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 public agency faces the risk, in litigating an OPRA matter, of paying the plaintiff’s attorney fees if the plaintiff prevails in the case. To assist agencies in evaluating the potential cost of a records dispute, this blog will report on court-ordered attorney fee awards under OPRA.

In a recent case, Ganzweig v. Tp. of Lakewood, the trial judge awarded $21, 401.10 in attorney fees to a successful OPRA plaintiff. In making this award, the judge accepted as reasonable the $315 hourly rate requested by attorney Walter Luers, Esq., who frequently represents plaintiffs in OPRA litigation.

The award in this case is of particular interest because the judge added a 30% contingency enhancement, increasing the total amount awarded by several thousand dollars. Although trial judges are permitted to enhance a fee award, the New Jersey Supreme Court has cautioned that such an increase is rarely appropriate in OPRA matters. The Ganzweig opinion shows that despite the Supreme Court’s effort to limit enhancement of OPRA attorney fee awards to exceptional cases, trial courts will provide OPRA plaintiffs’ attorneys with substantial fee increases in cases presenting novel legal issues.