Attorney Fees under the Open Public Records Act (“OPRA”)

Law Lessons from Grieco v. Borough of Haddon Heights, __ N.J. Super. __ (Law Div. 2017), Camden Cty. (Katz, A.J.S.C.) DOCKET NO.: L-2876-15, APRIL 24, 2017:

N.J.S.A. 47:1A-5(i) [Open Public Records Act (“OPRA”)] states, in part:

Unless a shorter time period is otherwise provided by statute, regulation, or executive order, a custodian of a government record shall grant access to a government record or deny a request for access to a government record as soon as possible, but not later than seven business days after receiving the request, provided that the record is currently available and not in storage or archived . . . . If the government record is in storage or archived, the requestor shall be so advised within seven business days after the custodian receives the request. The requestor shall be advised by the custodian when the record can be made available. If the record is not made available by that time, access shall be deemed denied.

A person who is denied access to a government record by the custodian of the record, at the option of the requestor, may:

institute a proceeding to challenge the custodian’s decision by filing an action in Superior Court which shall be heard in the vicinage where it is filed by a Superior Court Judge who has been designated to hear such cases because of that judge’s knowledge and expertise in matters relating to access to government records; or
in lieu of filing an action in Superior Court, file a complaint with the Government Records Council established pursuant to section 8 of P.L. 2001, c. 404 (C. 47:1A-7).

The right to institute any proceeding under this section shall be solely that of the requestor. Any such proceeding shall proceed in a summary or expedited manner. The public agency shall have the burden of proving that the denial of access is authorized by law. If it is determined that access has been improperly denied, the court or agency head shall order that access be allowed. A requestor who prevails in any proceeding shall be entitled to a reasonable attorney’s fee.

A person who requests a public record from a custodian of the record and is denied access to that record may institute a proceeding in Superior Court to challenge the custodian’s decision. N.J.S.A. 47:1A-6. In any such proceeding, the public agency bears the burden of proving that the denial of access was authorized by law. Ibid. “A requestor who prevails in any proceeding shall be entitled to a reasonable attorney’s fee.” Ibid. The purpose of OPRA’s fee-shifting scheme is to protect the public’s right to certain government records, as without the provision “the ordinary citizen would be waging a quixotic battle against a public entity vested with almost inexhaustible resources.” New Jerseyans for a Death Penalty Moratorium v. N.J. Dep’t of Corr., 185 N.J. 137, 153 (2005). The Legislature intended to level the field through the fee-shifting provision. Ibid.

In order “[t]o be entitled to such counsel fees under OPRA, a plaintiff must be a prevailing party in a lawsuit . . . brought to enforce his or her access rights.” Smith v. Hudson Cty. Register, 422 N.J. Super. 387, 393 (App. Div. 2011). In many cases, it is simple to see whether or not a requestor is a “prevailing party”; if the trial court finds the government entity in violation of OPRA, the requesting party has prevailed within the meaning of the statute. E.g., Gilleran v. Twp. of Bloomfield, 440 N.J. Super. 490, 494 (App. Div. 2015).

It is more difficult, however, to determine whether a requestor is a prevailing party when the government agency voluntarily discloses the requested records after a lawsuit is filed. To address this issue, the New Jersey Supreme Court has adopted the “catalyst” theory. Mason v. City of Hoboken, 196 N.J. 51, 76 (2008). “A plaintiff may qualify as a prevailing party, and thereby be entitled to a fee award, by taking legal action that provides a ‘catalyst’ to induce a defendant’s compliance with the law.” Smith, supra, 422 N.J. Super. at 394. In order to prove that the bringing of an action is a catalyst, it must be demonstrated that there exists “(1) a factual causal nexus between plaintiff’s litigation and the relief ultimately achieved; and (2) that the relief ultimately secured by plaintiffs had a basis in law” (internal quotations and citation omitted). Mason, supra, 196 N.J. at 76. It is the requesting litigant who bears the burden to prove that their action was the catalyst for disclosure, except when the government agency fails to respond to the request at all within seven business days. Ibid. In the latter situation, the agency bears the burden. Ibid.

A catalyst analysis is a fact-sensitive inquiry and requires the court to evaluate “the reasonableness of, and motivations for, an agency’s decisions,” on a case-by-case basis. Id. at 79. Such analysis must take into account the fact that OPRA “is designed both to promote prompt access to government records and to encourage requestors and agencies to work together toward that end by accommodating one another.” Id. at 78.

Our Supreme Court has directed courts to evaluate the motivations for an agency’s decision in denying or failing to turn over public records. Mason, supra, 196 N.J. at 79.

OPRA envisions cooperation between requestors and government agencies. Id. at 78. The very language of the statute contemplates collaboration between the two. See N.J.S.A. 47:1A-5(g) (“[i]f a request for access to a government record would substantially disrupt agency operations, the custodian may deny access to the record after attempting to reach a reasonable solution with the requestor that accommodates the interests of the requestor and the agency” (emphasis added)). See also Mason, supra, 196 N.J. at 78 (discussing this statute as an example of working together to promote access to records). The New Jersey Supreme Court has also looked favorably upon allowing custodians and requesting parties to agree to extend the seven-business-day response deadline imposed on the government by OPRA. See ibid. (referencing a decision of the Government Records Council).

In Mason, our Supreme Court adopted the catalyst theory but rejected a rebuttable presumption that the plaintiff has “prevailed” whenever a defendant discloses a requested record after an OPRA complaint is filed. Id. at 77-79. The Court reasoned that such a presumption was improper because:

[u]nder such a rule, plaintiffs would have an incentive to file suit immediately after a request for disclosure is denied or not responded to in a timely fashion, based in part on the expectation of an award of attorney’s fees. Agencies, in turn, would have reason not to disclose documents voluntarily after the filing of a lawsuit. If they did, they would be presumed liable for fees. As a result, courts could expect to see more aggressive litigation tactics and fewer efforts at accommodation.

[Id. at 78-79.]

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