What would happen if you went to the Town/City/County in Virginia where you live and you asked for certain documents, and you were told that the they could not give you the documents that you requested.
- You could do one of several things in response:
- You could walk away and just give up. (Free)
- You could read the FOIA codes for yourself to see if you should get access to those documents. (Free)
- You could contact the Virginia Coalition for Open Government and request they provide you with some guidance. (Free)
- You could contact the Virginia FOIA Advisory Council for an opinion. (Free)
- You could simply contact an attorney to see if legal action is appropriate. (Fees are often charged for that initial contact just to find out if you have a case.)
Let us assume you make the decision to get some research done before you invest any money in attorney fees. You take the steps to contact either #4 or #5 above, giving them ALL of the information you can on your situation. Either one (or both) come back with information that reveals that you do not have the right to access to what you have requested. Now, you at least know what you can or cannot do, and it has cost you no more than a little time.
On the other hand, if #4, #5, or both of them advise you that you do have the right to that information, you may now wish to proceed to an attorney and pursue legal actions to obtain the records that you request.
There is one very good reason to do your homework before you jump into a 'writ of mandamus' seeking a Court order to have your jurisdiction give you the requested information (provided at the
Marion Brechner Citizen Access Project website):
Definition: Attorneys' Fees, Requestors (Public Records)
Capsule:
If
a court finds a public body violated the open records law by denying
the inspection of a record, the requester of the record shall be
entitled to recover "reasonable" attorney's fees from the public body.
The fees are to be awarded if the requester "substantially" prevails
unless special circumstances would make an award "unjust." A court may,
among other things, consider 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. VA. CODE ANN. §
2-3713.D (2007).
In other words, if the jurisdiction has violated FOIA, you have the right to have the jurisdiction pay your legal fees. The Court does have the right to evaluate those fees and, if you have gotten a bit exorbinate, hiring Benjamin A. Civilette, whose rate is $1000.00 per hour, I think you can count on the Court reducing the awarded amount substantially.
By using the Virginia Coalition for Open Government website's Opinions section, you can find out if there are any cases similar that the jurisdiction could be basing their argument on, thus finding out if there are any cases where the jurisdiction was "substantially supported" in a similar case.
Doing these things will certainly not guarantee that you get your legal costs reimbursed, but you can increase the likelihood of that happening. A little bit of homework could save you a lot of money!