The Appellate Division issued an unpublished opinion last week, Feld v. City of Orange, that contains two reminders of basic legal principles governing attorney fee awards in OPRA cases:

(1) Attorney fee awards to prevailing requestors are mandatory. For reasons not explained in the opinion, the trial court in this case denied an attorney fee award, even though it ordered that a number of records be released to the requestor. The Appellate Division reaffirmed the clearly settled rule that OPRA makes fee awards mandatory, not discretionary, when a requestor’s litigation causes disclosure of records.

(2) An attorney who represents himself, in any type of case, is not entitled to an attorney fee award. As a result, the requestor here, an attorney who represented himself, was not eligible for OPRA’s attorney fee award.

I’ve previously noted that the necessity of defending meritless OPRA lawsuits imposes substantial costs on the public. But a recent Appellate Division opinion shows that public bodies have the ability to recoup the expense of litigating an OPRA suit, by seeking monetary sanctions against requestors who pursue frivolous claims.

In Valentin v. Boro of Penns Grove, the requestor sued the Borough, claiming it had not responded to his OPRA request. In fact, within several days of receiving the request, the custodian had notified the requestor that the responsive documents could be picked up.

The Borough’s attorney notified the requestor’s attorney of this, and demanded that the complaint be withdrawn. The attorney refused, stating that the custodian had not produced all requested records.

The Appellate Division upheld the trial judge’s order, issued pursuant to the frivolous litigation court rule, that the requestor’s attorney pay the Borough’s attorneys fees of $1725. The court said this sanction was appropriate because the requestor’s attorney, knowing that the complaint falsely stated there had been no response made to the OPRA request, nevertheless proceeded with the litigation.

The court also rejected the argument that a sanction wasn’t warranted because the requestor believed that not all responsive records had been provided in the response to the OPRA request. The court characterized this belief as not “objectively reasonable;” it concluded that the Borough had properly responded to the request.

This aspect of the opinion is especially notable. It’s not uncommon for requestors to pursue litigation based on their belief that they did not receive all responsive records. As this case shows, such a belief must be reasonable. Compliance with this requirement by requestors will forestall frivolous OPRA suits and save taxpayers’ dollars.

In 2005, a couple years after OPRA’s enactment, the Supreme Court dealt with the issue of how to determine the amount of a requestor’s attorney fee award, where OPRA litigation results in disclosure of only some of the records sought by the requestor. The Court ruled that in this situation, the award must be based on a “qualitative analysis” of the amount of litigation success achieved by the requestor. New Jerseyans for a Death Penalty Moratorium v. DOC.

Unfortunately, the Court didn’t clearly define what exactly this qualitative analysis consists of, making it difficult for public bodies to assess their potential attorney fee liability in OPRA litigation. This problem is illustrated by three recent Appellate Division opinions, which reached differing conclusions in calculating the attorney fees for plaintiffs who only partially succeeded in their OPRA claims.

In Parsons v. State, issued February 26, 2018, the court upheld the trial judge’s reduction of an attorney fee award request from over $57000 to $3500. Although the plaintiff did succeed in getting some information released, it failed to obtain disclosure of other records. The judge held that a substantial reduction of attorney fees was warranted under the New Jerseyans opinion, because plaintiff’s level of success was “quite low.”

Just a few days later, another appellate panel upheld an attorney fee award of over $100,000 to two newspapers that had litigated over access to a 911 call. Middlesex Cty. Prosecutor v. NJ Advance Media. The plaintiffs were not fully successful, as the litigation resulted in release of a redacted version of the call, and the court rejected plaintiffs’ claim that the redactions were improper. Nevertheless, the court held that under New Jerseyans, there should be no reduction in the fee award.

And on March 20th, in another OPRA case against the Middlesex Prosecutor, the plaintiffs obtained redacted copies of various records. The court awarded the full amount of fees requested, simply saying that making redactions to records does not limit the success achieved.

These opinions shed little light on what is a proper “qualitative analysis.” In all of the cases the requestor failed to obtain full disclosure of the records in issue, but in one case the requestor was given almost no attorney fees, while in the others the requestors received the full amount of their fees. The opinions do not explain precisely what criteria the courts used to determine the “quality” of the relief obtained by these requestors.

The Appellate Division’s recently held that the NJ SPCA is subject to OPRA. Wronko v. NJ SPCA. While this holding is only applicable to the SPCA, the court’s opinion also contained a ruling that is relevant to all public bodies: a public agency that loses OPRA litigation will have to pay the requestor’s attorney fees, regardless of the impact of such an award on the agency’s budget.

In the Wronko case, the trial court awarded the requestor approximately $42,000 in attorney fees for successfully litigating the case. On appeal, the SPCA argued that the award should be vacated because it did not have sufficient funds to satisfy the award. The Appellate Division summarily rejected this argument, simply commenting that while it recognized that $42,000 was a “significant portion” of the agency’s budget, the SPCA had failed to comply with the OPRA request as well as various court orders requiring that it deal with the OPRA request.

In other words, there’s no exception to OPRA’s requirement that a fully successful OPRA plaintiff receive attorney fees. This is a useful reminder from the court–in a published, precedential opinion–that OPRA attorney fee awards, which are sometimes substantial, will not be reduced or vacated based on a public body’s fiscal situation.

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.

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.