Tag Archives: attorney fees

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.

2023 OPRA Case Law Review

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The courts issued were many OPRA case rulings during 2023, but only a handful of precedential opinions. However, the three precedential opinions resolved crucial government records law questions.

In June, the Supreme Court issued a landmark opinion, Gannett v. Neptune Tp., holding that a successful common law records requestor is not entitled to an award of attorney fees. This ruling ended decades of uncertainty as to whether common law requestors, like OPRA requestors, may demand that public bodies pay their litigation fees.

The Appellate Division issued two published opinions involving OPRA. Just before the end of the year, the court determined that the custodian had properly withheld disclosure of a body worn camera video under OPRA’s exemption for the confidentiality of law enforcement records concerning a person who has not been arrested or charged with a crime. Fuster v. Tp. of Chatham. This holding rested on the court’s resolution of an issue of first impression–it concluded that the disclosure exemptions of the body worn camera statute do not rescind other exemptions provided for in OPRA.

Lipsky v. NJ Assn of Health Plans dealt with a frequent issue for OPRA custodians–how to respond to a request for records potentially contained within employees’ cell phones. The Appellate Division ruled on a discovery dispute, holding that a party in pending litigation may not compel a non-party State agency to turn over its employees’ State-issued and personal cell phones to the party’s expert for forensic examination. This conclusion relied heavily on OPRA law. The Appellate Division emphasized that public employees have strong privacy interests in their phones’ contents, so where there’s an OPRA request for records from employees’ phones, it is improper for the agency to search the device for responsive records. Instead, to protect the privacy interests at stake, the agency must ask employees to conduct the search of their devices for responsive records.

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.

Supreme Court to Review Whether Attorney Fees May Be Awarded in Common Law Records Cases

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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.

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.

Major OPRA Case Law Expected in 2022

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This year will see at least two Supreme Court opinions on crucial public records issues.

Libertarians for Transparent Govt v. Cumberland County involves the question of whether a settlement agreement between a public body and its employee, which resolves an internal disciplinary action against that employee, is an exempt personnel record. As I’ve previously discussed, this has always been considered to be a confidential personnel record. Will the Supreme Court depart from this longstanding rule?

In the other pending Supreme Court case, Rivera v. Union County Prosecutor, the Court will determine whether police department internal affairs reports at issue, concerning alleged misconduct by a city’s police director, must be disclosed under OPRA and the common law. Since the Supreme Court held in 2020 that police internal affairs records are confidential under OPRA, it seems unlikely it will reverse that position here. I think it’s more likely that this case will focus on whether the records in question should be made public under the common law.

In addition to these Supreme Court opinions, public bodies should expect disputes and litigation related to interpreting some of the cases decided in 2021. I anticipate more claims seeking attorney fee awards for litigating common law record requests, in view of last year’s precedential opinion of the Appellate Division permitting such awards in common law cases. And the extent of OPRA’s privacy protection will continue to be a hot issue; this is currently the subject of a number of pending cases, specifically involving requests for individuals’ email addresses.