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.