Rivera v. Long (Norfolk Circuit Court) (on costs and attorneys' fees)

Link to June 2006 ruling in same case ruling on whether or not the plaintiff was entitled to access to the records he sought.

Andrew Rivera v. Elisa Long, General Registrar of the City of Norfolk
Norfold Circuit Court
At Law No: L05-2754
September 27, 2006

Dear Gentlemen:

This matter was before the court to determine the costs the plaintiff should pay to have access to the documents I determined he was entitled to inspect and the attorneys’ fees, if any, that should be awarded. Neither party presented any evidence.


The General Registrar submitted a memorandum reciting how she maintains the records sought and her estimate of the costs to assemble them. The plaintiff did not concede the reasonableness of the General Registrar’s estimated costs, but nor did he contest her estimate. As there is a presumption that public officials act in good faith and there was no evidence to contradict the General Registrar’s estimate of her costs, I find her estimates are reasonable charges. Thus the plaintiff may have access to the approximately nine hundred denial letters relating to "denied applications" upon the payment of $356.70; he may have access to the approximately fifteen hundred denial letters relating to "pending applications that have defaulted to denial status" upon the payment of $594.50; he may have access to the denial letters related to the approximately six hundred "pending applications processed using a new application or a combination of new and original" upon the payment of $237.80. If the plaintiff makes a request for any of these classes of denial letters and pays the appropriate fee on or before October 10, 2006, he shall be provided these documents as soon as practicable and before November 7, 2006.

If the plaintiff wishes to have access to the denial letters of the "pending applications processed using the original application," he shall pay $15,600. If the actual costs of assembling these documents should be less, the General Registrar shall refund the balance to the plaintiff; if the actual costs to produce the documents should be more than $15,600, then the General Registrar shall give the plaintiff an estimate of the additional costs and the plaintiff shall pay such amount before being given access to the records. If the plaintiff requests access to these records and pays the $15,600 costs, the General Registrar shall not be required to begin assembling them until after the general election of November 7, 2006, as her entire staff consists of three persons, they would have to review approximately 105,000 files by hand, and there are two contested elections and one referendum for a constitutional amendment on the ballot in November.

I do not believe that the approximately two hundred denial letters related to "unprocessed requests to change voter information" are within the class of documents the plaintiff has sought as those persons are registered to vote and only sought to change certain information, for example, their addresses.

Inspection or Copy

The Freedom of Information Act (the "Act") authorizes the "duplicating" of records subject to disclosure. Code of Virginia §2.2-3704(F). Code §2.2-3703(B) provides "Public access to voter registration and election records shall be governed by the provisions of Title 24.2 and this chapter. The provisions of Title 24.2 shall be controlling in the event of any conflict."

Code §24.2-444 provides, in pertinent part:

Registration records open to public inspection. --

A. Except for records relating to the declinations to register to vote . . . , registration records shall be kept and preserved by the general registrar and shall be opened to inspection by any registered voter at the office of the general registrar when the office is open for business. No voter registration record containing an individual’s social security number shall be made available for inspection or copying by anyone. No voter registration record containing an individual’s residence address shall be made available for inspection or copying by anyone if the individual has furnished a post office box address in lieu of his residence address as authorized by §24.2-418.

B. The general registrars shall maintain for at least two years and shall make available for public inspection and copying and, where available, photocopying at a reasonable cost, all records concerning the implementation of programs and activities . . . .

The first sentence of subsection A authorizes only inspection. The second and third sentences of that subsection, which were added by 1994 Acts of Assembly, c. 656 and 1997 Acts of Assembly, c. 611, 626 prohibit "inspection or copying". Subsection B, which was added by 1996 Acts of Assembly, c. 72, 73, authorizes "inspection and copying and, where available, photocopying."

The first sentence of subsection A, after the first comma, is derived from former Code §24-113, which provided "registration books shall be kept and preserved by the registrar and shall at all times be open to public inspection." Former Code §24-113 was derived from §104 of the Code of 1919, which in turn was derived from §84 of the Code of 1887, which provided in part:

The registrar, at each place of voting, shall deliver to the judges of election his registration books, not later than sunrise on the morning of election day; and after such election, the judges of election shall turn over the registration books to the registrar, who shall keep and preserve the same, and the said registration books shall at all times be open to public inspection.

In construing this statute the Supreme Court held it did not:

impos[e] upon the registrar, expressly or by fair implication, the duty of making copies when demanded, and failing to provide compensation to him for such work, and not requiring him to allow copies to be made, a mandamus cannot issue in accordance with the prayer of the petitioners directing the respondent to make copies of the registration books in his custody, or to permit petitioners to do so at their own expense.

Keller v. Stone, 96 Va. 667, 668, 32 S.E. 454 (1899).

Two constructions can be argued from the three amendments. First, there was no need to prohibit copying in the second and third sentences of subsection A if it was never authorized by the first sentence, so the enactment of the second and third sentences has created a right to copy by negative implication. Furthermore, the Act now provides for compensation to the General Registrar for her expenses, which was one of the concerns of the Court in Keller. Second, if the legislature intended to create a right to copy registration records in general it only had to add "an copy" to the first sentence. It did not do so in subsection A, but did so provide in subsection B. It was, however, emphatic that registration records containing social security numbers and, in certain cases, residential addresses should not be disclosed in any manner. The latter construction is the plain meaning of the statute. I conclude the plaintiff has the right to inspect but not copy the letters denying registration.

Attorneys’ Fees

The plaintiff is entitled to reasonable attorneys’ fees (the statute has the plural possessive) if he "substantially prevails on the merits of the case, unless special circumstances would make an award unjust." Code §2.2-3713(D). If I were writing on a blank late I would conclude neither side substantially prevailed. I would call it a draw.

However, in construing former Code §2.1-346, which appears to have been identical to the current provision for attorneys’ fees (except it used the singular possessive for "attorney"), the Supreme Court held "proof of even a single denial of the rights and privileges conferred by the Act is sufficient to justify an award of attorney’s fees." RF&P Corporation v. Little, 247 Va. 309, 322, 440 S.E.2d 908, 917 (1994).

The statutory authorization for attorneys’ fees notwithstanding, I do not believe two lawyers were necessary for this, a relatively simple case. There were only two brief hearings; little evidence was presented; no facts were really disputed; there was little discovery. Furthermore, the plaintiff only got half of what he sought. Having reviewed Mr. Emmert’s bill, and taking these factors into consideration, I find a fee of $2,000 would be appropriate.

At the last hearing Mr. Emmert candidly admitted the plaintiff was not liable to him for any fees and that he would only be compensated if the court awarded a fee. Most courts that have considered the issue have held that an attorney representing a client pro bono publico is entitled to be compensated under a fee shifting statute as that in the Act, when, as here, his client "substantially prevails." Brinn v. Tidewater Transportation District Commission, 242 F.3d 227 (4th Cir. 2001).

Request for Production of Documents

The plaintiff has requested forty randomly selected denied applications for voter registration to be produced and kept under seal for purposes of a possible appellate record. I deny the request. The standard voter application form issued by the Board of Elections should suffice and is already part of the record.

Sincerely yours,
s/ Everett A. Martin, Jr.