dissenting in part. While I agree with the majority that the appellees’ use of unsigned and unretained written ballots violated the FOIA, I disagree with the court’s first-time interpretation of the Act’s provision that provides for attorney fees and costs. That statutory provision, Ark. Code Ann. § 25-19-107(d) (Supp. 1987), provides as follows:
(d) In any action to enforce the rights granted by this chapter, or in any appeal therefrom, the court shall assess against the defendant reasonable attorney fees and other litigation expenses reasonably incurred by a plaintiff who has substantially prevailed unless the court finds that the position of the defendant was substantially justified or that other circumstances make an award of these expenses unjust. However, no expenses shall be assessed against the State of Arkansas or any of its agencies or departments. If the defendant has substantially prevailed in the action, the court may assess expenses against the plaintiff only upon a finding that the action was initiated primarily for frivolous or dilatory purposes. (Emphasis added.)
Here, the appellant has prevailed on appeal, so the appellant clearly has met the first prong set forth in the law above — he substantially prevailed in his suit to enforce a right granted under FOIA. The only issue left, then, is whether the appellees’ position was substantially justified or other circumstances make an award of attorney fees or costs unjust. I believe that the appellees’ actions were unquestionably contrary to the terms and spirit of the FOIA and that appellant is entitled to an award of fees and costs.
In denying attorney fees and costs, the majority, relying on language contained in an article by a University of Arkansas Law School associate professor, concludes that the circumstances in this case do not suggest either arbitrary or bad faith conduct on the appellees’ part. See Watkins, Recent Developments Under the Arkansas Freedom of Information Act, 1987 Ark. L. Notes 59, 64. From my reading of the article relied upon by the majority, I find nothing to support the “arbitrary or bad faith conduct” test that this court now wishes to impose. The article, itself, suggests the purpose of the Act’s attorney fee provision is to assess fees and costs where public officials have acted “arbitrarily or in bad faith” in withholding records, but the author cites no legal authority for such a proposition. In my opinion, such a bad faith test is far too restrictive to apply to an Act that is to be liberally construed. If this court decides to engraft a “bad faith” requirement onto the FOIA as a prerequisite for an award of attorney fees, I fear such awards will be as rare as the dodo bird.
Language similar to that employed in Arkansas’s FOIA attorney fee provision can be found in certain federal acts which have been construed in some federal court cases. The case of Natchez Coca-Cola Bottling Co., Inc. v. N.L.R.B., 750 F.2d 1350 (5th Cir. 1985), concerned the Equal Access to Justice Act which provided that a party shall receive attorney fees and other expenses “unless the adjudicative officer of the agency finds that the position of the agency as a party... was substantially justified or that special circumstances make an award unjust.” In its opinion, the court recognized the rule that the government bore the burden of proving that the General Counsel’s action had a reasonable basis in both law and fact. In applying that rule, the court held that the General Counsel was substantially justified in its action and that attorney fees were precluded. In Fenster v. Brown, 617 F.2d 740 (D.C. Cir. 1979), the court addressed the federal FOI provision which states that a court may assess attorney fees and litigation costs “in any case ... in which the complainant has substantially prevailed.” The circuit court mentioned the following four criteria to consider in deciding whether an attorney fee award should be made:
(1) the benefit to the public, if any, derived from the case;
(2) the commercial benefit to the complainant;
(3) the nature of the complainant’s interest in the records sought; and
(4) whether the government’s withholding of the records had a reasonable basis in law.1
These federal cases, of course, do not control the attorney fee issue before us, but in a limited way we might find some guidance. For example, if a reasonable legal basis exists for a public official’s having violated the FOIA, a court would be correct in awarding no fee or costs because the official was “substantially justified” in his or her actions. In my opinion, this “reasonable legal basis” position should, at the very least, be the threshold requirement in refusing or awarding attorney’s fees in FOIA cases. In other words, if a public official has no reasonable legal basis upon which he or she denies access to public meetings or records that are held or kept pursuant to the terms of the FOIA, then the courts should award attorney fees and costs. Whether other circumstances may exist that would cause such an award to be unjust would necessarily be determined upon a case-by-case basis.
The FOIA attorney fee and costs provision serves to encourage a person to file suit when a violation of that Act occurs. In this respect, the provision ensures the enforcement of the Act’s requirements, and, indirectly, fosters compliance with the Act, as well. While I can and will presume the appellees are well intentioned in the instant case, they have offered no valid justifications — legal bases — for having violated the FOIA. In fact, the appellant has brought to this court’s attention that the Arkansas Attorney General’s office previously had issued opinions to certain officials concerning the use of ballots and indicating such ballots must be signed and retained subject to inspection under the FOIA. See Ark. Op. Att’y Gen. File No. 149-A Op. No. 74-72 (May 23,1974); Ark. Op. Att’y Gen. File No. 149-A (Nov. 22,1971). Apparently appellees were unaware of these opinions and had failed to request advice on this matter from either the Attorney General or other legal counsel.
Appellees did, however, prevail at the trial level which does, in my view, present a circumstance in favor of their argument that no award of attorney fees is justified in this cause. Of course, a trial court’s decision favoring a public official’s action under the FOIA is certainly one circumstance for this court to consider when deciding if attorney fees or costs should be awarded, but that factor alone is not, and should not be, binding. When I review the facts and law of this case, I believe the majority’s decision to deny attorney fees in this case is wrong.
The trial court clearly was wrong in holding the appellees did not violate the FOIA because they did not intend to prevent public inquiry or examination of the results of the AAA Committee’s actions. None of this court’s prior decisions can be read to suggest a person or official must intentionally violate the FOIA before a complaint, seeking to enforce the Act, can prevail. In Laman v. McCord, 245 Ark. 401, 432 S.W.2d 753 (1968), this court considered the penal provision contained in the FOIA and held very clearly that such a provision does not make the entire Act penal. The court in Laman was emphatic in stating that it had no hesitation in asserting its conviction that the FOIA was passed wholly in the public interest and is to be liberally interpreted to the end that the Act’s praiseworthy purposes may be achieved. The court added that the language of the Act is so clear, so positive, that there is hardly any need for interpretation. Id. at 405, 432 S.W.2d at 755. That, surely, is the situation at bar.
Here, appellant brought suit seeking declaratory relief that the appellees’ actions had violated the FOIA, but, in order to obtain such relief, he was required to appeal, having received an adverse decision below. Appellees did — much to their credit — vote to sign and retain written ballots at future meetings. However, as noted above, that action was not taken until after trial. The parties reached no settlement of their differences, and no court order was entered below so as to reflect the appellees’ intent to comply with the FOIA in the future. Under such circumstances, the appellees were free to follow the same practice in casting unsigned ballots in future meetings even though I am sure they would have met their pledge not to do so in the future. In any event, an appeal was required in order to resolve the respective parties’ dispute as to whether appellees’ actions violated the FOIA.
In sum, the present case is the first for this court to construe the Act’s new attorney fees and costs provision, but before reaching the attorney fee issue, the court held that the FOIA may be violated even though a person or public official never actually intended to do so. Situations will exist — including situations where the Act was not intentionally violated — when attorney fees and costs will be justified and this court should not adopt a test that requires a showing of bad faith before such awards can be granted. Such a test is not called for under the terms of the FOIA, and this court’s requirement of bad faith is too restrictive and will serve only to prevent the Act’s enforcement.
I also disagree with the majority’s decision not to address the appellee’s injunctive request. This court declines to reach the injunction issue because, after the trial below, the executive committee voted that all future ballots would be signed and retained. Appellant says his request is still viable based on the appellees’ past illegal decision. Of course, appellant is correct to the extent that while the appellees apparently voted not to violate the FOIA in the future, that vote or decision was never stipulated or made a part of any court order; to the contrary, appellant was required to pursue his right of appeal in order to obtain a holding that appellees had violated the FOIA.
In my view, appellant is certainly entitled to have this court reach the issue of whether he is entitled to injunctive relief. This request, however, would be unavailing, because, in my opinion, the circuit court simply has no power to issue an injunction. See, Cummings v. Fingers, 296 Ark. 276, 280-281 n.2, 753 S.W.2d 865, 868 n.2 (1988); Id. at 281, 753 S.W.2d at 868 (Newbern, J., concurring). I believe the appellant is entitled to a decision on this issue now. Certainly, our decision, one way or the other, would serve to eliminate future confusion on this subject.
Hickman and Hays, JJ., join this dissent.These four criteria were reported in Senate Report 19, reprinted in Legislative History 171.