Kline v. Fuller

³⁷⁷ GARRITY, Judge. We shall focus upon the standard used in determining whether to grant an award of attorney fees to a litigant forced to bring an action under the Maryland Public Information Act in order to gain access to public documents. Procedural Background The matter sub judice arises from our holding in Kline v. Fuller, 56 Md.App. 294 , 467 A.2d 786 (1983). In that case we determined that the Sheriff of Charles County, the appellee herein, was a state official and, therefore, subject to the Public Information Act (Md. Act).

We remanded the case to provide the trial court an opportunity to examine a petition (which sought information regarding promotion standards) in light of the procedure set forth in Md.Ann. Code art. 76A, §§ 1 through 5 (Repl.Vol.1980). 1 On remand, the circuit court ordered the disclosure of information which had been sought by Deputy Kline, but denied his request for an award of attorney fees. The sole issue before us is whether the trial court abused its discretion in denying such award. Facts To gain insight into the past trials and tribulations of appellant Kline, an officer in the Sheriffs Department of Charles County, we shall briefly review the facts contained in Kline v. Fuller, 56 Md.App. at 302-303 , 467 A.2d 786 . Although a deputy sheriff since 1973 under the county merit system, Deputy Kline has not been promoted since 1978 when he attained the rank of Patrolman First Class.

In June 1982, upon suspecting his performance was being evaluated unfairly, and coupled with the fact that he had remained at that rank longer than any other member of the department, Deputy Kline filed a grievance with the ³⁷⁸ Charles County Board of Public Safety. When preparing for his appearance before the board, Deputy Kline requested Sheriff David D. Fuller to make available for inspection and copying various records pursuant to the Md. Act. Shortly thereafter, Sheriff Fuller provided access to certain records of the department while withholding others “in the public interest.” The appellant thereupon specifically requested (1) a court order for access to the evaluation methodology used for calculating the numerical scores used by the sheriff in recommending personnel for promotion and (2) certain correspondence between Sheriff Fuller and the local Fraternal Order of Police. The lower court dismissed Deputy Kline’s petition on the grounds that he had not exhausted his administrative remedies.

In reversing and remanding the case for further proceedings, Judge Wilner, writing on our behalf, commented: Throughout this proceeding, the county attorney, on behalf of the sheriff, has laid great stress on the fact that Kline failed to request the records from the Board of Public Safety. She argued to the court below and has argued to us that there are still administrative remedies available to Mr. Kline, if only he would take advantage of them. It came as a surprise to us (and to Kline), therefore, when, at oral argument, she indicated that one category of the records sought by Kline does not exist and the other she regards as non-disclosable under both the public general and the public local laws. If that is true — even if it is not true, if that indeed is the sheriff’s position — it is obvious that a request to the board would have been entirely meaningless.

If the records do not exist, or if they are exempt from disclosure by law, appellant should have been told that in August, 1982, not fourteen months later at oral argument before this Court. For whatever reason, the sheriff and the county government have simply obfuscated and delayed Kline in his quest for the records; and that is not the way govern- ³⁷⁹ merit officials ought to act. (Emphasis added.) 56 Md. App. at 305 , 467 A.2d 786 . The sole issue for the circuit court’s determination at the hearing on remand was the status of the sheriff’s written evaluation methodology as a document available for public inspection.

At the hearing, Sheriff Fuller argued that disclosure of his evaluation formula “which assigned weight to various components” of performance would allow officers to manipulate their grades for promotion by unduly concentrating their performance on important items worth more points while neglecting areas of conduct worth less. Such performance adjustments, Sheriff Fuller contended, would result in a less responsible department and prove to be a disservice to the community. The trial judge rejected this argument and ordered that the evaluation methodology be made available for inspection. Deputy Kline then requested, pursuant to art. 76A, § 5(b)(6) (comparable language currently in Md. State Gov’t Code Ann. § 10-623(f)), that he be allowed an award of counsel fees.

That section provides: The court may assess against any defendant governmental entity or entities reasonable attorney fees and other litigation costs reasonably incurred in any case under this section in which the court determines that the appellant has substantially prevailed. Deputy Kline argued that he had substantially prevailed in the suit and was therefore entitled to attorney fees under the statute. The court pointed out, however, that the award was discretionary. In denying the request the court found that (1) the additional expense to both parties had been caused by the erroneous ruling of the previous trial judge, and that (2) the production of the records had been for Deputy Kline’s convenience.

We shall examine the purpose of the statute, the meaning of “substantially prevailed,” and factors to be considered when determining whether to award attorney fees to a litigant who has substantially prevailed. ³⁸⁰ Discussion of Law As Judge Wilner pointed out in Kline v. Fuller, 56 Md.App. at 298 , 467 A.2d 786 : As presently constituted, the public general law, in § 1A of art. 76A, sets forth a clear legislative policy. It states, in relevant part: “[A]ll persons are entitled to information regarding the affairs of government and the official acts of those who represent them as public officials and employees. To this end, the provisions of this act shall be construed in every instance with the view toward public access, unless an unwarranted invasion of the privacy of a person in interest would result therefrom, and the minimization of costs and time delays requesting information.” (Emphasis supplied.) In order to maintain the viability of the legislative goal to provide citizens access to information about the business of their government, not only must officials and employees be encouraged to comply with the provisions of the Public Information Act, but assurance must be provided to those wronged that officious over-reaching can be effectively challenged. Generally, if a complainant has been successful in proving that a government official has withheld information wrongfully, rather than penalize the citizen for bringing such conduct to the attention of the courts, his or her expenses are absorbed by the public.

Indeed, because of the sheer cost of litigation, the award of reasonable attorney fees and costs may oft times serve as the very catalyst which enables close scrutiny of legislative foundations and governmental decisions. The Court of Appeals has dealt with the issue of attorney fees and costs in the aftermath of Md. Act challenges, but only to recognize their valid award under proper circumstances. In Attorney Grievance Commission v. The A.S. Abell Co., 294 Md. 680 , 452 A.2d 656 (1982), fee recovery was denied on the basis that on appeal the publishing ³⁸¹ company was held not to be the prevailing party. 2 In A.S. Abell Publishing Co. v. Mezzanote, 297 Md. 26 , 464 A.2d 1068 (1983), the court denied attorney fees and costs to the prevailing party because of a statute which provided general immunity from liability to the specific agency being sued (Maryland Guaranty Association). A. Meaning of Substantially Prevailed To be eligible for an award of attorney fees and costs a claimant must establish the threshold requirement that as a result of the action he or she has substantially prevailed in gaining the information sought.

A useful device in allowing us to review decisions from other jurisdictions in our quest for guidance as to the meaning of “substantially prevailed” is the doctrine of in pari materia. Under this doctrine, the statute in question may be construed by reference to other statutes dealing with the same subject. Cranford v. Montgomery County, 300 Md. 759 , 481 A.2d 221 (1984); Willis v. State, 302 Md. 363 , 488 A.2d 171 (1985). Section 5(b)(6) of the state Public Information Act closely parallels the federal Freedom of Information Act (FOIA) which provides in 5 U.S.C. 552(a)(4)(E): The court may assess against the United States reasonable attorney fees and other litigation costs reasonably incurred in any case under this section in which the complainant has substantially prevailed.

There are several federal cases which have addressed the issue of how a court determines whether a claimant has substantially prevailed under the statute. Goldstein v. ³⁸² Levi, 415 F.Supp. 303 (D.C.1976); Vermont Low Income Advocacy Council v. Usery, 546 F.2d 509 (2d Cir.1976); Cox v. United States Department of Justice, 601 F.2d 1 (D.C.Cir.1979); Westinghouse v. N.L.R.B., 497 F.Supp. 82 (W.D.Pa.1980). In Goldstein, supra, the plaintiff was a producer for a public television station who requested from the F.B.I. certain statements which had been taken during the Rosenberg espionage investigation. The request was denied and plaintiff sought administrative review.

The denial was affirmed and subsequently the plaintiff requested a reconsideration, which was also denied. Thereafter, the plaintiff filed suit and within weeks the statements were released. The plaintiff then petitioned the court for attorney fees and costs. In granting the award, the court noted that “while it is true that no court action was required to release the documents, it is significant that plaintiff was unsuccessful in obtaining the information for three years, but was successful within a few weeks of filing a court action.” Id. at 305 .

The Council in Vermont Low Income Advocacy Council, supra, requested and was denied documents from the Department of Labor that had been prepared in connection with evaluations of apple growers’ efforts to recruit domestic labor to pick the annual harvest. The Council administratively appealed the decision to the Solicitor of Labor who acknowledged receipt of the appeal and promised a reply by October 22. As a reply was not received by . October 30th, the Council advised the Solicitor of its intent to file suit unless the documents were released by November 5th.

The Solicitor’s office responded via telegram that the requested documents were in the mail to them from the Department of Labor and asked for the Council’s telephone number so they could discuss the matter. The Council failed to respond to the telegram and complications arose when the wrong material was sent to the Solicitor’s office. On November 12th, the Council filed suit against the Department ³⁸³ of Labor, and on December 6th, it filed a motion for summary judgment. The correct records were received in the Solicitor’s office on December 11th, and on December 12th the Council’s appeal was granted.

The Council was advised of the Solicitor’s decision on December 16th and received the material on December 30th. The Council withdrew its motion for summary judgment and petitioned the court for attorney fees. In denying the petition the court stated that while a favorable judgment is not a prerequisite for an award of attorney fees, a claimant is not eligible for an award merely because the information sought was released after the suit had been filed. “[Pjlaintiff must show at a minimum that the prosecution of the action could reasonably have been regarded as necessary and that the action had substantial causative effect on the delivery of the information.” Id. at 513 . The court reasoned that because the Solicitor exhibited a good faith desire to provide the Council with all that the FOIA required, the result would have been the same had the Council not filed suit.

The delay was caused only by the regional office’s temporary failure to locate the records. Consequently, the lawsuit was not the cause of the delivery of the information. The claimant in Cox, supra, was an inmate at a federal penitentiary who had requested a copy of the U.S. Marshals’ Manual