Harrison Co. Dev. Comm'n v. Kinney
| Docket Number: | 2004-CA-00901-COA | |
| Oral Argument: | 11-29-2005 | |
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| Court of Appeals: |
Opinion Link Opinion Date: 01-17-2006 Opinion Author: KING, C.J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Public records request - Personnel file - Presumption of good faith - Section 25-61-7 (1) - Attorney’s fees - Section 25-61-15 - Protective order Judge(s) Concurring: Lee and Myers, P.JJ., Irving, Chandler, Griffis and Barnes, JJ. Non Participating Judge(s): Ishee and Roberts, JJ. Procedural History: Bench Trial Nature of the Case: CIVIL - OTHER |
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| Trial Court: |
Date of Trial Judgment: 02-25-2004 Appealed from: Harrison County Chancery Court Judge: Jim Persons Disposition: TRIAL COURT ORDERED COUNTY DEVELOPMENT COMMISSION TO DISCLOSE DOCUMENTS CONCERNING ITS RELATIONSHIP WITH PRIVATE CORPORATION AND TO PAY $100 CIVIL PENALTY AND ATTORNEY’S FEES Case Number: 00-02251 |
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| Party Name: | Attorney Name: | |||
| Appellant: | HARRISON COUNTY DEVELOPMENT
COMMISSION |
WALTER JAMES WHITE, HENRY ALLEN |
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| Appellee: | HENRY W. KINNEY | REILLY MORSE |
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| Topic: | Public records request - Personnel file - Presumption of good faith - Section 25-61-7 (1) - Attorney’s fees - Section 25-61-15 - Protective order |
| Summary of the Facts: | The Harrison County Development Commission and F.E.B. Distributing Company, Inc. filed a complaint for declaratory judgment against Henry Kinney, asking the court to find that HCDC and FEB had complied with all of Kinney’s public records requests. The chancellor found that HCDC willfully and knowingly denied Kinney access to certain records not exempt under the Public Records Act. HCDC was then ordered to produce those records not specifically exempt, and pay a $100 civil penalty, as well as $8,160 in attorney’s fees. After denying HCDC’s motion for reconsideration, the chancellor awarded Kinney an additional $2,205 in attorney’s fees. After providing Kinney with most of the records ordered by the chancellor, HCDC appeals. |
| Summary of Opinion Analysis: | Issue 1: Personnel file The chancellor ordered HCDC to release the gross salary and accrued leave time of HCDC’s Executive Director. While acknowledging that the director’s gross salary and accrued leave time are indeed subject to disclosure, HCDC argues that this information should not be released to Kinney since he did not specifically ask for it pursuant to HCDC’s public records policy. Although Kinney did not specifically ask for the director’s gross salary and accrued leave time, he did ask for the director’s “personnel file.” A general request for a personnel file would include a request for gross salary information, as well as accrued leave time. When a public record is held to be exempt, but also contains material which is not exempt, the public body has a duty to separate the exempt material and make the nonexempt material available for examination and/or copying. Issue 2: Presumption of good faith HCDC argues that it should be entitled to a presumption of good faith as a matter of public policy because of its efforts in trying to accommodate Kinney’s requests. Section 25-61-7 (1) authorizes a public body to establish and collect fees reasonably calculated to reimburse the body for the actual cost of searching, reviewing, and/or duplicating records. However, these costs shall not exceed actual costs, and shall be collected by the body in advance of complying with the request. HCDC’s public records policy does not impose a fee for gathering and/or searching for documents. A change in the policy would require action by HCDC’s commissioners. The director unilaterally required Kinney to advance the $65 per hour staff fee to search for records when this fee was not a part of HCDC’s public records policy. HCDC maintains that the director was adhering to the advice of HCDC’s counsel in imposing the fee and therefore should not be penalized. However, an attorney’s advice contrary to the plain language of a statute does not necessarily exempt a client from sanctions. Thus, there was no error in the chancellor imposing a civil penalty. When there is no legislative authorization for attorney’s fees, no fees should be imposed. Section 25-61-15 of the Public Records Act states that a person who willfully and knowingly denies access of public records to any person shall be liable for a civil penalty as well as all “reasonable expenses incurred” by such person bringing the lawsuit. “Reasonable expenses incurred” includes an award of attorneys’ fees. Kinney has requested an award of additional attorney’s fees incurred in defending this action on appeal. An award of attorney’s fees is appropriate for this appeal. Issue 3: Protective order HCDC argues that a protective order is needed to maintain the confidentiality of its potential business partners contained in HCDC’s receipts and reimbursement claims. When asked by the chancellor to have any confidential documents reviewed in camera under seal, HCDC failed to include these receipts in those documents. Since the information HCDC claims to be confidential appears to have been already given to Kinney, a request for a protective order is moot. |
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