Category Archives: Attorney fee awards

Substantial Revisions to OPRA Enacted

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As readers of this blog know, on June 5th the Governor signed into law a bill that, for the first time since OPRA’s inception, significantly revises the law. Over the next several weeks, I’ll publish posts analyzing each of the various new provisions in the statute. Today, I want to make a few general comments about this comprehensive revision of OPRA.

Requestors, the media, and other organizations that oppose the bill have levelled the charge that enacting the bill has “gutted” government transparency under OPRA. I disagree. OPRA continues to provide public access to most records made, maintained or received by the government. The statute’s key requirements governing requests for government records, and responding to requests, have not changed.

The claim that the new legislation undermines public access is based primarily on the fact that attorney fees will now not be automatically awarded to a requestor who succeeds in OPRA litigation. This argument rests on two premises: without mandatory fee awards, attorneys will not take on cases for OPRA requestors; and without the prospect of such awards, public bodies will have less motivation to comply with OPRA.

But OPRA, as revised, still provides for fee-shifting. It states that a court or the GRC “may” award attorney fees to a prevailing requestor; moreover, if the agency unreasonably denied access, or otherwise acted in bad faith, an attorney fee award is mandatory. So there is still a substantial threat that a public agency will have to pay the requestor’s attorney fees when there is litigation.

It appears, as indicated in the Governor’s bill signing statement, that OPRA now follows the model of the federal FOIA, which gives a court discretion to award fees to a prevailing requestor, and requires consideration of the reasonableness of the government’s denial of access in making this determination. I’m not aware of FOIA requestors having problems retaining attorneys for litigation.

The other reason given for claiming that OPRA will no longer be effective focuses on the new provision that allows public entities to sue for a protective order where the requestor sought records “with the intent to substantially interrupt the performance of government function.” The argument is that this threat of being sued will deter people from making requests.

This logic doesn’t hold up. The section does not apply to the typical requestor who is legitimately seeking records, and it’s appropriate for the Legislature to provide a means to deal with someone who uses OPRA to interfere with government.

In addition, I doubt there will be much of a deterrent effect because I think this type of protective order suit will rarely be filed. First, such a complaint may be filed only after the public body has made a “good faith effort to reach an informal resolution of the issues relating to the records requests.” And if this step doesn’t work out, there is an exceptionally high bar to filing a complaint against the requestor: it’s often very difficult to prove in court what the requestor’s intent was, and this is heightened even more by the fact that the statute says this intent must be proven by clear and convincing evidence, an extremely strict burden of proof.

In short, OPRA has not been severely weakened. I think requestors will continue to use OPRA as extensively as they have over the past 22 years of the statute’s existence.

The present situation reminds me of the state of affairs when OPRA was originally enacted, and I was overseeing OPRA legal issues for the Attorney General’s Office. Over the first several years of the statute’s existence, we fielded countless questions, and handled many litigation matters, concerning how to interpret OPRA’s provisions. I expect public bodies throughout the State will similarly have numerous questions, and face a lot of litigation, over the meaning of the new language of OPRA.

Appellate Division: No OPRA Violation Where Custodian Was Temporarily Unable To Search For Records Due To Covid Shutdown

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In an unpublished opinion, the Appellate Division determined that a public body acted appropriately, and did not violate OPRA’s response deadline, where it told the requestor it would search for the requested records after the end of a Covid shutdown. C.E. v. Elizabeth Public School Dist. This is the first appellate opinion to deal with the effect of pandemic closures on the handling of an OPRA request.

The OPRA request was submitted to the School District in May 2020, when all District schools and offices were closed indefinitely due to Covid. As a result, the District advised the requestor, “we will respond to your request for records when circumstances allowing for the reopening of the District and access to records permit.” It explained that the search of the records sought could only be done on the premises. The District eventually provided the requested records in March 2021, shortly after being able to return to the office.

The appeal concerned the requestor’s claim for attorney fees, based on the catalyst theory–that its litigation, which it had filed in the Law Division in 2020, caused the release of records in 2021. The Appellate Division rejected this argument because the District had not refused to disclose any records; instead, its answer to the OPRA request was that it would produce responsive records when able to do so. The requestor’s litigation, said the court, did not cause the District to release the records.

The requestor attempted to avoid this conclusion by arguing that the District’s initial response should be deemed a denial of the request, because the District did not fulfill the request within OPRA’s 7-business day deadline. The court found this argument to be flawed, because the Legislature suspended this OPRA response deadline during the Covid emergency. Instead of requiring the custodian to respond within a specific time frame, the statute stated that a custodian must make a reasonable effort under the circumstances to respond. The Court concluded here that the District did make a reasonable effort, given the impact of the Covid-related closure on its ability to search for responsive records.

Supreme Court: Custodians Should Be Trained In Handling Common Law Records Requests

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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.

Supreme Court Holds That There Is No Right To Attorney Fees In Common Law Records Requests

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A successful OPRA plaintiff is entitled to an award of attorney fees, but for the past 15 years, it has not been clear whether a litigant who obtains records only under the common law right to records may be awarded attorney fees. The Supreme Court has finally resolved this important issue, holding that successful common law requestors have no entitlement to attorney fees. Gannett Sat. Info. Network v. Tp. of Neptune.

Despite the absence of any legal basis for requiring public bodies to pay a common law requestor’s attorney fees, since 2008 the courts often ordered such awards, relying exclusively on a sentence in the Supreme Court opinion in Mason v. City of Hoboken, an OPRA case. The sentence seems to say attorney fees may be awarded in common law records cases. But as I stated in this 2021 analysis, Mason did not hold, and should not be understood to suggest, that attorney fee awards are permissible in common law records matters.

In Gannett, the Court agreed; it said that the Mason opinion’s “brief allusion” to common law attorney fees was not a ruling on the question of whether they are required. In directly deciding this issue, the Gannett Court unambiguously held that attorney fees may not be awarded to a successful common law requestor.

This ruling is hugely important. OPRA’s mandatory attorney fee award provision imposes substantial costs on public bodies: not only must they pay attorney fees to successful OPRA litigants, they also incur the expense of having to litigate the attorney fee portion of the OPRA case. These costs now do not apply to common law record requests.

Does A Prolific Records Requestor Actually Exist?

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Over the past several years, the African American Data and Research Institute (AADRI) has filed numerous OPRA requests and litigated many OPRA cases, including several Supreme Court and Appellate Division cases. In all of these matters, attorney Rotimi Owoh represented the AADRI. But a current GRC case, Rotimi Owoh, Esq. o/b/o ADARI v. Bayonne, raises the claim that the AADRI is not a real entity, and instead is actually the alter ego of Mr. Owoh.

This question must be answered to determine whether the AARDI is entitled to an attorney fee award as the prevailing party in the GRC litigation. The requestor prevailed here, as the GRC determined that Bayonne did not properly respond to the OPRA request. However, under fee-shifting statutes such as OPRA, it’s clear that an attorney who litigates on behalf of himself, instead of representing a separate client, may not receive an award of attorney fees. In the GRC case, Bayonne argues that it is not liable for attorney fees because attorney Owoh, who handled the GRC litigation, was the true requestor.

Specifically, Bayonne contends the AARDI is a “sham” entity. It alleges the organization is registered at Owoh’s home address, and Owoh’s family members are the Institute’s members. Owoh disputes Bayonne’s claim that AARDI does not exist. The GRC referred the matter to the OAL to engage in fact-finding and resolve whether AARDI is an entity that is separate from Mr. Owoh.

The AARDI is entitled to an attorney fee award if it is a genuine, separate organization. But if it’s not, then there’s the unfortunate result that many public bodies have paid unwarranted attorney fees for Mr. Owoh’s work in previous OPRA cases involving the AARDI.

Appellate Division Issues Significant Published Opinion on OPRA Litigation and Attorney Fee Awards

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The Appellate Division’s January 24th opinion in Underwood Properties v. Hackensack is the first precedential court opinion on a problematic OPRA practice that often occurs: an attorney submits an OPRA request under his own name, and then the attorney’s client files a complaint over the denial of the request. The court held that the client has standing to file the OPRA litigation, despite not being identified as the requestor in the OPRA request.

Underwood is involved in lawsuits against Hackensack concerning its redevelopment plan. Separately, Underwood’s counsel submitted, under his own name, OPRA requests to the City for correspondence of various City officials. After the City denied the requests on various bases, Underwood filed a lawsuit, which resulted in some documents being released.

In the trial and appellate courts, Hackensack argued that Underwood lacked standing to file a complaint, because it was not the requestor. The trial judge rejected this argument, on the ground that counsel filed the OPRA requests on behalf of his client and within the scope of his representation. The Appellate Division agreed with this reasoning. It added that OPRA’s goal of access to public records, and the courts’ liberal standing rules, supported allowing the client to pursue the litigation.

I don’t think the general purpose of OPRA and standing policies are relevant here. As I’ve noted previously, OPRA only permits the “requestor” to file a court action challenging a denial of a request, so there’s simply no basis to permit someone who did not make the request to litigate over its denial. This problem doesn’t exist where it’s clear that the client is the requestor, and the attorney simply submitted the OPRA request on behalf of that client. But if that’s the case, the OPRA request should identify the client as the requestor.

In addition to setting the above precedent, Underwood is a useful opinion because it’s one of the few cases in recent years to deal with calculating an appropriate attorney fee award where the requestor achieves only partial success in its OPRA litigation. In 2005, the Supreme Court held that the amount of the award must be based on a “qualitative analysis” of the amount of litigation success achieved by the requestor, but there is little case law applying this analysis. In Underwood, the court upheld the trial judge’s fee award as complying with the required qualitative analysis. The trial judge reduced the amount of fees requested, from about $14,500 to $3750, due to the requestor’s limited suceess in obtaining documents and its failure to vindicate OPRA’s purpose.

Does OPRA Require An Attorney Fee Award Where The Requestor is An Attorney?

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Since OPRA’s enactment, I’ve seen a number of cases where an attorney files an OPRA request under his own name, without mentioning a client. When the attorney subsequently challenges the denial of the request, before a court or the GRC, it comes to light that the attorney submitted the request in connection with his representation of a client. If the challenge to the public agency’s OPRA request response is successful, does OPRA require that attorney fees be awarded to the client?

There’s no case law addressing this question. In my view, attorney fees cannot be awarded in this situation because the attorney, not the client, is the requestor. OPRA expressly permits attorney fees to be awarded only to the “requestor;” if an attorney is the requestor, he can’t receive attorney fees for litigating over his own request, because he is acting pro se in that case.

This issue was raised in the recent Appellate Division case Rosario v. Port Authority, but the court did not analyze it. The Appellate Division simply affirmed the trial judge, who determined that a fee award was proper because Rosario’s counsel submitted the OPRA request to the Port Authority in his capacity as the authorized agent for Rosario, who was physically unable to make the request. In addition, the Port Authority was aware of counsel’s representation of Rosario.

Where it’s clear that the OPRA request is being submitted on behalf of a specific client, as in Rosario, there’s no issue. But the availability of a fee award is questionable where a request is made by an attorney, who simply identifies himself as the requestor, and does not indicate that it is actually his client who is seeking the records requested.

The Problem of Attorney Fees Awards in Common Law Public Records Cases

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The Appellate Division recently held, in a published opinion, that attorney fees may be awarded, at a judge’s discretion, to a plaintiff who loses its OPRA case, but obtains the requested records under the common law. Gannett Sat. Info Syst. v. Tp. of Neptune. The court based this ruling on a single sentence in a Supreme Court opinion that suggests this is permissible. Although the appellate court of course had to comply with a statement by the Supreme Court, I believe the Supreme Court never intended to rule that common law records cases are an exception to the long-settled requirement that each litigant must bear its own attorney fees.

The Supreme Court opinion in question is the 2008 case of Mason v. City of Hoboken. This case involved two issues: what is the statute of limitations applicable to OPRA lawsuits, and does the “catalyst theory” of attorney fee awards apply under OPRA. In the course of discussing the latter question, the Court said:

“The parties have not addressed at length whether the question of attorney’s fees merits  different treatment in an action brought under the common law. Absent an apparent, theoretical basis for such a distinction, we conclude that the catalyst theory applies to common law suits as well.”

I briefed and orally argued the State’s position in Mason, so I’m able to say that the parties did not address the question of common law attorney fees for a simple reason: it was not presented by the case. The case exclusively involved plaintiff’s claim that she was entitled to fees under OPRA’s attorney fee provision.

And I do not understand the Court’s next sentence above to be a determination that plaintiffs who obtain records through a common law request may be entitled to attorney fees, as they are under OPRA, because such a conclusion would be completely contrary to New Jersey law. As the Mason Court itself recognized, New Jersey follows the “American Rule,” under which the prevailing litigant cannot recover attorney fees from the losing party, unless such shifting of fees is specifically permitted by statute, court rule or contract. OPRA has this fee-shifting requirement; the common law right to public records does not.

I think that if this issue were to be presented to the Supreme Court, fully briefed, the Court would conclude that the American Rule applies and prohibits common law fee awards. Perhaps the Gannett case will give the Court the opportunity to do so.

An Important New Appellate Division Opinion on OPRA and Common Law Access to Internal Affairs Records

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The Appellate Division last week issued a published opinion that deals with several issues concerning public access to the internal affairs records of police officers. Gannett Sat. Info. Network v. Township of Neptune.

The court held, consistent with recent decisions of the Supreme Court and Appellate Division, that a police officer’s internal affairs (IA) file is exempt from disclosure under OPRA. However, the court determined that this particular IA file should be disclosed under the common law. The Appellate Division agreed with the trial court that the confidentiality of such records was outweighed by the “unique” facts here; the records related to a “horrific crime” committed by the officer, and much of the information in the records had already been made public.

This is a useful reminder of a basic public records law principle: even a record that’s exempt under OPRA may nevertheless be obtained under the common law.

In its most significant ruling, the Appellate Division stated that a litigant who obtains records under the common law, rather than OPRA, may be entitled to an award of attorney fees. As discussed here, I don’t think there’s any legal basis for awarding attorney fees in common law records cases, but that’s for the Supreme Court to say.

However, in this case, the court held that plaintiff should not receive an attorney fees award. The court said such an award (unlike under OPRA) is not automatic, but rather is within the judge’s discretion. In this case, where the IA records were actually independently released by the Attorney General, the Appellate Division saw no basis to grant attorney fees to the plaintiff newspaper.

An Interesting Appellate Opinion on OPRA Attorney Fee Awards

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The Appellate Division recently issued an opinion concerning an OPRA attorney fee award. Mills v. State of New Jersey. This unpublished opinion, while not precedential, is interesting for two reasons.

First, the court substantially reduced the requested fee award due to the plaintiff’s limited success in his OPRA suit. The requestor sought hundreds of documents, plus other records, but only obtained a single, 2-page document. According to the court, such minimal “qualitative” success, in an OPRA case that did not involve complex issues, justified reducing requestor’s attorney fee award by over 80%, to only $2376.

Second, and perhaps of more importance, the court rejected the requestor’s claim that he was entitled to fees for successfully obtaining some additional documents under the common law. As I’ve previously noted (see this post), litigants often point to language in the Supreme Court’s opinion in Mason v. Hoboken as requiring attorney fee awards in common law request cases, and some judges have made such awards. But the Appellate Division here correctly rejected the argument that Mason created a right to a mandatory attorney fee award when records are obtained through common law litigation.