Public Bodies Face Risk Of Attorney Fee Awards In Common Law Records Cases

One of OPRA’s most significant provisions is the requirement that public bodies must pay the attorney fees of a requestor who prevails in litigation. What’s often overlooked is that a public entity can defeat an OPRA claim, and still have to pay a substantial attorney fee award, if the court determines that the requestor may obtain the documents under the common law right to public records.

For example, as discussed here, an Atlantic County trial judge recently held that a public body had correctly denied an OPRA request, but awarded over $45,000 to a plaintiff under the common law. The judge determined that he had the authority to make this award under a 2008 Supreme Court opinion, Mason v. City of Hoboken.

Until the Mason opinion, attorney fees had never been awarded in common law records suits. This longstanding practice was overturned by a single, gratuitous sentence in the Supreme Court’s opinion.

Mason involved two issues: the statute of limitations applicable to OPRA lawsuits, and whether the “catalyst theory” of attorney fee awards applies under OPRA. The question of awarding attorney fees under the common law right to know was not raised in the briefs or during argument; I know this because I argued this case for the State. Nevertheless, after a lengthy discussion of OPRA’s attorney fee provision and the catalyst theory, the Supreme Court said:

“The parties have not addressed at length whether the question of attorney’s fees meritsĀ  different treatment in an action brought under the common law. Absent an apparent, theoretical basis for such a distinction, we conclude that the catalyst theory applies to common law suits as well.”

Based on this statement, some courts have awarded attorney fees where a plaintiff is successful solely on a common law claim. Although the Appellate Division has determined, in non-precedential, unpublished opinions, that fees may be denied to a successful common law plaintiff, see Paff v. Garwood and Kahler v. State Police, these rulings say that Mason permits a judge to exercise discretion to grant fees in an individual case, such as where the denial of access to the record was unreasonable.

This result is completely contrary to New Jersey law. As the Mason Court itself recognized, New Jersey follows the “American Rule,” under which the prevailing litigant cannot recover attorney fees from the losing party, unless such shifting of fees is specifically permitted by statute, court rule or contract. The common law right to public records, unlike OPRA, contains no authorization to award fees to the prevailing party.

The Mason opinion did not deal with this clear barrier to awarding fees in common law cases. I think that if this issue were to be presented to the Supreme Court now, with the argument fully briefed, the Court would conclude that a judge has no discretion to award fees under the common law. But no such case is before the Court currently. The Atlantic County case mentioned above has been appealed, but it is far from reaching Supreme Court review.

As a result, the Supreme Court’s curious statement in Mason must be followed by the courts at this time. Public bodies should keep in mind that even if there is a strong basis under OPRA to deny a records request, there is still a risk that a judge may grant the request under the common law, and require payment of attorney fees.

 

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