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.