Munson Earth Moving Corp. v. City of S. Burlington, No. S0805-08 CnC (Toor, J., Oct. 18, 2010)

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                                               VERMONT SUPERIOR COURT
                                                  CHITTENDEN UNIT
                                                   CIVIL DIVISION

                                                                         │
MUNSON EARTH MOVING CORP.                                                │
 Plaintiff                                                               │
                                                                         │
 v.                                                                      │      Docket No. S0805-08 CnC
                                                                         │
CITY OF SOUTH BURLINGTON                                                 │
 Defendant                                                               │
                                                                         │


                                        RULING ON PETITION FOR FEES

           This is a public records act case in which judgment was previously entered.

Various rulings of the court awarded Plaintiff Munson portions of the requested

documents. Munson now requests attorney’s fees.

           Under the Public Records Act, “[t]he court may assess against the public agency

reasonable attorney 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). In

other types of cases, “substantially prevailed” is determined by looking to which side

“achieved a comparative victory on the issues actually litigated or the greater award

proportionally to what was actually sought.” Burton v. Jeremiah Beach Parker

Restoration and Const. Management, 2010 VT 55, ¶ 8 (internal quotations omitted). As

it is used in the Public Records Act, however, for reasons that are not clear, the Vermont

Supreme Court has held that it has a different meaning.

           The Court has held that analyzing the question in these cases is a two-step

process, requiring proof of both “eligibility” and “entitlement.” The former requires proof

that (1) “legal action could reasonably be regarded as necessary to obtain the requested
documents,” and (2) “the litigation had a substantial causative effect on the release of the

documents.” Burlington Free Press v. University of Vermont, 172 Vt. 303, 305 (2001).

The second step is less defined. The Court has stated that it is a discretionary analysis that

may include, but is not limited to, consideration of factors used in the federal courts with

regard to the analogous federal statute, the Freedom of Information Act (FOIA). 5 U.S.C.

§ 552(a)(4)(E). Those factors 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.”

Burlington Free Press, 172 Vt. at 306.

                                  1. Reasonable Necessity

       In this case, Munson argues that it made record requests in January of 2008, was

given access to the City’s paper files in February, but was repeatedly unsuccessful in

obtaining electronic records. Having received none by June, Munson filed this lawsuit.

The City responds that it produced about 10,000 pages of its own paper records within

two weeks of the initial January request, including copies of many electronic records that

had been placed in the files. The City asserts that collecting the email records was time-

consuming because of the many sources for them and the many parties copied on various

documents. Thus, counsel for the City asserts, he spent a great deal of time working on

the request in the months before the lawsuit was filed. Nonetheless, the record shows no

written communication from the City to Munson assuring Munson that the request was

diligently being worked on. It appears that the last discussion between counsel occurred

in April. The delay of five months from the time of the request certainly was enough to




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lead Munson to feel that litigation was necessary. Thus, the court finds that Munson has

satisfied one of the requirements for obtaining fees.

                                    2. Causative Effect

       The next question is whether the litigation “had a substantial causative effect on

the release of the documents.” Burlington Free Press, 172 Vt. at 305. Although Munson

argues that document production on short order after the filing of a lawsuit can be an

indication that there is some causal relationship between the two, that alone is not

sufficient to prove the point. See, e.g., Ellis v. U.S., 941 F. Supp. 1068, 1076 (D. Utah

1996)(“the mere filing of a lawsuit and the subsequent release of records does not

establish that the plaintiff has substantially prevailed”); Maynard v. CIA, 986 F.2d 547,

568 (1st Cir. 1993)(“ there is no showing that the suit was the cause of the delivery of this

document”); Vermont Low Income Advocacy Council, Inc. v. Usery, 546 F.2d 509, 513

(2d Cir. 1976)(Congress did not intend under FOIA that “a plaintiff was entitled to an

award of such fees whenever a suit was brought and the requested information (or the

bulk of it) was thereafter furnished”), abrogated on other grounds, Union of

Needletrades, Indus. and Textile Employees AFL-CIO, CLC v. U.S. I.N.S., 336 F.3d 200,

203 (2nd Cir. 2003).

       Counsel for the City asserts in his affidavit that he told Munson in April, before

the case was filed, that “a suit by [Munson] would neither advance nor retard the City’s

efforts.” Affidavit of Robert Fletcher, ¶ 3 (filed Feb. 16, 2010). That may be what he said,

but that is not determinative. The question is whether the documents would likely have

been released or withheld without the lawsuit.




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       The City avers that it was working on the request before the lawsuit was filed, and

had not denied the request. Munson does not dispute this. Moreover, the City points out

that it had already released thousands of pages of paper records, so there was no reason

for Munson to assume that the request for electronic records would result in a denial.

While it took the City a long time to produce the electronic records, that does not mean

the records would not have been produced but for the suit. As another court has said, the

point is not whether the lawsuit expedited the disclosure, but whether it made a difference

in whether the records were produced at all. Loglia v. IRS, 1997 WL 214869, * 4

(S.D.N.Y. 1997). See also Ellis, 941 F. Supp. at 1076 (“a plaintiff may not be eligible for

a fee award where the release of documents was due to a routine, but delayed,

administrative processing”). With regard to the vast majority of records that were

ultimately turned over by the City without a court order, Munson has not made such a

showing. It is only with respect to the records that the City withheld, and ultimately was

ordered to turn over, that the lawsuit can be said to have caused the disclosures. Thus,

any fee award should be limited to the dispute over those records ultimately released in

response to court order.

                            3. Entitlement: The FOIA Factors

       With regard to the documents that did require a court order, the court will review

the FOIA factors mentioned above. First, the court sees no “public benefit derived by the

lawsuit,” as this is principally a private party’s dispute with the City over its fees.

Although Munson argues that there is public benefit merely to “vindicating” the Public

Records Act, that would mean that there is a public benefit in every case. That, in turn,

would make the requirement to establish a public benefit meaningless. Nor is the court




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persuaded that the disclosure of the records has uncovered “serious mismanagement by

City personnel of an important public works project.” Fee Petition at 12. At this point, the

court has no way of drawing any such conclusion.

       The second FOIA factor has to do with commercial benefit. Presumably the entire

point of the request was to get Munson a “commercial benefit,” that is, proof that it

should recover in its other lawsuit over fees. It was not for some greater public interest

that Munson initiated this litigation. By the same token, the “nature of the requesting

party’s interest in the documents” was for its own private benefit, not any public benefit.

       The fourth FOIA factor is whether the agency had “a reasonable basis for

withholding the documents.” The court found a number of the claims of privilege to be

entirely unjustified in this case, and thus concludes that as to the withheld documents that

were later ordered disclosed, the City did not have a reasonable basis for withholding the

documents.

       Thus, of the four FOIA factors, three cut against Munson and one weighs in its

favor. On balance, the court concludes that a fee award is not justified here.

                                           Order

       The fee petition is denied. However, the court does award Munson its costs in the

amount of $291.56.


Dated at Burlington, Vermont this 14th day of October, 2010.



                                              _____________________________
                                              Helen M. Toor
                                              Superior Court Judge




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