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08/31/87 INDIANA CIVIL LIBERTIES UNION v. INDIANA

Filed: August 31, 1987.

INDIANA CIVIL LIBERTIES UNION, APPELLANT (PLAINTIFF BELOW),
v.
INDIANA GENERAL ASSEMBLY, APPELLEE (DEFENDANT BELOW)



APPEAL FROM THE MARION SUPERIOR COURT, The Honorable Michael T. Dugan, II, Judge, Cause No. S586-0557.

Young, J., Conover, J. and Shields, P.j., concur.

Author: Young

YOUNG, J.

On April 23, 1986, the Indiana Civil Liberties Union filed an action seeking to compel the Indiana General Assembly to release tape recordings of floor debates which occurred in the Indiana House of Representatives. The ICLU also sought to recover attorney fees and costs as provided by Indiana's Public Records Act. Although the trial court ordered the release of the tape recordings, it denied the request for attorney fees and costs stating:

In that this cause is one of first impression in Indiana and that the denial of access by the Defendant was not made in bad faith, the Plaintiff's request for attorney's fees is denied.

The ICLU appeals the denial asserting that IND. CODE 5-14-3-9(f) does not grant the trial court the discretion to deny attorney fees if the plaintiff substantially prevails in the action and shows that the denial of access was knowing and intentional. The ICLU argues that a denial of attorney fees under these circumstances would defeat the policies outlined by the Indiana Act. We disagree and affirm the trial court.

The Indiana Act provides:

In any action filed under this section, a court may award reasonable attorney fees, court costs, and other reasonable expenses of litigation to the prevailing party if:

(1) the plaintiff substantially prevails and the court finds the defendant's violation was knowing or intentional; or

(2) the defendant substantially prevails and the court finds the action was frivolous or vexatious.

IND. CODE 5-14-3-9(f) (emphasis added). Generally, the use of the word "may" expresses an intent to vest the trial court with the discretion to determine whether it will order a certain result. The ICLU asserts, however, that the work "may" can express a mandatory action if the use of discretion would defeat the object of the statutory provision. See Noble v. City of Warsaw (1973), 156 Ind. App. 618, 297 N.E.2d 916. The ICLU asserts that if the word "may" in IND. CODE 5-14-3-9(f) is construed to grant discretion to the trial court, the policy of the Indiana Act will be defeated. Therefore, the ICLU concludes that the legislature must have intended the award of attorney fees to be mandatory when the plaintiff substantially prevails and shows that the agency in question knowingly and intentionally denied access to the records.

The Indiana Act states:

The fundamental philosophy of the American constitutional form of representative government is that government is the servant of the people and not their master. Accordingly, it is the public policy of the state that all persons are entitled to full and complete information regarding the affairs of government and the official acts of those who represent them as public officials and employees. This chapter shall be liberally construed to implement this policy and place the burden of proof for the nondisclosure of a public record on the public agency that would deny access to the record and not on the person seeking to inspect and copy the record.

IND. CODE 35-14-3-1. The policies of the Indiana Act closely parallel the policies of the Federal Freedom of Information Act. See generally Note, Indiana Opens Public Records: But (b)(6) May Be the Exemption That Swallows the Rule. 17 Ind.L.Rev. 555 (1984). Both the Indiana Act and FOIA provide for the award of attorney fees. Although the provisions are not identical, the similarities are striking.[Footnote 1] Because of the similarities in both the goals and attorney fee provisions of the two Acts, we will turn to federal case law for guidance in interpreting the Indiana Act. See Gumz v. Starke County Farm Bureau Co-op. ...


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