly lied about what he had advised me in my contentious and unfortunate divorce trial. His impact on the proceedings cast a very long shadow and continues to impact me after a lengthy 19 month divorce. I would join a class action suit.

  5. The dispute in LB Indiana regarding lake front property rights is typical of most beach communities along our Great Lakes. Simply put, communication to non owners when visiting the lakefront would be beneficial. The Great Lakes are designated navigational waters (including shorelines). The high-water mark signifies the area one is able to navigate. This means you can walk, run, skip, etc. along the shores. You can't however loiter, camp, sunbath in front of someones property. Informational signs may be helpful to owners and visitors. Our Great Lakes are a treasure that should be enjoyed by all. PS We should all be concerned that the Long Beach, Indiana community is on septic systems.

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