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.