Attorney’s-fee-shifting provision of public record act does not authorize award to prevailing self – represented litigant, even if he is an attorney.

Toensing v. AttorneyGeneral Of Vermont, 2019 VT 30 [filed 4/26/2019]

CARROLL, J. In this appeal, we address whether plaintiff, a substantially prevailing self-represented litigant in a case brought under the Vermont Access to Public Records Act (PRA), is entitled to attorney’s fees because he is an attorney. The civil division of the superior court denied plaintiff’s request for attorney’s fees. On appeal, plaintiff argues that he is entitled to attorney’s fees based on the plain language of the relevant PRA provision, the purpose of the Act, and the public policy underlying the Act. We join the vast majority of jurisdictions construing similar acts in concluding that the PRA’s plain language and purpose foreclose granting attorney’s fees to substantially prevailing self-represented litigants, regardless of whether they happen to be attorneys. Accordingly, we affirm the superior court’s decision

1 V.S.A. § 319(d)(1), provides that “the court shall assess against the public agency reasonable attorney’s fees and other litigation costs reasonably incurred in any case under this 3 section in which the complainant has substantially prevailed.”

The key terms in § 319(d)(1) are defined in Black’s Law Dictionary as follows. Attorney’s fee is “[t]he charge to a client for services performed for the client, such as an hourly fee, a flat fee, or a contingent fee.” Black’s Law Dictionary (10th ed. 2014).

We do not find persuasive plaintiff’s contention that public policy favors awarding attorney’s fees to self-represented attorneys in PRA cases. The analysis of many courts in other jurisdictions construing fee provisions in public record laws stems from Kay v. Ehrler, 499 U.S. 432 (1991). In that case, the U.S. Supreme Court held that self-represented attorneys, like all other self-represented litigants, cannot recover attorney’s fees under the Civil Rights Attorney’s Fees Award Act, 42 U.S.C. § 1988, Since Kay, virtually all federal and state courts construing attorney’s fee provisions in public records laws have held that prevailing self-represented attorneys are not entitled to attorney’s fees, based both on the obvious common definitions of the words “attorney” and “fee,” as well as the policy considerations discussed in Kay.

Cases awarding fees to self - represented litigants are distinguishable as involving attorneys attempting to collect fees from former clients or defending against frivolous lawsuits, or Rule 11  similar violations.

The policy underlying the PRA’s fee provision, as other courts have found with respect to their comparable fee provisions, is not to reward successful litigants or punish recalcitrant agencies,6 but rather to encourage objectively well-informed, meritorious claims by awarding mandatory or permissive attorney’s fees, depending on the agencies’ response to the requests, to defray the cost of incurring those fees needed to obtain public records.

In short, we discern no basis, either in the language of § 319(d) itself or the public policy underlying the PRA, to interpret the fee provision to grant attorney’s fees to self-represented attorneys, but not to other self-represented litigants.