Court Orders Town of Chevy Chase To Pay Nearly 100K in Public Records Case

Town must cover attorneys’ fees for pro-Purple Line group Action Committee for Transit


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Action Committee for Transit members, including Ben Ross, second from right, celebrate at the Purple Line groundbreaking on Aug. 28, 2017

A Montgomery County Circuit Court judge has ordered the Town of Chevy Chase to pay $92,000 in attorneys’ fees for Action Committee for Transit’s quest for public records related to the Purple Line.

The pro-Purple Line group brought the lawsuit in 2015 after the town tried to charge hundreds of dollars to search for records sought by member Ben Ross. Ross was pursuing information related to lobbying and public relations firms hired by the town to oppose the light-rail project.

Initially, Circuit Court Judge Cheryl McCally sided with the town. However, ACT appealed McCally’s ruling to the Maryland Court of Special Appeals.

In 2016, three appeals court judges ruled the town should have waived the fees and provided the information being sought because Ross is a writer and blogger on transportation issues who should have been considered a member of the media who was seeking documents in the public interest. The Maryland Public Information Act states governments may waive fees for the release of information considered to be in the public interest.

The appeals court instructed McCally to rule on whether ACT’s attorneys, working pro bono for the nonprofit, were entitled to attorneys’ fees.

On Sept. 6, McCally ordered the town to pay the fees for the approximately 400 hours that attorneys worked on behalf of ACT. McCally noted in her ruling that the town attempted to charge ACT $879 to begin searching for the documents, which led to the lawsuit.

“The biggest message [the ruling] sends to governments is don’t violate the First Amendment,” Ross said in an interview Tuesday. “The other message it sends to the Town of Chevy Chase is you’re a government, not a club.”

Town of Chevy Chase Mayor Mary Flynn said Tuesday she had not yet read the decision and was not in a position to comment on it.

The town argued that it denied the group’s request because ACT and Ross previously posted false accusations against the town on its website. However, the appeals court found that financial burdens can’t be imposed on groups or people based on the content of their previous speech.

The appeals court ruling was the first appellate decision to enter Maryland case law on fee waiver requests since 1986. McCally cut the requested attorneys’ fees in half—from $198,000 to $92,000—because she believed the firm representing ACT, Baker Hostetler, expended more resources than necessary on the case.

Eliot Feldman, an attorney with Baker Hostetler, said Tuesday the ruling was precedent setting. He said governments in Maryland, whether large or small, must not use fee waivers as leverage to prevent public information from being released.

“You can’t use fees as a barrier to access to information, particularly against those who are entitled to information such as journalists and nonprofit organizations,” Feldman said.

He said there is no plan to appeal the ruling to seek greater attorneys’ fees.

Ross said the transit group gleaned new information about the town’s lobbying efforts against the light-rail project after receiving the information. For example, he said, the group determined the town was employing the public relations group Xenophon Strategies to oppose the project.

The group also received documents related to the town’s contracts with the lobbying firms Buchanan Ingersoll & Rooney; Chambers Conlon & Harwell; and Alexander & Cleaver. The town spent tens of thousands of dollars paying the firms to oppose the light-rail project, according to court records.

Ronit Dancis, ACT’s president, said Tuesday the court rulings in favor of the transit group and its attorneys “set an important precedent for the public’s right to know in the state of Maryland.”

The town stopped opposing the light-rail project in the summer of 2015 and shifted to a strategy focused on mitigating the line’s impact on town residents. The town has never been part of the ongoing federal lawsuit brought by two Town of Chevy Chase residents and the trail group Friends of the Capital Crescent Trail that is now being considered in the U.S. Court of Appeals in Washington, D.C.

Purple Line construction began last month after the state signed a $900 million grant agreement with the federal government. Prior to that, the D.C. appeals court reinstated the project’s federal approval, which allowed construction to proceed as it considers the ongoing lawsuit that now hinges on whether a new environmental study is needed to determine if Metro’s ridership decline and safety issues would affect Purple Line ridership.

If completed, the Purple Line will stretch from downtown Bethesda to New Carrollton in Prince George’s County.

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