State must pay fees in NAACP suit

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The NAACP is entitled to some attorneys’ fees for its six-year pursuit of Maryland State Police traffic stop records, a Baltimore County judge has found.

While the state police argued that taxpayers shouldn’t have to foot the bill for a “close call,” Judge Timothy J. Martin held that the Baltimore-based National Association for the Advancement of Colored People was entitled to fees since its lawsuit benefited the public and the group had the public interest in mind when pursuing litigation.

“To require the NAACP to underwrite on its own the expenses to secure performance by the MSP of providing these documents ordered by this Court six years ago and ultimately ordered by the Court of Appeals is a discomforting concept,” Martin wrote in his memorandum opinion in Baltimore County Circuit Court.

The decision comes about a year after the state’s highest court ordered the agency to release redacted records of complaints in which citizens alleged that they were pulled over for traffic stops and searches because of race. The NAACP argued that the records were needed to establish whether the agency was complying with a 2003 consent decree in the “driving while black” litigation.

“Six years ago, we said, ‘This is not compromising any one’s private interests,’” said attorney Seth A. Rosenthal of Venable LLP in Washington, D.C., who also represented the NAACP. “State police did not want to hear it and took it all the way up through the Court of Appeals,” he added.

The Maryland State Conference of NAACP Branches is represented by attorneys from the American Civil Liberties Union of Maryland and Venable LLP.

“The whole notion that we could have spent six to seven years of legal work on trying to secure the release of information and records and getting that all the way through appeal after appeal and not get any compensation for our work, was very disconcerting,” said Deborah Jeon, legal director for the ACLU of Maryland.

The Office of the Maryland Attorney General, which represented the state police, declined to comment on the decision.

While the ACLU often argues for attorneys’ fees in the civil rights cases it pursues, Jeon said it was more difficult to make the case under the Maryland Public Information Act.

“There just haven’t been that many cases with public information requests like this…,” Jeon said. “The law just has not been as well-developed. That was a bit of a surprise.”

Plus, unlike the civil rights cases the group is accustomed to, arguing for attorneys’ fees under the information act is a two-pronged approach: a party must first be found eligible, then entitled to the fees.

MSP not unreasonable

In Tuesday’s opinion, Martin first found the NAACP had substantially prevailed in the case, making it eligible for attorneys’ fees. The MSP did not dispute that point.

As for entitlement, Martin found the lawsuit was in the public interest because it advanced the “cause of civil rights enforcement,” and that the NAACP had no commercial interest in the case.

“Its efforts to gain disclosure of the requested records were for the purpose of protecting the public good by shedding bright light on the MSP’s efforts to investigate complaints of racial profiling by the troopers on our highways,” Martin wrote.

On the question of whether the state police’s actions were unreasonable, Martin found that the state police had not acted in bad faith or even unreasonably by refusing to issue the records until ordered to do so by the state’s top court.

The MSP had argued that the case presented a “close call,” since complaints against the officers were considered personnel records exempt from disclosure.

The state’s taxpayers should not be forced to pay the legal bills when a custodian of records guesses wrong on such a close call, MSP argued.

Martin acknowledged some validity to that argument, but ultimately found the NAACP should not be forced to shoulder the entire burden either.

“The very philosophy of fee sharing as indicated in the cases is clearly involved in the instant dispute,” Martin wrote.

Next step

In 2007, the NAACP asked to see police records in order to follow up on the 2003 consent order requiring police to investigate racial profiling complaints and file quarterly reports on the findings.

The state police issued some records, but declined to give out documentation of complaints filed with its internal affairs department, citing the personnel records exception of the Maryland Public Information Act.

The NAACP claimed the exception did not apply to the redacted complaints.

The Court of Special Appeals upheld Martin’s August 2008 order and the case went before the Court of Appeals in November 2010.

The Daily Record and about a dozen other news organizations joined a brief arguing that impeding the release of personnel records would render journalists unable to hold public officials accountable. The brief was written by the Reporters Committee for Freedom of the Press and was filed with the case in the Court of Appeals.

Last year, the Court of Appeals held that once the names of personnel were removed from the documents, they were eligible for public release.

After this week’s decision, the next step will be a hearing to determine the amount of fees that will be awarded.

Jeon, however, said she is not sure litigation will end there, since it is possible the state police could appeal the fee amount. The parties have previously tried unsuccessfully to settle attorneys’ fees out of court, Jeon said.

“Hopefully, we will be able to work it out so we get a fair payment and move on,” Jeon said. “I don’t know if that will be the case or not. State police have been fighting this case for a long time.”

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