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VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL
COMMONWEALTH
OF VIRGINIA |
AO-01-24
February
14, 2024
Jeff
Thomas
Richmond, Virginia
Request received via email
The staff of the Freedom of Information Advisory Council
is authorized to issue advisory opinions. The ensuing
staff advisory opinion is based solely upon the information
presented in your email of March 23, 2023.
Dear
Mr. Thomas:
You have asked whether there are certain circumstances
in which a pro se1 petitioner
would be eligible for the reimbursement of attorney
fees in court hearings concerning alleged violations
of the Virginia Freedom of Information Act (§
2.2-3700 et seq. of the Code of Virginia) (FOIA).
Questions Presented
You submitted two specific questions:
1. If a pro se petitioner wins a FOIA case
in district court, but the respondent appeals and
the petitioner hires an attorney to represent him
on appeal, under what circumstances would a petitioner
be entitled to reimbursement of attorney fees?
2. In general, if a petitioner files a FOIA case as
a pro se litigant and later hires an attorney,
under what circumstances would a petitioner be entitled
to reimbursement of attorney fees?
Factual Background
As background information, Mr. Thomas, you stated
that you are not an attorney but were a pro se
petitioner in a recent FOIA case2 in which
the trial court granted summary judgment to you. The
trial court determined that certain records were improperly
withheld and ordered the respondent to provide copies
to you. The court also ordered the respondent to pay
costs incurred by you, as the pro se petitioner,
which at the time were only the filing fee and printing
costs. You stated that at the summary judgement hearing
the Office of the Attorney General, representing the
respondent, "indicated an intention to appeal
the trial court's decision." You stated that
"you would hire an attorney if the respondent
appealed and would seek reimbursement for attorney
fees." You stated that there was discussion amongst
the parties and the trial court as to whether you
would be able to receive attorney fees if you hired
an attorney to represent you during appeal. You stated
that the "respondent ultimately decided not to
appeal so this question was not tested."
Analysis
For purposes of transparency, our office has stated
in a prior advisory opinion that:
It is the policy of this office not to issue an
opinion once litigation is commenced or a judge
of competent jurisdiction has rendered an opinion
on the same factual questions raised in a request
for an advisory opinion of the [Freedom Information
Advisory] Council. The court and not the Council,
is the appropriate body to decide and settle a dispute
as a matter of law.3
You
indicated that the legal proceedings in this matter
have been resolved and that there is no anticipated
appellate action pending in the court system. As the
trial court did not formally consider or issue judgement
in regards to awarding attorney fees in a potential
appellate hearing, our office will address individually
the two questions you have presented regarding whether
there are circumstances in which a pro se
petitioner would become eligible to receive attorney
fees in a FOIA case.
Question
1: If a pro se petitioner wins a FOIA case
in district court, but the respondent appeals and
the petitioner hires an attorney to represent him
during appeal, under what circumstances would a petitioner
be entitled to reimbursement of attorney fees?
FOIA provides in subsection A of § 2.2-3713 of
the Code of Virginia that:
Any person, including the attorney for the Commonwealth
acting in his official or individual capacity, denied
the rights and privileges conferred by this chapter
may proceed to enforce such rights and privileges
by filing a petition for mandamus or injunction,
supported by an affidavit showing good cause. Such
petition may be brought in the name of the person
notwithstanding that a request for public records
was made by the person's attorney in his representative
capacity.
Subsection A of § 2.2-7313 also allows the petitioner
to choose whether to file a petition for mandamus
or injunction in either general district or circuit
court. Subsection D of § 2.2-3713 provides that:
The petition shall allege with reasonable specificity
the circumstances of the denial of the rights and
privileges conferred by this chapter. A single instance
of denial of the rights and privileges conferred
by this chapter shall be sufficient to invoke the
remedies granted herein. If the court finds the
denial to be in violation of the provisions of this
chapter, the petitioner shall be entitled to recover
reasonable costs, including costs and reasonable
fees for expert witnesses, and attorney fees from
the public body if the petitioner substantially
prevails on the merits of the case, unless special
circumstances would make an award unjust. In making
this determination, a court may consider, among
other things, the reliance of a public body on an
opinion of the Attorney General or a decision of
a court that substantially supports the public body's
position.
For
a petitioner to "recover reasonable costs, including
costs and reasonable fees for expert witnesses, and
attorney fees from the public body," a petitioner
must first include a request for costs and fees in
its pleadings. Generally, it would appear unlikely
for a pro se petitioner to be entitled to
recover reimbursement for attorney fees and costs,
because a pro se petitioner would not have
retained legal counsel for representation in the matter,
and therefore would not have incurred any attorney
fees or costs during the applicable litigation proceedings.
Nevertheless, a trial court awarding a prevailing
pro se petitioner reimbursement for other
incurred litigation costs and fees may be reasonable.
In
Hawkins v. Town of South Hill, the Supreme
Court of Virginia addressed the award of attorney
fees under FOIA while analyzing the personnel information
exemption provided by subdivision 1 of § 2.2-3705.1
of the Code of Virginia. The Supreme Court stated
that according to Rule 5:25 of the Rules of Supreme
Court of Virginia, "[n]o ruling of the trial
court . . . will be considered as a basis for reversal
unless an objection was stated with reasonable certainty
at the time of the ruling."4 The Supreme
Court further stated that "[i]n analyzing whether
a litigant has satisfied the requirements of Rule
5:25, this [Supreme] Court has consistently focused
on whether the trial court had the opportunity to
rule intelligently on the issue."5
Moreover, the Supreme Court provided that "[i]f
[the] opportunity [to address an issue] is not presented
to the trial court, there is no ruling by the trial
court on the issue, and thus no basis for review or
action by this [Supreme] Court on appeal."6
In Hawkins, "the circuit court made
no ruling on attorney's fees or on whether Hawkins
'substantially prevailed.'"7 The petitioner
"failed to obtain a ruling on the prevailing
party issue or the issue of attorney's fees"
from the trial court.8 The petitioner "did
not raise the issue of fees at all during either of
his hearings before the circuit court" and "did
not raise a request for fees or file any response."9
The Supreme Court found, because the petitioner "did
not present either issue to the circuit court,"
that "there is no ruling to address on appeal,
and consequently affirm[ed] the circuit court on both
assignments."10 Thus, by example,
Hawkins demonstrates that a petitioner must
submit a request to recover fees and costs to a trial
court in order to be awarded them.
Next,
a trial court must find that the petitioner's rights
and privileges conferred by FOIA were denied in violation
of law. In Suffolk City School Board v. Wahlstrom,
the Supreme Court of Virginia considered whether it
was a violation to prohibit a member of the public
from attending a public meeting in person during the
COVID-19 pandemic when there was sufficient physical
space in the meeting room to allow attendance while
following social distancing procedures that were in
effect at the time. The Supreme Court unanimously
upheld the circuit court's determination that it was
a violation by stating that "it is clear that
the trial court did not err in concluding that the
[Suffolk City School] Board violated [FOIA] by denying
Wahlstrom 'free entry' into the meeting room . . ."11
The Supreme Court further stated "it was the
fact that, prior to the meeting, the [Suffolk City
School] Board decided to deny the public free entry
to the meeting room."12 Thus, the
Supreme Court concluded that "the [Suffolk City
School] Board violated [FOIA]."13
In
order to award a petitioner costs and reasonable fees
for expert witnesses and attorney fees, a trial court
must also determine whether the petitioner substantially
prevailed on the merits of the case, and if so, whether
special circumstances would make an award of attorney
fees unjust. In Wahlstrom, the Supreme Court
found that "[subsection D of] § 2.2-3713
[of the Code of Virginia] does not require a [FOIA]
petitioner to prevail on all aspects of his or her
claim to be entitled to fees and costs, but only to
'substantially prevail on the merits of the case[.]'”14
The Supreme Court explained further that "to
substantially prevail, a litigant need not have achieved
all of his or her objectives in the litigation, but
rather, must have been successful regarding the main
object of his or her suit."15 The
Supreme Court ultimately ruled that "the trial
court did not err in concluding that Wahlstrom 'substantially
prevail[ed] on the merits of the case' for the purpose
of an award of attorney fees and costs pursuant to
[subsection D of] § 2.2-3713."16
The Supreme Court affirmed the judgment of the trial
court and remanded "for the limited purpose of
having the trial court determine the amount of attorney
fees and costs that Wahlstrom reasonably incurred
on appeal."17 The Supreme Court recognized
that "[s]he has requested such fees and costs
and, as noted above, is entitled to such an award
pursuant to [subsection D of] § 2.2-3713."18
Even
though in Wahlstrom the Supreme Court unanimously
upheld the trial court's award of attorney fees and
costs to the prevailing party, the Supreme Court also
conceded that FOIA does not always entitle a prevailing
party to be awarded attorney fees and costs. The Supreme
Court recognized that the plain language of subsection
D of § 2.2-3713 of the Code of Virginia provides
that "special circumstances" could make
the award of attorney fees and costs unjust in some
cases.19 The Supreme Court noted that "a
[FOIA] plaintiff prevailing on the merits of the case
will justify an award in the ordinary case."20
However, the Supreme Court concluded that "a
[FOIA] plaintiff who substantially prevails on the
merits of the case is entitled to an award of attorney
fees and costs unless unusual, uncommon, noteworthy,
or extraordinary circumstances make such an award
unjust."21 In Harmon v. Ewing,
the Supreme Court's judgment affirmed the trial court's
ruling in part, reversed in part, and remanded the
case back to circuit court stating that "the
determination of 'special circumstances' lies in the
sound discretion of the trial court."22
In
White Dog Publ., Inc. v. Culpeper County Bd. of
Supervisors, the Supreme Court of Virginia concluded
that the trial court "erred in finding the Board
[of Supervisors] did not violate FOIA" when it
closed its meeting for private discussions with the
architect to discuss strategy in relation to a policy
dispute that the Board [of Supervisors] was having
with the School Board over the new high school.23
The Supreme Court found that the Board of Supervisors'
(the Board) purpose in closing its meeting "was
not one that is allowed under the exemption contained
in [subdivision A 30 of] § 2.2-3711 [of the Code
of Virginia]."24 The Supreme Court
acknowledged that the petitioners "'substantially
prevail[ed] on the merits of the case.'"25
Subsequently, the Supreme Court reviewed the special
circumstances asserted by the Board in its argument
against an award of attorney fees and reasonable costs
to the petitioners. The Board argued that:
1. The Board's procedure to close a meeting had
been followed for four years and no one had previously
complained;
2. The violation was not willful and knowing;
3. The general district court's ruling in favor
of the Board on all issues and the lack of precedent
on the precise issues presented demonstrated that
reasonable attorneys and judges can disagree on
the statutory requirements for a motion to close
a public meeting;
4. The extensive research on FOIA and its requirements
conducted by Maddox; and
5. The closed meeting motion did not release the
Board from its other obligations under FOIA as
shown by the nonpublic agenda the Board followed
during the closed meeting.26
The
Supreme Court concluded none of those grounds contained
in the record "constituted 'special circumstances'
sufficient to make an award of" attorney fees
and reasonable costs "unjust in the circumstances
in this case."27 Hence, the Supreme
Court found that the circuit court erred in finding
special circumstances that made an award of attorney
fees and reasonable costs "unjust under [subsection
D of] § 2.2-3713 [of the Code of Virginia]."28
The Supreme Court reversed "the judgement of
the circuit court" and remanded the case "for
issuance of a writ of mandamus and the determination
of an award" of attorney fees and reasonable
cost to the petitioners.29
As
discussed above, for a petitioner to obtain an award
for reimbursement of fees and costs, a petitioner
must submit a plea for such fees and costs to the
trial court for ruling. For a pro se petitioner
or a petitioner represented by legal counsel to be
awarded costs and fees at the trial court level, a
trial court must first find that a petitioner's rights
and privileges conferred by FOIA were denied in violation
of law and secondly, a trial court must determine
that a petitioner substantially prevailed on the merits
of his case. The trial court is also required to evaluate
whether there are special circumstance that would
make the awarding of attorney fees and costs to a
petitioner unjust. In matters involving a pro
se petitioner, the trial court would have to
determine whether a pro se petitioner is
entitled to reimbursement for attorney fees and costs.
It seems doubtful that a trial court would award a
pro se petitioner reimbursement for attorney
fees because no such fees would likely have been incurred
by a pro se petitioner during the trial phase,
and therefore an argument could be made that such
an award is unjust. However, the plain language of
subsection D of § 2.2-3713 of the Code of Virginia
provides that a trial court may award to a prevailing
pro se petitioner for other incurred litigation
costs and fees.
Considering
an award of attorney fees and costs on appeal, first
note that FOIA itself does not distinguish between
trial and appeal in the statutory language of subsection
D of § 2.2-3713 of the Code of Virginia. In Suffolk
City School Board v. Wahlstrom, the Supreme Court
stated that "[m]ost of the issues raised by the
parties on appeal involve the meaning of specific
provisions of [FOIA], and thus, present questions
of law subject to de novo review in this
[Supreme] Court."30 The Supreme Court
stated that "[t]o the extent that the proper
application of [FOIA's] requirements turns on the
specific facts of the case, we owe deference to the
trial court’s factual findings unless 'they are plainly
wrong or without evidence to support [them].'"31
The Supreme Court further stated that because this
matter comes to us after a trial of the issues and
giving deference to the trial court's factual findings,
we "must view the evidence in the light most
favorable to the prevailing party."32
Thus, if a petitioner prevailed on his or her claim
against a respondent in trial court, the Supreme Court
will state the evidence that pertains to a petitioner's
claim against a respondent in the light most favorable
to the petitioner, granting the petitioner "all
reasonable inferences that flow from such a view of
the evidence."33 Likewise, as it pertains
to a petitioner's claims against a respondent in which
the respondent was the prevailing party based on the
trial court’s conclusion, the Supreme Court will view
that evidence in the light most favorable to the respondent,
granting the respondent "all reasonable inferences
that flow from such a view of that evidence."34
Therefore,
a determination of whether to award attorney fees
to a pro se petitioner or a petitioner represented
by legal counsel at the appellate level would closely
follow the same process and take into account the
same considerations required during the trial court
phase. The appellate court would have to conclude
that a petitioner's rights and privileges were denied
in violation of law, that the petitioner had substantially
prevailed on the merits of his case, and that there
were no special circumstances that would make the
awarding of attorney fees and costs unjust.35
In upholding a trial court's determination to award
reimbursement for attorney fees and costs, an appellate
court could either affirm the amount awarded by the
trial court or could remand the issue back to the
trial court with further directions for the trial
court to make another determination on the actual
amount of attorney fees and costs that the petitioner
reasonably incurred on appeal.36 Otherwise,
an appellate court could reverse the trial court's
ruling and find in favor of the respondent, or if
it finds that the trial court erred, could remand
the matter back to trial court for reconsideration
with additional directives to guide the trial court
in its rehearing of specifically presented issues
or the matter in its entirety.37
In
Harmon v. Ewing, a police department appealed
a judgment rendered by the trial court that ruled
in favor of a petitioner and "ordered the [d]epartment
to produce the identities of individuals arrested
and charged by or on the information of" a specific
police officer "and to produce all records concerning
[the officer] kept pursuant to § 15.2-1722 of
the Code of Virginia, including personnel records."38
The trial court also "awarded costs and fees
in the amount of $5,206" to the petitioner.39
The Supreme Court of Virginia affirmed the trial court's
ruling in part, reversed it in part, and remanded
the case back for reconsideration.40 The
high court reversed the trial court's ruling on the
production of documents from the officer's personnel
file and information regarding individuals for which
the officer was not the arresting officer.41
However, the Supreme Court affirmed the trial court's
ruling with regard to the identities of individuals
arrested by the officer.42 The Supreme
Court stated that "the determination of 'special
circumstances' lies in the sound discretion of the
trial court."43 Therefore, the Supreme
Court remanded the matter "in light of the several
holdings in favor of the [d]epartment on this appeal"
and directed the trial court to "reconsider whether
to award attorneys' fees and, if so, the appropriate
quantum."44
Question
2: In general, if a petitioner files a FOIA case as
a pro se litigant and later hires an attorney,
under what circumstances would a petitioner be entitled
to reimbursement of attorney fees?
Above, we discussed the statutory provisions and legal
precedence in which a petitioner becomes eligible
for reimbursement of attorney fees and costs in a
FOIA case. The requirements for a petitioner to become
eligible to receive attorney fees and costs in this
second question would be the same as the circumstances
presented in the first instance. In accordance with
subsection D of § 2.2-3713 of the Code of Virginia,
a petitioner would be required to enter a plea "to
recover reasonable costs, including costs and reasonable
fees for expert witnesses, and attorney fees from
the public body."45 A trial court
must find that a petitioner's rights and privileges
conferred by FOIA were denied in violation of law.46
Next, the trial court must also determine that a petitioner
substantially prevailed on the merits of his case.47
Then, it is within the trial court's "sound discretion"
to decide whether there were any special circumstances
that would make an award for reimbursement of attorney
fees and costs unjust.48 Finally, if no
special circumstances were found that would make an
award for reimbursement of attorney fees and costs
unjust, the trial court would have to determine the
amount of attorney fees and costs that were incurred
by a petitioner in the litigation proceedings and
award a reimbursement amount accordingly.49
Thank
you for contacting this office. We hope that this
opinion is of assistance.
Sincerely,
Joseph
Underwood
Senior
Attorney
Alan
Gernhardt
Executive Director
1"Pro se" Latin means
"for himself; in his own behalf; in person",
definition from http://www.thelawdictionary.org (featuring
Black's Law Dictionary, 2nd Ed.)(last accessed on
November 27, 2023).
2Thomas v. University of Virginia Board
of Visitors, Richmond General District Court,
GV22015156-00.
3Freedom of Information Advisory Opinion
22 (2004).
4Hawkins v. Town of South Hill,
301 Va. 416, 433, 878 S.E.2d 408 (2022), citing Va.
Sup. Ct. R. 5:25.
5Id. at 433 citing Scialdone
v. Commonwealth, 279 Va. 422, 427, 689 S.E.2d
716 (2010).
6Id. at 434 citing Scialdone
(alteration in original) (quoting Riverside Hosp.,
Inc. v. Johnson, 272 Va. 518, 526, 636 S.E.2d
416 (2006)).
7Id. at 434.
8Id. at 434.
9Id. at 434.
10Id. at 434.
11Suffolk City Sch. Bd. v. Walhstrom,
886 S.E.2d 244, 255 (2023), 2023 Va. LEXIS 19**, 2023
WL 3103622.
12Id. at 255.
13Id. at 255.
14Id. at 259.
15Id. at 259, referencing See
Cole v. Board of Supervisors, 298 Va. 625, 644,
842 S.E. 2d 389 (2020); Hill v. Fairfax Cnty.
Sch. Bd., 284 Va. 306, 314-15, 727 S.E.2d 75
(2012).
16Id. at 259.
17Id. at 264 (citing footnote
21).
18Id.
19Id. at 260.
20Id. at 260 (citing footnote
15).
21Id.
22Harmon v. Ewing, 2013 Va. LEXIS
14, 285 Va. 335, 339, 745 S.E.2d 415, 2013 WL 475863
23White Dog Publ., Inc. v. Culpeper
County Bd. of Supervisors, 272 Va. 377, 387,
634 S.E.2d 334, 2006 Va. LEXIS 81
24Id.
25Id. at 388.
26Id.
27Id.
28Id. at 388-89
29Id. at 389.
30Hawkins at 253 (citing Transparent
GMU v. George Mason Univ., 298 Va. 222, 237 (2019).
31Id. at 253 (citing American
Tradition Inst. v. Rector & Visitors of the Univ.
of Va., 287 Va. 330, 338, 756 S.E.2d 435 (2014),
and Grayson v. Westwood Bldgs. L.P., 300
Va. 25, 58, 859 S.E.2d 651 (2021) (quoting Va. Code
§ 8.01-680).
32Id. at 253 (citing footnote
1, referencing American Tradition Inst. v. Rector
& Visitors of the Univ. of Va., 287 Va. 330,
338-39, 756 S.E.2d 435 (2014)).
33Id. at 253 (citing footnote
1).
34Id.
35See Suffolk City Sch. Bd. v. Walhstrom.
36See Suffolk City Sch. Bd. v. Walhstrom,
and White Dog Publ., Inc. v. Culpeper County Bd.
of Supervisors.
37See White Dog Publ., Inc. v. Culpeper
County Bd. of Supervisors.
38Harmon v. Ewing, 285 VA. 335,
336, 745 S.E.2d 415 (2013), 2013 Va. LEXIS 14***,
2013 WL 475863.
39Id. at 336.
40See id. at 335.
41See id. at 337.
42See id. at 338.
43Id. at 339.
44Id.
45See Hawkins v. Town of South Hill.
46See Suffolk City Sch. Bd. v. Walhstrom,
and White Dog Publ., Inc. v. Culpeper County Bd. of
Supervisors.
47See Suffolk City Sch. Bd. v. Walhstrom,
and White Dog Publ., Inc. v. Culpeper County Bd. of
Supervisors.
48See Harmon at 339.
49See Suffolk City Sch. Bd. v. Walhstrom,
and White Dog Publ., Inc. v. Culpeper County Bd.
of Supervisors.
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