DAVID, Justice.
In this case, a plaintiff prevailed on its Access to Public Records Act claim against a public agency and an intervening private party. As required by statute, the trial court awarded the plaintiff attorney's fees.
The fees were awarded against both the public agency and intervening private party, jointly and severally. The private party argued that the Access to Public Records Act does not contemplate the award of attorney's fees against an intervening private party and that only the public agency should be liable for the fees.
We hold that the Access to Public Records Act, in light of the legislature's liberal-construction mandate and the statute's underlying policy, permits the award of attorney's fees against an intervening private party. We further hold that, in this case, the trial court did not abuse its discretion in its apportionment of liability.
The International Union of Painters and Allied Trades (Union) requested to inspect and copy payroll records in the possession of the Metropolitan School District of Warren Township (Township). The payroll records were submitted by ShepCo Commercial Finishes, a subcontractor on a public-works project.
Union claimed that the payroll records were "public records" subject to disclosure under the Access to Public Records Act (APRA).
Pursuant to the APRA, ShepCo made an informal inquiry of the Public Access Counselor (PAC) regarding disclosure of the records. Later, Union requested a formal advisory opinion from the PAC. Both times, the PAC concluded that the records did not need to be disclosed. Specifically, the PAC's formal advisory opinion concluded that the records were "trade secrets" and "confidential financial information" that were exempt from disclosure under the APRA.
In October 2008, Union filed a complaint with the trial court, seeking to compel disclosure under the APRA and naming Township as the sole defendant. Township moved to add ShepCo as a necessary party. The trial court denied that motion, but it granted ShepCo's subsequent motion to intervene.
Union, Township, and ShepCo all moved for summary judgment. In its motion, Union requested attorney's fees pursuant to a provision in the APRA. After a hearing, the trial court entered summary judgment for Union and ordered Township to disclose the records. The trial court later held a separate hearing on Union's request for attorney's fees and awarded $20,234 in attorney's fees against Township and ShepCo, jointly and severally.
Union then filed a motion to amend the final judgment, seeking additional attorney's
ShepCo appealed. The Court of Appeals held that a private entity like ShepCo is not liable for attorney's fees under the APRA and that Township, the public agency, was solely liable. Shepherd Props. Co. v. Int'l Union of Painters, 950 N.E.2d 321, 325 (Ind.Ct.App.2011). On rehearing, the Court of Appeals acknowledged two prior Court of Appeals cases that stated that a private party may be liable for the attorney's fees of a party prevailing in an action to compel disclosure under the APRA. Shepherd Props. Co. v. Int'l Union of Painters & Allied Trades, Dist. Council 91, 955 N.E.2d 208, 209 (Ind. Ct.App.2011). But the Court of Appeals noted that the "APRA does not include language providing for payment of attorney's fees by an intervenor, and will not write into the statute such a provision." Id. (emphasis omitted). We granted transfer.
The issue today is whether an intervening private entity can be held liable for attorney's fees under the APRA.
The public policy underlying the APRA is "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." Ind.Code § 5-14-3-1. Accordingly, the APRA requires a "public agency" to disclose its "public records" upon the request of any person. Id. § 5-14-3-3(a), (b).
Certain types of public records are excepted from the APRA's disclosure requirement, and a public agency may not disclose those records unless specifically required by statute or court order. Id. § 5-14-3-4. A public agency or a member of the public may file an informal inquiry request or a request for a formal advisory opinion with the PAC regarding whether a document is subject to disclosure under the APRA. Id. § 5-14-4-10(5), (6) (2010).
A person denied access to a public record may file an action in court "to compel the public agency to permit the person to inspect and copy the public record." Id. § 5-14-3-9(e). When such an action is filed, the public agency must notify each person who supplied any part of the public record at issue (1) that a request for release of the record was denied and (2) whether the denial was in compliance with an informal inquiry response or formal advisory opinion of the PAC. Id. Any person who supplied part of the disputed record is entitled to "intervene" in litigation resulting from the denial. Id.
If the plaintiff seeking disclosure prevails in the court action, the court "shall" award reasonable attorney's fees, court costs, and expenses if the plaintiff first sought and received an informal inquiry
In this case, the parties agree that Township is a "public agency" as defined in the APRA and that ShepCo is not a "public agency." See id. § 5-14-3-2(m). The parties also agree that ShepCo appeared as an intervenor as permitted by the APRA and that Township is liable for Union's attorney's fees under the APRA. The parties' disagreement rests on whether ShepCo is also liable to Union for its attorney's fees under the APRA.
Third-party liability for attorney's fees under the APRA is an issue of first impression for this Court. However, before its decision in this case, the Court of Appeals had addressed the subject on two prior occasions. See Indianapolis Newspapers v. Indiana State Lottery Comm'n, 739 N.E.2d 144 (Ind.Ct.App.2000), trans. denied; Knightstown Banner, LLC v. Town of Knightstown, 882 N.E.2d 270 (Ind.Ct.App.2008), clarified on reh'g, 889 N.E.2d 317 (Ind.Ct.App.2008). In both opinions, described below, the Court of Appeals stated that third parties may be liable for the attorney's fees of a party prevailing in an action to compel disclosure under the APRA.
In Indianapolis Newspapers, a newspaper requested that the Lottery Commission, a public agency, disclose documents containing information generated by lottery retailers. 739 N.E.2d at 146-47. Upon request by the newspaper, the PAC rendered an advisory opinion, stating that the documents requested must be disclosed under the APRA. Id. at 147.
The retailers sued the Lottery Commission to enjoin disclosure, and the newspaper intervened. Id. at 148. The Lottery Commission then tendered the disputed documents to the court under seal. Id. at 148-49. The trial court found that the Lottery Commission's surrender of the documents obviated the need for it as a party and discharged it from liability, including liability for the newspaper's attorney's fees. Id. at 149-50. The newspaper appealed.
The Court of Appeals found the trial court erred in discharging the Lottery Commission because the Lottery Commission was still potentially liable to the newspaper for attorney's fees under the APRA, depending on the outcome of the litigation. Id. at 155-56. But the Court of Appeals also discussed the retailers' potential liability for attorney's fees. First, the Court of Appeals generally stated that the APRA "does not require that the attorney fees be awarded to or from the public agency when it is clear that the statute contemplates the involvement of third parties." Id. at 156. The Court of Appeals then explained how it would apportion liability for attorney's fees if the newspaper prevailed in the litigation:
Id.
The Court of Appeals also found that because the Lottery Commission took the position that it was not liable for the newspaper's attorney's fees, the newspaper was required to appeal the issue. Id. And because the newspaper prevailed on that issue on appeal, the Court of Appeals determined that the newspaper was entitled to an award of appellate attorney fees under the statute. Id. The Court of Appeals further noted that had the retailers been involved in the appeal, it "might have been appropriate to apportion the [newspaper's] appellate attorney fees between the Lottery and the Retailers." Id. at 156 n. 10.
The Court of Appeals also addressed the issue of whether allowing third-party liability for attorney's fees under the APRA would have a "chilling effect" on seeking intervention. Id. at 156 n. 9. The Court of Appeals determined that in the event a third party did not intervene, that did not mean the third party's interests were without representation: "the public agency would have already independently determined that disclosure was improper prior to denying access, and would be compelled by the statute to litigate the issue if the private person did not intervene." Id.
In a later case, Knightstown Banner, 889 N.E.2d 317, the Court of Appeals again confronted the issue of attorney's fees under the APRA. The underlying lawsuit had already proceeded through two appeals, and on rehearing from the second appeal, the sole issue was whether third parties should share joint and several liability with a town for attorney's fees and costs. 889 N.E.2d at 319.
The case had involved a newspaper's request to inspect an agreement settling a civil rights action against the town. Id. at 319. The town was insured by Government Insurance Exchange (GIE) under a policy that made Government Insurance Managers (GIM) the town's attorney-in-fact with the power to settle claims. Id. at 320 nn. 1-2. After the town and GIE denied the newspaper's requests to inspect the settlement agreement, the newspaper filed an APRA action against the town, GIE, and GIM. Id. at 319-320. The newspaper was ultimately successful, and the trial court determined that the town, GIE, and GIM were jointly and severally liable for the newspaper's attorney's fees, costs, and expenses. Id. at 319.
GIE and GIM argued, among other things, that they should not share liability with the town for the newspaper's attorney's fees because they are not public agencies within the meaning of the APRA. Id. at 320. The Court of Appeals cited Indianapolis Newspapers for the proposition that the APRA "`does not require that the attorney fees be awarded to or from the public agency when it is clear that the statute contemplates the involvement of third parties.'" Id. at 320 (quoting Indianapolis Newspapers, 739 N.E.2d at 156). The Court of Appeals found that GIE and GIM were "necessary parties" to the action because of the close relationship
In its first opinion in this case, the Court of Appeals concluded that ShepCo was not liable for attorney's fees because it was not a "public agency" that denied access to public records. It reasoned, "The attorney's fees provisions of APRA are directed toward public agencies. There is no corollary provision for assessment of attorney's fees against a private party in the event of improper nondisclosure." Shepherd Props. Co., 950 N.E.2d at 325. The Court of Appeals added a footnote acknowledging the existence of Indianapolis Newspapers but did not explain whether that case had an effect on the present one. Id. at 325 n. 6.
The Court of Appeals then granted rehearing to expand upon the issue of "the propriety of an award of attorney's fees under the Indiana Access to Public Records Act." Shepherd Props. Co., 955 N.E.2d at 209. The Court of Appeals recognized the observation from Indianapolis Newspapers that the APRA "`contemplates the involvement of third parties.'" Id. (quoting Indianapolis Newspapers, 739 N.E.2d at 156). It also acknowledged that Knightstown Banner held that "private parties `aligned with the Town of Knightstown' upon having been named as defendants in a lawsuit, should share joint and several liability with the Town for attorney's fees and costs." Id. (quoting Knightstown Banner, 889 N.E.2d at 319). But the Court of Appeals distinguished this case on the grounds that ShepCo was an "intervenor" in the litigation:
Id.
On transfer, ShepCo urges us to adopt the logic of the Court of Appeals, arguing that its status as an intervenor sets it apart from the private-party defendants in Indianapolis Newspapers and Knightstown Banner. ShepCo maintains that this is a "critical distinction" that shields it from liability for attorney's fees under the APRA. Union contends that ShepCo's participation in this action as an intervenor is not distinguishable from the participation of GIE and GIM in Knightstown Banner because ShepCo is likewise aligned with the public agency and actively opposed disclosure of the public records.
We agree with Union that there is no meaningful distinction between ShepCo as an intervenor in the APRA litigation and other private-party defendants who also oppose disclosure. "An intervenor is treated as if it was an original party and has equal standing with the parties." Mercantile Nat'l Bank of Indiana v. Teamsters Union Local # 142 Pension Fund, 668 N.E.2d 1269, 1271 (Ind.Ct.App. 1996). And because we agree with the reasoning behind Indianapolis Newspapers and Knightstown Banner, we hold that it was permissible for the trial court to hold ShepCo jointly and severally liable
As stated earlier, the APRA's purpose is to ensure that the public is provided "full and complete information" about government affairs. I.C. § 5-14-3-1. Importantly, the Act mandates that it "shall be liberally construed to implement this policy." Id.
Indiana public agencies are the gateways for public-record requests. But the APRA expressly permits private entities, like ShepCo, to intervene in any action to compel disclosure. Id. § 5-14-3-9(e). Specifically, whenever an action is filed under the APRA, the "public agency must notify each person who supplied any part of the public record at issue" and "[s]uch persons are entitled to intervene in any litigation." Id. Thus, the legislature, in inserting this language, was aware that any action brought under the APRA could implicate the interests of both public agencies and private entities and that both could actively oppose disclosure of the public records at issue.
The APRA mandates an award of attorney's fees to a plaintiff who "substantially prevails" if that party has first sought an advisory opinion from the public access counselor. Id. § 5-14-3-9(i). That subsection, however, is silent as to who is liable for the attorney's fees. As evidenced by the parties' arguments on the issue, this silence leaves the statute open to at least two different interpretations — that only public agencies are liable for prevailing plaintiffs' attorney's fees or that both public agencies and private parties involved in the litigation may be liable. Because the provision is susceptible to more than one interpretation, it is ambiguous and open to statutory construction. City of North Vernon v. Jennings Nw. Reg'l Utils., 829 N.E.2d 1, 4 (Ind.2005).
In construing the APRA's attorney's fees provision, this Court's primary task is to give effect to the intent of the legislature. Id. We presume that the legislature intended the language used in the statute to be applied logically and consistently with the APRA's underlying policy and goals. See Cooper Indus., LLC v. City of South Bend, 899 N.E.2d 1274, 1283 (Ind. 2009).
To shield private entities from liability for attorney's fees would thwart, rather than further, the public policy underlying the APRA. Here, the legislature has made it clear that the APRA must be "liberally construed to implement" the policy of full access to public records and transparency of government affairs. I.C. § 5-14-3-1. And the legislature clearly contemplated the involvement of private parties in APRA litigation. Removing from private entities any fear of liability for attorney's fees would deter persons seeking to inspect public records from filing APRA actions, as the private entities could assert non-meritorious defenses to avoid disclosure and drive up litigation costs. In light of the "liberal" construction mandate and the underlying policy of the APRA, we construe Indiana Code section 5-14-3-9(i) as permitting private-party liability for a prevailing plaintiff's attorney's fees.
We hold that private parties may be held liable for a substantially prevailing plaintiff's attorney's fees under the APRA. We also hold that the trial court did not abuse its discretion in awarding the fees against the public agency and intervening private entity, jointly and severally.
We affirm the trial court's award of attorney's fees to Union and remand to the trial court to determine what additional attorney's fees the Union incurred under the APRA as a result of ShepCo's appeal.
SULLIVAN and RUCKER, JJ., concur.
DICKSON, C.J., and MASSA, J., dissent without opinion.
