Can County Attorneys Be Punished for Withholding Public Records?

Question from Joe, Can County Attorneys Be Punished for Withholding Public Records?

Answer from AI:

Public‑records duties of county officials

State public‑records statutes (often called “Freedom of Information” or “Open Records” laws) require that most government documents be made available to the public upon a proper request. The statutes list limited exemptions—such as ongoing investigations, personal privacy, or trade secrets—but they do not give elected officials a blanket right to refuse disclosure.

What the county attorney does

The county attorney is the legal counsel for the county government. In that role the attorney:

• advises the board of county commissioners on whether a particular record is subject to an exemption,
• drafts or reviews any response to a records request, and
• ensures that the county’s actions comply with the applicable open‑records law and with the attorney’s own professional‑ethics rules.

If the attorney tells the commissioners that a record can be withheld when the law does not support that position, the attorney may be acting outside the scope of the law and the rules of professional conduct.

Possible consequences for the attorney

1. Professional‑disciplinary action

State bar rules (e.g., the ABA Model Rules of Professional Conduct, adopted in some form by every state) require lawyers to provide “competent representation” and to refrain from conduct involving “dishonesty, fraud, deceit or misrepresentation.” Deliberately advising a client to violate a public‑records statute can be viewed as a breach of Rule 1.1 (competence) and Rule 8.4 (professional misconduct). A complaint to the state bar could result in:

• reprimand or censure,
• suspension of the law license, or
• disbarment in extreme cases.

2. Civil liability

A person denied access to records may file a civil action under the state’s open‑records law. While the primary defendant is usually the governmental entity, courts sometimes allow “piercing the corporate veil” to hold the attorney personally liable when the attorney’s conduct is the direct cause of the illegal withholding. Remedies can include:

• an order compelling disclosure,
• attorney’s fees and costs awarded to the requester, and
  *, in rare cases, punitive damages if the conduct is found to be willful and malicious.

3. Criminal penalties

Some states treat intentional violations of open‑records statutes as a misdemeanor. For example, Arizona’s Public Records Law (Ariz. Rev. Stat. §§ 39‑121 et seq.) makes it a criminal offense to “knowingly and willfully” deny a lawful request. If a county attorney knowingly participates in that violation, the attorney could be charged alongside the officials, although prosecutions are uncommon.

When commissioners vote to withhold records

The commissioners’ vote itself does not automatically shield them from liability. The vote must be supported by a valid statutory exemption. If the county attorney’s advice is the basis for the vote and that advice is contrary to the law, the attorney’s participation can be the “culpable act” that triggers the consequences listed above.

What to do next

Because the exact outcome depends on the state’s specific open‑records statute, the particular facts of the request, and the attorney’s conduct, anyone concerned about a potential violation should:

• review the relevant state public‑records law (e.g., the California Public Records Act, Cal. Gov’t Code § 6250‑6299, or the Texas Public Information Act, Tex. Gov’t Code § 552), and
• consult a licensed attorney experienced in government‑law and professional‑ethics matters for personalized guidance.

Useful resources

• National Conference of State Legislatures – “Freedom of Information Laws by State” – https://www.ncsl.org/research/telecommunications/freedom-of-information-laws.aspx
• American Bar Association – Model Rules of Professional Conduct – https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/

These links provide the statutory background and the ethical standards that govern a county attorney’s conduct.