Free press editor Brier Dudley says it’s wrong to sue record requesters for attorneys fees in public records disclosure cases [“Seattle City Attorney Pete Holmes not off hook in public-records debacle” July 29, Opinion]. Holmes filed a counterclaim for attorneys fees in The Seattle Times’ public records lawsuit against the city. Holmes later withdrew his counterclaim, explaining (rationalizing) that the counterclaim was simply an innocuous, routine, standard boilerplate feature common in civil litigation, and he’s just being nice to withdraw it. Dudley and law professor Jonathan Peters, quoted in the column, decry the tactic of government bodies claiming attorneys fees from requesters. They worry about the chilling effect they have and the “hostility to openness” they convey.
It’s worse than that. Counterclaims for attorneys fees are not — should not — be routine. It depends on whether, under the law in any particular case, recovery of attorneys fees is authorized. An attorney signing a claim for attorneys fees when they are plainly not recoverable has violated court rules that require claims to be “warranted by existing law” (CR 11). Washington public records law allows requesters to recover reasonable attorneys fees, but not public bodies (RCW 42.56.550). Holmes, by filing an unwarranted claim for attorneys fees, even though withdrawn, violated court rules and should be sanctioned.
Jerry Cronk, Shoreline, retired attorney