Go to: OVERVIEW
(SaveOurCounty) DETAILS
(listener)
PLANNING SCHOOLS ENVIRONMENT EROSION
Report corrections &
broken links to Webmaster Get updates on local issues
IN THE CIRCUIT COURT OF JEFFERSON COUNTY, WEST VIRGINIA
Case
No. 99-C-183
Judge
Thomas W. Steptoe, Jr.
HARPERS
FERRY CONSERVANCY, INC.,
Plaintiff,
v.
JEFFERSON
COUNTY PUBLIC SERVICE DISTRICT,
Defendant.
Came this 30th day of
November, 2000, the Plaintiff by Paul Rosa, and by its counsel, Braun A.
Hamstead, and came the Defendant by Calvin Flemming, its general manager and
John C. Skinner, Jr., Esquire and Peter A. Pentony, Esquire, its attorneys,
upon the scheduling of this matter by the Court for hearing on the issue of the
amount of the copy charge assessed by the Defendant incident to the Plaintiff’s
request for copies of documents in the possession of the Defendant made
pursuant to the West Virginia Freedom of Information Act (“FOIA”), West
Virginia Code § 29B1-3(5).
Whereupon, the Court did proceed
to take evidence on the matter and to hear and consider the arguments of
counsel and did thereafter retire to deliberate and did thereafter return to
Court and upon all the evidence and argument and p1eadings filed herein the
Court does hereby enter its findings and conc1usions.
The Court can sympathize with the
positions of both parties in this matter, recognizing their respective
legitimate needs as set forth in this proceeding. The Court notes that,
although the Defendant Public Service District may not encounter voluminous
FOIA requests each year, still it is an entity that would tend to be document
heavy and a single request may be a consuming enterprise for the District which
is subject to sanctions if it does not comply. The Court recognizes that the
District is generally not geared to be in the duplication of documents
business.
However, the Court’s role in this
matter is governed by statutory law and that law is clear. There is no question
about the right of the Plaintiff to copy certain of the Defendant’s documents,
and the means by which that right is to be exercised is specifically based on a
statute that is legally clear and unambiguous in regard to the payment of
expenses for such copying. Therefore, the Court need. not attempt to further
define the intention of the legislature in. enacting West Virginia Code § 29B-1
3(5). The statute says that the agency may recover “its actual costs in making
reproductions of such records.” Unlike Federal FOIA provisions contained in.
5U.S.C.552(a)(4)(A) which allow an agency to not only recover duplication
costs, but also its direct costs for searching for documents that are
responsive to a FOIA request, as well as its costs for reviewing those records,
the West Virginia statute only allows an agency to recover the actual cost of
reproduction. This Court finds that such actual costs may lawfully include the
labor costs in the ni~i1dtig of the copies themselves.
In the application of this law to
Defendant’s policy, a couple of problems exist. First of all, there is a
question of whether or not the Defendant’s rule or policy in assessing the $.75
per copy charge has ever been lawfully adopted. The Defendant is governed by a
Board of Directors and the Defendant, through its manager, was unable to
substantiate that the rate had ever been approved by the Board of Directors.
Secondly, in order to meet the
requirements of the statute, such FOIA policy must be reasonably calculated so
as to objectively establish the actual costs of such reproduction. Here, no
attempt was made to objectivLy establish the actual costs of the Defendant in
reproducing documents. It mere1y~ has, by its ltlnnnger, chosen a compromise
between the statutory copy fee assessed by the Clerk of the County Commission
for land records ($1.00), which records are not the subject of FOJA requests,
and what it perceives to be the copy charge ~f the ~ Commission it~ FCMA . ~
($.50). Although the Court does not find that such a determination was done in
bad faith, and indeed good fkith was apphrently exercised in this regard, the
agency’s action is nonetheless, as a matter of iack arbitrary.
Therefore, as a matter of law, the
Court finds it must strike the Defendant’s policy of assessing $.75 per copy
for complying with FOIA requests, holding that such is arbitrary and therefore
unlawful in violation of the provisions of West Virginia Code § 29B-1-3(5). And
since the Plaintiff has requested that the Court establish a proper fee as a
part of the relief requested in this proceeding, and the Court finds that the
District should have some lawful rate upon which it can rely, pending the
lawful adoption by the Public Service District of a rule based on actual copy
costs which is legally supportable in a court proceeding such as this, the
Court will set that upper limit for Defendant’s rate for copy charges response
to FOIA requests. Plaintiff urges that the rate should be $.06 per copy, that
being the rate charged currently by Staples, a business supply store which is
also a commercial copy center. However, the Defendant is not regularly engaged
in such business and the Court presumes that its actual costs exceed those at
Staples.
Therefore, until the Defendant
shall have lawfully adopted another rate by rule in conformity with West
Virginia Code § 29B l-3-t5), it is ADJUDGED AND ORDERED that the Defendant
Public Service District cannot charge more than $.25 per page for copies in
response to FOIA requests.
The Court notes the exceptions of
both parties to its adverse rulings.
And upon inquiry of the parties as
to what should further be done in these proceedings, the Plaintiff did suggest
that two issues remained upon its complaint, namely, the question of whether or
not exemptions from FOIA had been improperly claimed by Defendant, and that of
attorney fees. And upon the joint request of the parties that the Court defer the
matter over to provide them with an opportunity o ascertain what remaining
differences they may have, it is hereby, by the Court,
ADJUDGED AND ORDERED that this
matter is continued over until November 30, 2000, at 1:00 p.m. at which time the
parties shall appear without further notice for the purpose of a status
conference in this proceeding.
The Clerk shall enter the
foregoing Order as of the date and day herein above written and provide
attested copies to Braun A. Hamstead, Esquire, Hamstead and Associates, L.C.,
P.O. Box 730, Charles Town, WV 25414 and John C. Skinner, Jr. and Peter A.
Pentony, Esquire, Nichols & Skinner, L.C. P.O. Box 487, Charles Town, WV
25414.
THOMAS
W. STEPTOE, JR., JUDGE
CIRCUIT
COURT OF JEFFERSON COUNTY, WEST VIRGINIA
Submitted
by:
Braun
A. Hamstead, Esquire (#1568)
Counsel
for the Plaintiffs
Hamstead
and Associates, L.C.
P.O.
Box 730
Charles
Town, WV 25414
304-725-1468
Case
No. 99-C-183
Judge
Thomas W. Steptoe, Jr.
HARPERS
FERRY CONSERVANCY, INC.,
Plaintiff,
v.
JEFFERSON
COUNTY PUBLIC SERVICE DISTRICT,
Defendant.
This matter came on for hearing
this 22nd day of February, 2001, upon the papers and proceedings formerly read
and had herein, and upon the setting of this matter for a final hearing on this
date and upon the appearance of the Plaintiff, by Paul Rosa, its Executive
Director and upon the appearance of counsel, Braun A. Hamstead, and upon the
appearance of the Defendant by Peter Pentoney, Esquire, of Nichols and Skinner,
Attorneys-at-law.
Whereupon the parties did advise
the court that a stipulation had been agreed to between the parties involving
certain documentation deemed by the parties to be subject to the freedom of
information request, namely the attorney fee billings to the District from its
attorneys during a certain period included in the underlying FOIA request, and
further that copies of the subject billings had been provided to the Plaintiff
on the previous day, and the parties further represent to the Court that with
such stipulation and production the parties further agreed that all matters in
this proceeding are deemed resolved with the exception of the question of the
award of Plaintiff’s attorney fees and expenses incurred during the prosecution
of this action.
And the Court did therefore accept
the parties’ stipulation and agreement and did proceed to consider the matter
of Plaintiffs request for an award of its attorney fees and expenses, hearing
testimony and argument thereon.
The Defendant urges that only the
issue of the Vaughan index should be the proper subject of consideration in an
award of attorney fees. However, the Court finds that other issues which were a
part of this proceeding arising from the underlying FOJA request are also
specially connected to the FOIA request including the attempt of the Plaintiff
to set a proper copy charge under the Act and therefore the Court finds that
the other issues, which were resolved in this proceeding, fall properly under
an award of attorney fees, including the efforts of Plaintiff to obtain the
award of attorney fees.
And in consideration of the
testimony taken this day, and the itemized billing of Plaintiffs counsel this
day tendered for filing and consideration, the Court did enter the following
findings in accord with Daily Gazette Co. v. West Virginia Dev.
Office, (Gazette II), 198 W. Va. 563, 521 S.E.2d 543 (1999).
1. In
regard to the time and labor involved, the Court finds that as is evidenced by
the attorney fees itemized, this was not an insignificant undertaking, that it
involved some expertise and to some extent the Defendant enjoyed some windfall
through the free labor and expertise of the Plaintiffs Director, Paul Rosa.,
Esquire.
2. In
regard to the novelty of the case and difficulty of the questions, the Court
finds that to some extent it was a case of first impression there being no
specific West Virginia case law on the subject, but the inquiry was guided by
federal case law and the Court essentially makes a neutral finding on this
prong of the test.
3. As
to the issue of skill required, the Court does find that certain competence was
required and was demonstrated in the advocacy of the Plaintiffs case.
4. In
regard to the preclusion of other employment by Plaintiffs counsel, the Court
does not find that the involvement in this case would directly preclude other
legal work by reason of the time demands of this case.
5. The
fee of $150 per hour in attorney fees appears to the Court to be customary in
this community for attorneys of Mr. Hamstead’s experience and $55 per hour
charge for paralegals appears likewise to be reasonable.
6. On
the issue of whether or not the fee is fixed or contingent, in this case, the
fee agreement is a little bit of both because counsel agreed to discount his
fee to the client in the event that the client was not awarded his attorney
fees at the above rate. This discount offered by the attorney to the client
however should not reflect adversely on the ability of counsel to be awarded
reasonable attorney fees based on the customary rate for same.
7. The
Court finds that in regard to the time limitations imposed by the client or the
circumstances of this proceeding, the Court ‘s finding is essentially neutral.
8. The
amount of the bill does not appear to be excessive in light of the work
involved which was not insignificant and in regard to the results obtained, the
Court finds that the Plaintiff did substantially prevail, and in fact,
essentially prevailed on all of the pivotal issues in this proceeding.
9. In
regard to Plaintiff’s counsel’s experience, Mr. Hamstead has practiced law for
some 22 years, he enjoys an excellent reputation in the community and is one of
the more able attorneys practicing before the Court.
10. In regard to the undesirability in the case, the Court notes
that this is a fairly small community and taking a case such as this, in
effect, constitutes taking on “City Hall” because there is involved the question
of challenge to the establishment. In taking such cases, counsel runs the risk
of being tarred with an impression by the community
as a troublemaker and the taking of such a case as this may not make the
involved community leaders happy and may tend to even effect
counsel’s
opportunities in the business community. Accordingly, the Court finds that it
takes certain courage to take on such a case as this.
11. In regard to the issue of the duration of representation of
the client, Mr. Hamstead has represented the Plaintiff previously.
12. The Court further finds that, based on the testimony of Mr.
Hamstead which the Court has no reason to doubt, the overall fee in this case
is not out of line when compared to overall fees which have been approved in
fee shifting Federal Court cases.
The Court therefore concludes that
the attorney fees at the rate of $150 per hour and the total amount of the fees
are reasonable, that certain functions in the providing of legal services
should be billed at the $55 dollar level in the proper division of work in a
law office, and the Court frankly notes that without the involvement of Paul
Rosa, Esquire, to assist, the fees in this case would probably have been in
the$8,000 to $9,000 range. However, Plaintiffs counsel has acknowledged that it
appears that a paralegal billing was inadvertently repeated two times within
the billing, resulting in an over-billing of $11.00 and the bill shall
therefore be reduced by said amount.
And accordingly, it is hereby by
the Court ADJUDGED AND ORDERED that the Plaintiff recover the sum of $5,413.44
in attorney fees and expenses reasonably expended in this action together with
Plaintiffs costs, together with interest on the said sum from the date of this
Order.
The timely objections and
exceptions of the Defendant to the findings made on this day, as well as those
heretofore made are noted and preserved.
And it appearing to the Court that
there is nothing further to be done herein, the Clerk shall retire this case
from the docket and place it among causes ended. The Clerk shall enter the
foregoing as and for the day and date first hereinabove written and shall
forward an attested copy of this Order to Braun A. Hamstead, Esquire, Hamstead
& Associates, L.C., P.O. Box 730, Charles Town, WV 25414 and upon Peter
Pentony, Esquire, Nichols and Skinner, L.C., P.O. Box 487, Charles Town, WV
25414.
3/22/01
Circuit
Court of Jefferson County. West Virginia
Braun
A. Hamstead (WV Bar ID No. 1568)
Counsel
for Petitioner
HAMSTEAD
& ASSOCIATES, L C.
P.O
Box 730
Charles
Town, WV 25414
304-725-1468
The
Clerk is directed to retire this action from the active docket and place it
among causes ended.