Massachusetts Public Records – Attorney Fees – New England First Amendment Coalition

What are attorney fees?

Among the most consequential elements of the 2016 update to the Massachusetts Public Records Law was the introduction of attorney fee awards for successful lawsuits. M.G.L. ch. 66 § 10A(d)(2). Until that point, someone suing under the Public Records Law had no mechanism to recoup their legal fees. This arrangement placed the high upfront costs of vindicating the public’s rights to government transparency and accountability wholly on the shoulders of private litigants who had no possibility of compensation on the backend.

The 2016 revision introduced a possibility of compensation. Section 10A(d)(2) reads: “The superior court may award 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.” Though this language is discretionary, the subsection goes on to state that obtaining relief creates a presumption in favor of awarding attorney fees. The presumption can be can be rebutted only if the defendant agency or municipality “establishes that:

• the [supervisor of records] found that the agency or municipality did not violate [the Public Records Law];
• the agency or municipality reasonably relied upon a published opinion of an appellate court of the commonwealth based on substantially similar facts;
• the agency or municipality reasonably relied upon a published opinion by the attorney general based on substantially similar facts;
• the [public records] request was designed or intended to harass or intimidate; or
• the request was not in the public interest and made for a commercial purpose unrelated to disseminating information to the public about actual or alleged government activity.

These safe harbors have not yet been tested much in court, but early results indicate that courts will construe them narrowly. Notably, a trial judge in 2022 rejected out of hand a municipality’s assertion that the absence of precedent that is directly on point can form the basis of reliance sufficiently reasonable to fall within § 10A(d)(2)(ii) or (iii). Gatehouse Media, LLC v. City of Worcester (2022) (decision on motion for attorney fees).

But I’m not an attorney. How can these fees help me?

Break it down for the non-attorney / journalist. Quote legislature or NEFAC leading up to reform: Why are the attorney fees important… they deter secrecy, incentivize agencies to be transparent when they wouldn’t otherwise be, etc. XXXXX XXXXXX XXXXX XXXXXX XXXXX XXXXXX XXXXX XXXXXX XXXXX XXXXXX XXXXX XXXXXX XXXXX XXXXXX XXXXX XXXXXX XXXXX XXXXXX XXXXX XXXXXX XXXXX XXXXXX XXXXX XXXXXXXXXXX XXXXXX XXXXX XXXXXX XXXXX XXXXXX XXXXX XXXXXX XXXXX XXXXXX XXXXX XXXXXXXXXXX XXXXXX XXXXX XXXXXX XXXXX XXXXXX XXXXX XXXXXX XXXXX XXXXXX XXXXX XXXXXXXXXXX XXXXXX XXXXX XXXXXX XXXXX XXXXXX XXXXX XXXXXX XXXXX XXXXXX XXXXX XXXXXXXXXXX XXXXXX XXXXX XXXXXX XXXXX XXXXXX XXXXX XXXXXX XXXXX XXXXXX XXXXX XXXXXX

[Video with Caruso or Others re Fees and How to Bring Cases]

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When have attorney fees been awarded in public record cases?

Though the attorney fees provision of the Public Records Law has not been litigated much since it took effect in 2017, there are a few examples of cases in which successful litigants were awarded fees. NEFAC is keeping a log of all these cases. If you are aware of a case not listed below, please email the court’s order to justin@nefac.org.

Gatehouse Media, LLC v. City of Worcester (2022) (1885CV01526)
Gatehouse was awarded $100,949.13 to cover its legal fees and costs after the court determined that the city had improperly withheld requested records. The trial judge declined to entertain Worcester’s argument that novel and good-faith readings of precedent can constitute reasonable reliance under 10A(d)(2)(ii), indicating that the presumption in favor of awarding fees will not be easy to rebut. In addition to attorney fees, the court ordered Worcester to pay $5,000 in punitive damages, on the grounds that it had no legal basis for denying the records requests at issue. The court awarded only about half of the requested fee amount, on the grounds that the request was excessive in relation to the work performed. Gatehouse is appealing this reduction.

Boston Globe Media Partners, LLC v. Department of Public Health (2021) (1984CV02387)
The court awarded the Boston Globe $16,650 in attorney fees, in response to the parties’ joint motion. The fees were awarded after the Department of Public Health moved for judgment in favor of the Globe, following two court orders to comply with the Public Records Law.

Boston Globe Media Partners, LLC v. Massachusetts State Police Dept. (2021) (2084CV00538)
The case settled before its public records issues could be tried, but the court awarded the Boston Globe$22,592.50 in response to a joint motion for attorney fees that the parties filed prior to the dismissal.

Is the attorney fees provision helping in other ways?

Court awards tell only some of the story, however. Since the 2016 revision, there have been numerous instances in which municipalities or agencies responded to public records lawsuits by quickly seeking to settle the case and cover the plaintiff’s legal fees. Among these examples are:

Trustees of Boston University v. Boston Police Department (2022)
According to Todd Wallack, city attorneys reached out to settle the case almost immediately after it was filed. Just over a year passed between the filing of the complaint and the city’s delivery of the settlement check. City paid WBUR $7,000.

Law Offices of Howard Friedman, P.C. v. City of Boston (2021) (2084CV01904)
According to Howard Friedman, the case settled very quickly, and the city paid his requested rate of $500 per hour, for total compensation of $6,500. Howard reports that his records requests have been receiving much warmer welcomes from the city since this settlement.

Boston Globe Media Partners, LLC v. Massachusetts Bay Transportation Authority (2020) (1884CV03489)

ACLU of Massachusetts v. City of Boston (Operation Clean Sweep case) (2021) (1984CV02998)

ACLU of Massachusetts et al v. City of Boston (2084CV01802)
In active settlement negotiations as recently as November 30.

ACLU of Massachusetts v. City of Springfield (2022) (2079CV00295)

ACLU of Massachusetts v. Massachusetts Dept. of Transportation (2020) (1984CV02193)

How can I take advantage of the attorney fees provision and litigate my public records case?

What steps need to be taken… Justin to help with this section… XXXXX XXXXXX XXXXX XXXXXX XXXXX XXXXXX XXXXX XXXXXX XXXXX XXXXXX XXXXX XXXXXX XXXXX XXXXXX XXXXX XXXXXX XXXXX XXXXXX XXXXX XXXXXX XXXXX XXXXXX XXXXX XXXXXXXXXXX XXXXXX XXXXX XXXXXX XXXXX XXXXXX XXXXX XXXXXX XXXXX XXXXXX XXXXX XXXXXXXXXXX XXXXXX XXXXX XXXXXX XXXXX XXXXXX XXXXX XXXXXX XXXXX XXXXXX XXXXX XXXXXXXXXXX XXXXXX XXXXX XXXXXX XXXXX XXXXXX XXXXX XXXXXX XXXXX XXXXXX XXXXX XXXXXXXXXXX XXXXXX XXXXX XXXXXX XXXXX XXXXXX XXXXX XXXXXX XXXXX XXXXXX XXXXX XXXXXX

Include list of attorneys and contact info along with NEFAC disclaimer.

Other resources and helpful press coverage:

• Links to NEFAC advocacy, articles on cases cited above, etc.