Burlington Free Press v. Univ. of Vermont

Burlington Free Press v. Univ. of Vermont (2000-260); 172 Vt. 303; 779 A.2d 60

[Filed 29-Jun-2001]


       NOTICE:  This opinion is subject to motions for reargument under
  V.R.A.P. 40 as well as formal  revision before publication in the Vermont
  Reports.  Readers are requested to notify the Reporter of  Decisions,
  Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
  any  errors in order that corrections may be made before this opinion goes
  to press.

                                No. 2000-260


The Burlington Free Press	                 Supreme Court

                                                 On Appeal from
     v.	                                         Washington Superior Court


University of Vermont	                         March Term, 2001


Alden T. Bryan, J.

Philip H. White of Wilson & White, P.C., Montpelier, for Plaintiff-Appellant.

Jeffrey J. Nolan of Dinse, Knapp & McAndrew, P.C., Burlington, for 
  Defendant-Appellee.


PRESENT:  Amestoy, C.J., Dooley, Morse, Johnson and Skoglund, JJ.


       SKOGLUND, J.   The Burlington Free Press (BFP) appeals the superior
  court's denial of its  request for approximately $8000 in expenses and
  attorney's fees incurred in its lawsuit seeking the  release of documents
  related to hazing incidents that took place at the University of Vermont 
  (UVM).  We affirm based on our conclusion that BFP has failed to
  demonstrate that the court abused  its discretion in declining to award
  attorney's fees in this case.

       Beginning in the fall of 1999, UVM officials became aware of hazing on
  its hockey team  and took certain steps to deal with it.  In response to an
  October 28 written complaint submitted by  an attorney representing a
  member of the team, UVM initiated a formal investigation to be conducted 
  by a local law firm.  On November 11, BFP asked UVM to release certain
  documents that would  reveal both the nature of the hazing allegations and
  UVM's response to those allegations.  

 

  UVM refused, and on December 7, BFP filed an action in the superior court
  seeking an injunction  that would require UVM to release the documents
  pursuant to the Public Records Act.  See 1 V.S.A.  §§ 315-320.

       Following a December 10 hearing, the superior court reviewed the
  pertinent documents in  camera and issued a December 16 decision on BFP's
  request for a preliminary injunction.  Based on  its in camera review, the
  court ordered disclosure of documents that merely detailed UVM's response 
  to the formal complaint but that did not reveal any identifying information
  about the students that  might violate the Family Educational Rights and
  Privacy Act of 1974 (FERPA), 20 U.S.C. § 1232g.   The court also noted that
  nothing new would be revealed by disclosing the details of the hockey 
  player's written complaint because they had already been disclosed in the
  federal lawsuit and widely  reported in the media.  The court concluded
  that, by filing the federal court action, the complaining  hockey player
  had abandoned any protection of his identity to which he might have been
  entitled  under FERPA.

       The court declined, however, to order disclosure of the transcripts
  and notes of statements  made by members of the hockey team to UVM
  investigators.  In the court's view, those documents  were student records
  protected by FERPA.  The court ordered the release of other documents 
  requested by BFP, but required that individual names be redacted to protect
  the students' privacy.   Neither party sought to appeal the court's ruling,
  and on January 4, 2000, UVM complied with the  court's orders.

       After the release of the documents, BFP sought to recover
  approximately $8000 in expenses  and attorney's fees incurred in its
  lawsuit against UVM.  On May 10, 2000, the court issued a ruling  denying
  the request in its entirety.  In so ruling, the court stated as follows:

 

         Finally, there is the question of attorney's fees.  The
    briefing  on this issue is well done and interesting.  In the end,
    however, it  comes down to the court's discretion.  True, the
    desired results  required the litigation, otherwise they would not
    have been achieved.   Yet the opposition was not without some
    merit.  An opposition to  production was probably advisable, at
    least to avoid the appearance of  irresponsible disclosure, which
    might have led to certain legally or  financially adverse
    consequences.  I conclude that in the end the just  result is to
    put this litigation down to the cost of doing business, and  there
    should be no award of attorney's fees in this case.

  (Citation omitted).  BFP appeals this ruling, arguing that the superior
  court abused its discretion by  failing to give adequate consideration to
  the policies behind the Public Records Act and the relevant  criteria, as
  reflected by federal court decisions addressing the award of attorney's
  fees under the  Freedom of Information Act (FOIA), 5 U.S.C. § 552(a)(4)(E).

       The relevant provision of the Public Records Act provides that:

         The court may assess against the public agency reasonable
    attorney's  fees and other litigation costs reasonably incurred in
    any case under  this section in which the complainant has
    substantially prevailed.

  1 V.S.A. § 319(d).  This provision requires the requesting party to make a
  threshold showing that it  is eligible for attorney's fees because it
  substantially prevailed in its lawsuit seeking the release of  public
  records.  Federal courts construing a nearly identical attorney's fees
  provision in the FOIA  have held that, to establish eligibility, the
  requesting party must prove that legal action could  reasonably be regarded
  as necessary to obtain the requested documents, and that in fact the
  litigation  had a substantial causative effect on the release of the
  documents.  E.g., Chesapeake Bay Found. v.  Dep't of Agric., 11 F.3d 211,
  216 (D.C. Cir. 1993); Abernathy v. I.R.S, 909 F. Supp. 1562, 1567  (N.D.
  Ga. 1995).

 

       Once eligibility is proved, the requesting party still has the burden
  of demonstrating that it is  entitled to the fees.  Chesapeake Bay Found.,
  11 F.3d  at 216 ("Eligibility for fees does not guarantee  entitlement.");
  Abernathy, 909 F. Supp.  at 1567 (award of fees does not automatically
  follow finding  of eligibility; burden is on requesting party to establish
  entitlement).  Among the factors examined by  federal courts in considering
  requests for attorney's fees under the FOIA are (1) the public benefit 
  derived by the lawsuit; (2) the commercial benefit the requesting party
  will receive from release of  the requested documents; (3) the nature of
  the requesting party's interest in the documents; and (4)  whether the
  public agency had a reasonable basis for withholding the documents.  See
  Chesapeake  Bay Found., 11 F.3d  at 216; Abernathy, 909 F. Supp.  at 1568;
  see also Kline v. Fuller, 496 A.2d 325,  330, 332 (Md. Ct. Spec. App. 1985)
  (remanding matter for trial court to consider FOIA factors  before
  determining whether to award attorney's fees under Maryland's Public
  Information Act).

       These four factors were initially proposed as part of the FOIA
  provision on attorney's fees,  but were eliminated before the provision
  became law because they were considered to be  unnecessary and too
  delimiting.  Kline, 496 A.2d at 330-31; see Nationwide Bldg. Maint., Inc.
  v.  Sampson, 559 F.2d 704, 714 (D.C. Cir. 1977) (Congress's express
  intention in removing four factors  from statutory language was to avoid
  limiting court's consideration of other relevant factors; courts  should
  not frustrate that intent by failing to consider other relevant factors). 
  Nevertheless, the federal  courts continue to consider these factors along
  with any other relevant factors in determining  entitlement to attorney's
  fees under the FOIA.  E.g., Detroit Free Press, Inc. v. Dep't of Justice,
  73 F.3d 93, 98 (6th Cir. 1996); Chicago Tribune v. United States Dep't of
  Health & Human Servs., 70 F. Supp. 2d 832, 835 (N.D. Ill. 1998); see also
  Vermont Low Income Advocacy Council, Inc. v.

 

  Usery, 546 F.2d 509, 513 (2d Cir. 1976) (by eliminating four factors from
  statute, Congress did not  intend to preclude courts from considering
  them).

       Section 319(d) of the Vermont Public Records Act does not include any
  specific factors for  the trial court to consider in determining whether a
  party is entitled to attorney's fees.  1 V.S.A.  § 319(d).  We decline to
  expressly adopt the federal factors, but rather acknowledge that they may
  be  considered along with any other relevant factors.  On appeal from the
  trial court's discretionary ruling  on attorney's fees, "a party must show
  that the court failed to exercise its discretion or that its  discretion
  was exercised for reasons clearly untenable or to an extent clearly
  unreasonable."  Animal  Legal Def. Fund, Inc. v. Institutional Animal Care
  & Use Comm., 159 Vt. 133, 140, 616 A.2d 224,  228 (1992).

       In determining whether BFP has met this burden, we first consider
  whether BFP substantially  prevailed in its lawsuit and thus was eligible
  for an award of attorney's fees.  BFP contends that it  plainly overcame
  this threshold hurdle, as evidenced by the superior court's statement that
  "the  desired results required the litigation, otherwise they would not
  have been achieved."  To be sure,  this statement suggests that the instant
  lawsuit was necessary to obtain the requested documents, and  that the
  documents would not have been obtained without the litigation.  But the
  statement is  inconsistent, at least to some extent, with findings made by
  the court in its decision on the merits of  the lawsuit.  As the court
  indicated in its December 16 ruling, much of the information BFP sought 
  concerning the nature of the hazing allegations became available after the
  complaining hockey player  filed a federal lawsuit against UVM.  That
  lawsuit was filed before the court ordered the release of  any documents. 
  Further, the court declined to allow the release of some of the requested
  documents,  including transcripts of interviews of hockey players conducted
  by UVM investigators.  Given these 

 

  facts, it is a close question as to whether BFP substantially prevailed in
  this lawsuit.  Cf. Exner v.  F.B.I., 443 F. Supp. 1349, 1354 (S.D. Cal.
  1978) (requesting party need not receive all requested  documents to
  substantially prevail in FOIA lawsuit).

       Nevertheless, because of the superior court's statement indicating its
  belief that BFP's lawsuit  was necessary for release of the documents, we
  accept BFP's position that it met the threshold test,  thereby requiring us
  to consider whether BFP is entitled to attorney's fees.  As we held above, 
  examination of the four FOIA factors, although potentially helpful, is not
  required when litigants  seek attorney's fees under Vermont's Public
  Records Act.  BFP argues that the trial court abused its  discretion by
  disregarding the fundamental purpose behind the Act's attorney's fee
  provision, and that  the court's failure to apply the FOIA factors
  demonstrates the court's mistaken understanding of that  purpose, which is
  to assure that legal fees are not a financial barrier to those seeking
  legitimate  access to public records.

       With respect to the FOIA factors, BFP asserts that (1) the public
  benefit stemming from its  lawsuit - increased awareness and response to
  hazing within Vermont educational institutions - is  significant; (2) as a
  news organization, its primary purpose in seeking the requested documents
  must  be regarded as public-interest oriented rather than commercially
  oriented, see Tax Analysts v. United  States Dep't of Justice, 965 F.2d 1092, 1096 (D.C. Cir. 1992) (if newspapers had to show absence of 
  commercial interests before they could win attorney's fees in FOIA cases,
  very few, if any, could  prevail); Des Moines Register v. United States
  Dep't of Justice, 563 F. Supp. 82, 84 (D.D.C. 1983)  (when newspaper seeks
  information to produce significant newspaper article, its interest is 
  journalistic rather than commercial); and (3) UVM objected to the release
  of documents critical to  BFP's investigation primarily to avoid
  embarrassment over its handling of the hazing incidents 

 

  rather than to protect the privacy interests of its students.  In BFP's
  view, consideration of these  factors in light of the required liberal
  construction of the Public Records Acts should have compelled  the superior
  court to grant its request for attorney's fees.  See 1 V.S.A. § 315
  (provisions of Public  Records Act "shall be liberally construed with the
  view towards carrying out" its stated public  purposes).

       We do not find these arguments persuasive.  There is little doubt that
  BFP's articles helped  draw public attention to the problem of hazing
  within educational institutions, and that the exposure  to this problem led
  to important changes in some of those institutions with respect to how
  hazing  incidents would be prevented and addressed in the future.  But
  BFP's status as a news organization  does not "render[] an award of
  attorney's fees automatic."  Tax Analysts, 965 F.2d  at 1096 (courts  have
  discretion "whether to award attorney's fees even to news organizations"). 
  News organizations  are not automatically entitled to attorney's fees when
  an award of fees does not serve as an incentive  to encourage either the
  requesting party to seek the release of documents or the public agency to 
  remove resistance to their release.  See id.; cf. Sampson, 559 F.2d  at 711
  (FOIA's attorney's fee  provision was not enacted to reward litigant who
  successfully forced government to disclose  information, but rather to
  remove incentive for administrative resistance to disclosure based on 
  knowledge that many FOIA plaintiffs do not have financial resources to
  engage in expensive  litigation); Kline, 496 A.2d  at 331 (given financial
  resources of requesting party, it seems unlikely  that government agency
  withheld documents to create a financial barrier to their disclosure); but
  see  Chicago Tribune, 70 F. Supp. 2d  at 837 (newspaper stands in shoes of
  innumerable private citizens  and thus should not be denied attorney's fees
  merely because it is a financially strong entity).

 

       More importantly, BFP's cover-up theory is inconsistent with the
  superior court's findings and  conclusions in its decision on BFP's motion
  for a preliminary injunction.  In reaching that decision,  the court noted
  that UVM was "in something of a bind" because FERPA withholds federal
  funding  from any educational institution that permits the release of
  personally identifiable educational student  records without a court order
  or the consent of the student or a parent.  See 1 V.S.A. § 317(c)(11) 
  (term "public record" does not include student records at state educational
  institutions, "provided,  however that such records shall be made available
  upon request under provisions of [FERPA]").   According to the court, any
  inclination on the part of UVM to release documents concerning the  hazing
  allegations would have been chilled by FERPA.  Indeed, the court concluded
  that, absent a  court order requiring the release of the documents, the law
  was "insufficiently clear for UVM to run  the risk of disclosure without
  resistance to [BFP's] lawsuit."

       The court acknowledged that a 1998 amendment to FERPA allowed an
  educational  institution to disclose "the final results of any disciplinary
  proceeding conducted by such institution  against a student who is an
  alleged perpetrator of any crime of violence . . . or a nonforcible sex 
  offense."  20 U.S.C. § 1232g(b)(6)(B).  The court also acknowledged the
  complaining hockey  player's federal lawsuit, filed only days earlier,
  alleged acts that would most likely be encompassed  by the amendment. 
  Nevertheless, the court concluded that "UVM has not, and probably cannot, 
  respond voluntarily" to the request for release of the desired documents.

       BFP has failed to undermine these findings and conclusions, which are
  contrary to BFP's  view that UVM's refusal to release the documents was
  based on its desire to cover-up the hazing  scandal and avoid any public
  scrutiny of the potentially embarrassing and financially costly problem. 
  Cf. Dunwell v. University of Arizona, 657 P.2d 917, 921 (Ariz. Ct. App.
  1982) (affirming trial 

 

  court's award of attorney's fees in public records case in which evidence
  disclosed that university  officials declined to release information in
  attempt to "white wash" improper activities and stonewall  investigation). 
  Indeed, the court's findings and conclusions demonstrate its belief that
  UVM acted  prudently in declining to release many of the requested
  documents unless and until a court order  required that the documents be
  released.  It is principally for this reason that the court declined to 
  award BFP attorney's fees.  See Chesapeake Bay Found., 11 F.3d  at 216
  ("although the test of  entitlement involves a balance of several factors,
  there can be no doubt that a party is not entitled to  fees if the
  Government's legal basis for withholding requested records is correct")
  (citation omitted);  Chicago Tribune, 70 F. Supp. 2d  at 836 (court must
  consider whether government had colorable  basis for withholding documents;
  to find government's conduct reasonable, court need not ultimately 
  determine that withheld information was, in fact, exempt); Tax Analysts,
  965 F.2d  at 1097 (factor  examining reasonableness of refusal to disclose
  is intended to identify those cases in which  government was recalcitrant
  in its opposition to valid request or was otherwise engaged in obdurate 
  behavior).

       In sum, our review of the superior court's orders in this case reveals
  that its denial of BFP's  request for attorney's fees was based on several
  factors, including that (1) UVM's decision not to  release many of the
  documents requested by BFP was not only reasonable, but advisable; (2) an 
  attorney's fee award is not necessary in this case to remedy a situation in
  which the state agency  delayed release of public documents in the hopes
  that the delay and ensuing litigation would create a  financial barrier to
  those seeking the documents; and (3) some of the documents would have been 
  released anyway because of the federal lawsuit filed by the complaining
  hockey player.