Private Entities Liable For Attorneys’ Fees For Opposing Public Access

In a decision earlier this week, a slim 3-2 majority of the Indiana Supreme Court held that private entities who intervene to oppose access to public records are subject to liability for the attorneys’ fees of the party who successfully sues for access under the Indiana Access to Public Records Act (“APRA”).

The case is Shepard Properties Co. v. International Union of Painters & Allied Trades District Council 91. This link will take you to the opinion.

It is not unusual in APRA cases for a private party to oppose the release of documents and information provided to a public body. The Supreme Court’s decision makes it clear that those private parties have more “skin in the game” than the disclosure of the information itself and will be subject to a fee award when they wrongly oppose public access.

In Shepard Properties, a union sought payroll records relating to a public works project from a School District. A subcontractor on the project, Shepard Properties, opposed the disclosure and encouraged (through threats and otherwise) the School District to resist disclosure. After the union filed an APRA lawsuit, the Subcontractor intervened in the action and continued, along with the School District, to oppose disclosure.

The trial court ruled in favor of the union and awarded it its attorneys’ fees jointly and severally against the School District and the Subcontractor. On appeal, the Indiana Court of Appeals reversed the fee award against the Subcontractor, reasoning that APRA did not expressly authorize a fee award against a private party intervenor.

The Supreme Court vacated the Court of Appeals’ decision and agreed with the trial court’s fee award against the Subcontractor. The Supreme Court reasoned that APRA’s fee award provisions mandate a fee award to a plaintiff who succeeds in a lawsuit to compel access to public records, but is silent as to who is liable for such fees. The Court looked to the purpose of the APRA in order to interpret the law in light of that silence:

To shield private entities from liability for attorney’s fees would thwart, rather than further, the public policy underlying the APRA. Here, the legislature has made it clear that the APRA must be “liberally construed to implement” the policy of full access to public records and transparency of government affairs. I.C. § 5-14-3-1. 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. In light of the “liberal” construction mandate and the underlying policy of the APRA, we construe Indiana Code section 5-14-3-9(i) as permitting private-party liability for a prevailing plaintiff’s attorney’s fees.

The opinion was written by Justice David and joined by Justices Rucker and Sullivan. Chief Justice Dickson and Justice Massa dissented without opinion.

About Bose McKinney & Evans LLP

Bose McKinney & Evans LLP is a business law firm, headquartered in Indianapolis, Indiana, serving both publicly held and privately held businesses, governmental entities and high-growth industries. Our clients include Fortune 100 companies, international manufacturers, national and regional financial institutions, agribusinesses, sports teams, university-incubated start-ups, media, utilities, cities and schools, to name a few. We strive to build strong relationships with our clients as key business advisors, to exceed expectations in the quality of our work, to be knowledgeable about our clients’ businesses and sectors, to be responsive to service needs and to continually seek to improve the delivery of client services. Our ultimate focus is on our clients.
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