FOI Advisory Council Opinion AO-01-24

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.