In early 2017, Mr. Whitehead tried to participate in Warren County’s decision-making regarding a contract dispute with a project vendor. Mr. Whitehead had discovered issues with a geo-thermal energy project and contract between Siemens Building Technologies, Inc. and Warren County, and his efforts led to the County questioning Siemens’ performance under the contract. It hired an engineering firm to evaluate the project—but then frustrated Mr. Whitehead’s efforts and hid information by failing to provide in a timely manner draft evaluation reports.

During that time, Mr. Whitehead submitted a Freedom of Information Law (FOIL) request for draft reports. When the County refused to disclose any portion of the reports, Mr. Whitehead filed a lawsuit to compel disclosure. Weeks later, the County disclosed the reports. The Supreme Court then dismissed Mr. Whitehead’s case as moot, but it did not address his request for his litigation costs.

FOIL permits a court to assess attorney’s fees and litigation costs against an agency when a requestor substantially prevails and the agency has no reasonable basis for denying access. The legislature enacted the FOIL fees provision “to create a clear deterrent to unreasonable delays and denials of access [and thereby] encourage every unit of government to make a good faith effort to comply with the requirements of FOIL.”

Mr. Whitehead has twice needed to bring lawsuits to obtain records relating to the Siemens project at a substantial personal expense. Each has been dismissed as moot after Warren County disclosed the records, leaving Mr. Whitehead out hundreds of dollars in filing fees needed to obtain public records that should have been disclosed without the need for litigation.

Mr. Whitehead just wanted his filing fees back, or, at least, an explanation from a court why he should not be reimbursed, so he filed a notice of appeal.

Not willing to risk additional expense, Mr. Whitehead contemplated abandoning his appeal before he retained the Government Justice Center to take up his appeal.

On October 18, 2018, the appellate division ruled in favor of Mr. Whitehead, ordering the Warren County Supreme Court to conduct further proceedings on his reimbursement request.

Click here to read the court’s decision.

For further reading, click here for the appellant’s brief, the appellee’s responsive brief and the appellant’s reply brief.