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 For example, in this unpublished Appellate Division opinion, the court awarded only $500, to reflect the fact that all but a handful of the challenged redactions were upheld.