The Supreme Court will decide a longstanding, problematic issue in government records law: whether a requestor who obtains records through a common law request may be awarded attorney fees.

In a 2021 opinion, Gannett v. Tp. of Neptune, the Appellate Division held that a successful common law requestor may receive an attorney fee award. However, the court denied a fee award in this case, based on the conclusion that the request was not the catalyst for the eventual release of the records in question. See this post for a summary of the opinion.

The Supreme Court granted certification in this case last week. According to the Supreme Court’s website, the Court will consider: “In this lawsuit seeking police department internal affairs records, was plaintiff entitled to attorneys’ fees and does the catalyst theory apply to a common law right of access claim?”

No court has ever squarely held that there is a legal basis for common law requestors to receive attorney fee awards. Instead, as I’ve discussed previously (in this 2021 post), the argument that common law requestors are entitled to attorney fees is based exclusively on dicta; specifically, a brief comment made in a Supreme Court opinion in a 2008 case in which the Court was considering only an OPRA request, not a common law request. In Gannett, for the first time, the Court will be able to review the common law attorney fee question fully and resolve the uncertainty over this important issue that has existed since 2008.