The Appellate Division recently issued an important opinion concerning the limits of OPRA’s attorney fee award provision. The court held that a plaintiff who does not seek access to records, but instead claims the public body otherwise is not complying with OPRA, is not entitled to an attorney fee award for litigation success. Kennedy v. Montclair Center Corp. Business Improvement District.
After Kennedy filed a complaint, the District provided him the records he had requested, but denied that it was subject to OPRA. Kennedy litigated over this issue, and eventually the Appellate Division issued an opinion declaring that the District is an agency covered by OPRA. Kennedy then sought over $145,000 in attorney fees related solely to the litigation he pursued after receipt of the requested records.
The court determined that OPRA provides attorney fees only to requestors who succeed in obtaining access to records. Kennedy was not such a requestor–he had already received access to the records he asked for (with attorney fees for that part of the litigation), and the additional litigation over whether the District is subject to OPRA did not result in providing any records to him.
In short, the court said that OPRA is not intended to give fees to those who file litigation to enforce aspects of OPRA, rather than to obtain records.
I’m surprised that this important opinion is not published and precedential. The Appellate Division had never dealt with this issue before, and there have been cases where lower courts have incorrectly ruled that attorney fees may be awarded under OPRA even where the requestor did not gain access to records.
I’ve previously noted the difficult issue of whether OPRA requestors may obtain student records, in light of the privacy accorded to student information by education statutes. The Appellate Division recently answered this question. In a precedential opinion authored by Judge Sabatino, the court said that student records are not accessible under OPRA. L.R. v. Camden City School Dist., etc.
The plaintiffs in this case submitted OPRA requests for records related to special education students from a few school districts, and they indicated that they intended to request these records from every school district in the state. The Appellate Division held that OPRA does not grant public access to these records; instead, it said, the limitations on access to student records contained in the pertinent DOE regulations are controlling.
The court emphasized that anyone requesting such records must comply with the procedures and substantive requirements of the DOE regulations, and it highlighted that student records are not open to everyone; rather, they may be accessed only by the specific entities and individuals listed in these regulations.
The court said it was premature to address any claims for attorney fees made by plaintiffs. This leaves open an interesting question for future cases: given the court’s ruling that the DOE regulation, not OPRA, is the vehicle for obtaining student records, is OPRA’s attorney fee award provision applicable in the event of litigation over access to student records?
The Appellate Division issued a published opinion today that states what should be self evident: a requestor may not file an OPRA lawsuit for an award of attorney fees after it has received the records requested. Stop & Shop v. County of Bergen.
Stop & Shop submitted a request in 2011 and received various documents. It submitted a similar request in 2014. This time, the County’s response included a few documents that apparently should have been provided in response to the 2011 request. The court’s opinion does not explain why these records were not originally provided.
Stop & Shop filed suit claiming violations of OPRA and the common law and seeking attorney fees. The court held that this action was moot because plaintiff had received the records before it filed the complaint–in short, it had not been denied access to records.
The court rejected Stop & Shop’s argument that it was entitled to attorney fees, on the ground that its litigation was not the catalyst for the production of the documents.
As noted, this opinion was published, meaning it has precedential force. The opinion should serve as a valuable reminder of a principle that some requestors ignore: the purpose of OPRA litigation is to obtain records for the requestor, not simply an award of attorney fees.
OPRA cases often become a battle over attorney fees, with requestors seeking, and often receiving, large fee awards from public bodies. In many cases, requestors try to capitalize on a minor or unintentional mistake by the custodian as the basis for obtaining attorney fees.
An opinion issued today by Camden County Assignment Judge Katz makes clear that requestors are not entitled to receive attorney fees in every situation where the public body errs in responding to the OPRA request. Fees will not be awarded where the requestor unreasonably rushes to court in an effort to obtain such an award. Grieco v. Boro of Haddon Heights.
In this case, the public body provided some documents requested, but didn’t turn over one of them, due to an innocent and understandable mistake–the document “slipped through the cracks” when the custodian had to leave work suddenly due to a family medical emergency. The requestor did not contact the public body about the missing record, and instead filed suit two weeks after receiving the OPRA response. The public body did not realize it had failed to turn over the document until it was sued, and at that point it immediately provided it to the requestor.
The judge ruled that attorney fees should not be awarded in this situation, where the requestor chose litigation over trying to resolve the matter with a simple phone call. In accordance with the Supreme Court’s opinion in Mason v. Hoboken, the judge said, this kind of uncooperative conduct violates OPRA and requires denial of fees to the plaintiff.
This is not a groundbreaking opinion–as Judge Katz stated, the facts of this case are similar to those in Mason, the 2008 Supreme Court opinion that established the standards governing entitlement to attorney fees under OPRA. Nevertheless, it’s useful to have a reminder from a court that requestors who rush into court are unlikely to obtain attorney fees. And this trial court opinion is published, giving it some precedential weight.
Every OPRA request presents the risk that a public body will have to pay the requestor’s attorney fees if the request is not answered properly. The courts generally construe OPRA’s attorney fee provision in favor of requestors; one judge even awarded fees in a case where the requestor obtained no records, simply because the custodian had not fully described the correctly withheld records.
The Appellate Division’s recent opinion in Paff v. Bergen County is a rare example of a court declining to apply OPRA’s attorney fee provision so broadly. As discussed here, this opinion is important because it held, for the first time, that internal affairs records of law enforcement agencies are confidential. In addition, the court said that the requestor could not obtain attorney fees, even though the custodian had not fully complied with OPRA in handling the request.
The OPRA violation was the custodian’s failure, in initially responding to the request, to give the basis for the redactions. This explanation was given after the complaint was filed. The Appellate Division ruled that this omission did not warrant the imposition of attorney fee liability. It noted that the requestor did not obtain the records that he had sought and litigated over– the names of officers and complainants shown in the internal affairs complaints–and therefore had not prevailed in his OPRA case.
It’s rare for a court to deny fees where there’s an OPRA violation, but the result here is consistent with the legislative intent that only requestors who truly succeed in their litigation efforts should receive attorney fees.
The Appellate Division held today that the Attorney General properly denied a request for the names of State employees who sought legal representation or indemnification in connection with the Bridgegate investigations. North Jersey Media v. State Dept. of Law and Public Safety. The opinion is unpublished, even though no court has previously addressed the issue of whether OPRA requires disclosure of the identity of a government attorney’s client.
The court held that this information is confidential under the attorney-client privilege as well as the Rules of Professional Conduct. Communications between State employees and the Attorney General’s Office concerning legal representation matters are covered by the attorney-client privilege. Also, the court said that the OPRA request was properly denied because R.P.C. 1.6 provides that client identity is confidential.
The Appellate Division also reversed the trial court’s award of attorney fees to the requestor. The court ruled that although the Attorney General’s Office had provided certain other records to the requestor, the release of these records was not caused by the OPRA suit.
The attorney fee ruling is notable only with regard to the amount of fees involved–over $57,000 for the trial court litigation alone. This shows, as I’ve previously discussed, that OPRA matters can potentially generate substantial attorney fee awards against public bodies.
Recent articles, such as this one, have reported on the statistic that the State has paid around $1 million over the past four years in plaintiffs’ attorney fees, for OPRA lawsuits that have been either lost or settled by the State. The premise of these articles is that the government’s improper withholding of records costs the State’s taxpayers a lot of money. Unfortunately, these articles don’t report on the other side of the coin–the many cases where requestors have litigated and lost their OPRA claims.
In my experience, the State and other public bodies win far more OPRA cases than they lose. This means that taxpayers are paying much more for requestors’ unsuccessful litigation: in all of these cases, public bodies must pay for attorneys to respond to the incorrect OPRA claims made by requestors.
A recent Appellate Division OPRA opinion demonstrates this point. Signature Information Solutions v. Jersey City MUA, did not involve the withholding of records; the public body provided a report to the requestor that satisfied the request. Nor was this a case where the press or a citizen sought records to learn about a governmental issue; instead, the requestor was a for-profit company that sought data so that it could sell this public information to others. The case was simply about the requestor’s claim for attorney fees, based on its argument that it had prevailed in the litigation.
The court firmly rejected this claim, holding that the requestor could not recover attorney fees because its request was invalid, and the public body did not improperly deny access to records.
Thus, the MUA–which did not violate OPRA–had to pay its own attorneys a presumably significant amount to defend it, not just in the trial court, but also on appeal.
This is just one example of the common situation where taxpayers have to bear the costs of OPRA requestors’ unsuccessful litigation.
Raritan Borough has settled its appeal of an OPRA case, Gannett v. Raritan Borough, by agreeing to pay $650,000.
This means that the court will not issue an opinion in what was one of the most important pending OPRA cases. The appeal involved several novel, significant issues concerning access to records in electronic format and the amount a public entity may charge the requestor for converting the records to that format.
An appellate court opinion also would have established precedent governing how attorney fee awards should be calculated under OPRA. The $650,000 settlement represents, by far, the largest attorney fee amount paid by a public body to a prevailing OPRA requestor. While the case is not precedential, it does serve as a warning that some OPRA matters can generate extremely high attorney fee liability for public bodies.
To assist agencies in evaluating the potential cost of a records dispute, this blog regularly reports on court-ordered attorney fee awards under OPRA.
An Ocean County trial judge recently awarded approximately $10,000 in attorney fees to an OPRA plaintiff who had sued Stafford Township. The judge granted counsel an hourly rate of $300. This rate is in line with the usual amount for OPRA cases, as discussed here, although judges have awarded much higher rates in some matters.
The odd aspect of the Stafford case is that the plaintiff received attorney fees for prevailing in the litigation, despite the fact that the Township did not release any records to him. The judge determined that plaintiff had prevailed because he had obtained a court order directing the Township to produce a Vaughn index identifying what records existed and any claimed exemptions for the records. In response to this order, the Township provided a certification that no responsive records existed.
The whole point of an OPRA request is to obtain access to government records. A Vaughn index is simply a means to enable a plaintiff to advocate to the court his position that the government records he requested should be released to him. Where a plaintiff ultimately does not succeed in gaining the release of any records, he has not won his OPRA case and should not be eligible for an attorney fee award.
Alternatively, in this type of situation it can be argued that the plaintiff should receive a substantially reduced attorney fee award. Under New Jersey law, an OPRA fee award to a prevailing plaintiff may be reduced due to the plaintiff’s limited success in obtaining government records. For example, in this unpublished Appellate Division opinion, the court awarded only $500, to reflect the fact that all but a handful of the challenged redactions were upheld.
A trial judge recently made an award of over $45,000 in attorney fees to a plaintiff who obtained documents under the common law right to know. This award is notable because the amount is substantially higher than a typical OPRA attorney fee award.
The amount is high for two reasons. First, the number of hours spent by plaintiff’s counsel, approximately 113, was unusually high for government records trial litigation. The judge concluded that the attorney reasonably spent so many hours, because the case was complex and involved novel issues and several court appearances.
Also, the judge substantially enhanced the attorney’s hourly rate. He set it at $400 per hour, rather than the $350 he had awarded in an unidentified prior OPRA case. The judge did not explain the basis for this decision, beyond saying that counsel’s credentials here were impressive.
This is the second time in the past several months that a judge has awarded an enhanced attorney fee in an OPRA case, despite the fact that the Supreme Court has said that such increases should rarely be granted to OPRA plaintiffs.
It is also significant that a $400 hourly rate is well above what is normally awarded in public records litigation. In the earlier case mentioned above, the plaintiff’s attorney, an experienced OPRA attorney, was granted an hourly rate of $315. The usual rate awarded in OPRA matters over the past several years has been in the $300 to $350 range.