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Judge to consider attorney fees in Swayne case

by KAYE THORNBRUGH
Staff Writer | February 21, 2024 1:07 AM

COEUR d’ALENE — For the second time, a judge will decide how much North Idaho College will pay NIC President Nick Swayne in attorney fees.

In January, Swayne won a public records lawsuit seeking a copy of a summary report of an investigation into a former college employee’s allegations of “retaliatory treatment and retaliatory discharge” by Swayne and other college employees.

First District Judge Barry McHugh found the report is a public record and not exempt from disclosure to Swayne. McHugh also determined Swayne “is entitled to an award of attorney’s fees and costs on NIC’s claims of exemption found to be frivolous.”

Swayne’s attorneys billed  for $39,136 for 126 hours of work on the case performed between Oct. 14, 2023, and Jan. 31 of this year, according to court records. Swayne has asked the court to award him the full amount, as well as $741 in court costs.

Legal counsel for Swayne assert that he is entitled to attorney fees under Idaho law because “he is the prevailing party and NIC’s actions of withholding the report were frivolous.”

Attorneys representing NIC in the case have asked the court not to award Swayne’s full request for attorney fees and costs, calling the dollar amounts “wholly unreasonable.”

In situations where only some of the non-prevailing party’s case have merit, attorney fees may be awarded for the elements that were “frivolous, unreasonable and without foundation.”

Legal counsel for NIC asserts that the college did not act frivolously by denying Swayne’s requests for a copy of the report.

“The court actually confirmed that the report is not, in fact, subject to public disclosure; thus, the court seemingly determined that NIC acted properly in denying a public records request for the report,” NIC said in a court filing.

The judge’s order held that the report was exempt from disclosure to the general public but that Swayne was entitled to access it.

“The court finds that NIC’s refusal to make the report available to Swayne by claiming exemption under a statute that unequivocally provides him a right to access was not supported by facts or warranted under existing law and was therefore frivolous,” McHugh said in a written ruling.

McHugh found four out of NIC’s six arguments in the case to be frivolous.

Twice, NIC put forth an assertion that attorney-client privilege shielded the report from disclosure to Swayne. Though the court determined the argument had merit and was not frivolous, McHugh ultimately ruled that attorney-client privilege did not apply.

Swayne’s attorneys said any reduction in fees should be proportionate to the number of frivolous arguments presented by the college.

“Because NIC only presented one non-frivolous argument which was invoked in two different statutory sections, if the court is inclined to reduce the award, any reduction of fees and costs should be limited to a one-fourth reduction of the total requested amount,” Swayne’s counsel wrote in a memorandum filed with the court.

Last October, after Swayne won a separate lawsuit against NIC for his reinstatement, the court ordered NIC to pay attorney fees and costs in the amounts of $150,882 and $433, respectively.