In Gannett v. Neptune Tp., its recent opinion holding that common law record requestors have no right to attorney fees, the Supreme Court took the unusual step of recommending that custodians receive training in how to deal with common law requests. As I’ll explain, public entities that fail to provide this suggested training run the risk of paying requestors’ attorney fees and court costs.

Noting that common law record requests often present complex issues, the Court

recommend[ed] that municipal clerks and other records custodians
for public entities receive comprehensive training with respect to common law
right of access claims, and that they be directed to carefully review each
request and provide a response that comports with the law.

Although the Court’s recommendation is not a binding directive, its opinion suggests a potential adverse consequence if a custodian does not receive appropriate training. The opinion states that attorney fees are not automatically awarded in common law matters, to enable public entities “to formulate a good-faith legal position on the disputed information and to litigate that position, without the risk of an award of attorneys’ fees in the event that a court later rejects it.” But the Court then cautions that the sanctions for frivolous litigation positions–which include awarding attorney fees–still apply to common law record disputes. According to the Court, these sanctions may be imposed where a custodian denies a request for a record that the Court has previously deemed to be subject to disclosure under the common law.

In short, the Court has signaled that if a custodian has not been trained in the common law right of access to records, and incorrectly rejects a request for a record that case law has determined to be disclosable under the common law, the public entity will face the risk of monetary sanctions.

I offer training programs regarding the common law right to records, for both custodians and attorneys. Please contact me at lewscheindlin@gmail.com if you are interested.