By: Allyson Cubitt*
May 20, 2014
Public records contain important information, and there is often a need for the records to be made available to citizens and other entities such as news outlets. However, the disclosure of public records must balance the public’s interest in the information against the State’s right to confidentiality. In turn, New Jersey facilitates the disclosure of public records statutorily through the Open Public Records Act (OPRA). The law was enacted to maximize transparency and foster a more informed citizenry, thereby avoiding “the evils inherent in a secluded process.” New Jersey also furthers this public policy of governmental transparency through OPRA’s longstanding “counterpart,” the “common law right of access.”
The New Jersey Legislature recognized that adjudicating one’s right to obtain records from a governmental entity is often costly, and therefore included a mechanism within OPRA to “attract competent counsel.” Because New Jersey typically follows the “American Rule” which does not allow the “prevailing party” in a lawsuit to collect attorney’s fees from the other side, the legislature inserted into OPRA a statutory provision for fee-shifting. In other words, when a plaintiff prevails in court against a governmental entity in an OPRA request lawsuit thereby gaining access to a public record, that governmental entity is responsible for the plaintiff’s attorney’s fees. For the reasons detailed below, in addition to an OPRA claim, a plaintiff often also brings a “common law right to access” claim in the same lawsuit. However, the law is currently “unsettled” regarding fee-shifting when a plaintiff prevails solely on his “common law right of access” claim.
Before bringing suit against a governmental entity to gain access to public records, a plaintiff should have a clear understanding as to whether he will be reimbursed for his attorney’s fees should he ultimately prevail on either claim. Given not only the Supreme Court of New Jersey’s dicta on the matter, but also all of the public policy considerations involved, attorney’s fees should be awarded to a plaintiff who prevails solely on his “common law right to access” claim.
II. OPRA Records Versus Common Law Records
OPRA mandates that “government records,” with certain exceptions, should be made available “for inspection, copying, or examination by all citizens of the state for the protection of the public interest.” “Government records” are items maintained or received by an “officer, commission, agency, or authority of the State or any of its political subdivisions” during the “course of official business.” Such items include “any paper, written or printed book, document, drawing, map, plan, photograph, microfilm, data processed or image processed document, information stored or maintained electronically or by sound-recording or in a similar device, or any copy thereof.” Certain information, including, but not limited to “criminal investigatory records,” victims’ records, attorney-client or executively privileged records, and trade secrets, are deemed confidential and therefore exempt from the disclosure.
As noted above, in addition to access provided by OPRA, requestors have a “common law right of access” to government records. “The common law definition of a public record is broader” than the OPRA definition. Under the common law definition, a public record is a “written memorial [ ] . . . made by a public officer” who is authorized by law to make the record. However, the right to access this broader category of documents under the common law “is a qualified one,” and therefore a requestor “must establish an interest in the subject matter of the material,” and the requestor’s “right to access material must be weighed against the State’s interest” in maintaining the confidentiality of the material. Common law requests require a fact-sensitive, case-by-case consideration of the requestor’s interest and the governmental entity’s confidentiality concerns. Generally, if a public record is not exempt from disclosure, it must be furnished to the requestor within seven days of the request, and failure to do so is “deemed a denial of the request.”
III. Mason’s Language and Subsequent Case Law
The Supreme Court of New Jersey, in Mason v. City of Hoboken, addressed the circumstances under which the award of attorney’s fees to a plaintiff seeking access to public records pursuant to OPRA is appropriate. More precisely, the Court adopted the “catalyst theory” by interpreting the term “prevails” in OPRA § 47:1A-6 to mean that a plaintiff can recover attorney’s fees even “absent a judgment or enforceable consent decree,” if he can demonstrate “(1) ‘a factual causal nexus between plaintiff's litigation and the relief ultimately achieved; and (2) that the relief ultimately secured by plaintiffs had a basis in law.’” Following this OPRA discussion, the Court turned to attorney’s fees under the “common law right of access,” stating that “[a]bsent an apparent, theoretical basis for [treating attorney’s fees differently], we conclude that the catalyst theory applies to common law suits as well.” However, this is the Court’s only mention of an attorney’s fee award under the “common law right of access.” Unfortunately, the Court did not provide any additional guidance for future cases specifically regarding the catalyst theory’s second prong that requires relief secured by the plaintiff be based in law. Since Mason, attorney’s fees awards for plaintiffs prevailing on only common law claims has received “scarc[e] . . . treatment” by the courts.
For instance, in the unpublished decision Kahler v. New Jersey State Police, Custodian of Records, the Appellate Division held that a plaintiff was not entitled to attorney’s fees pursuant to Mason after prevailing via judgment solely on her “common law right of access” claim. The court found that there was an “‘apparent, theoretical basis’ for not applying the catalyst theory to a request for criminal investigatory records”; attorney’s fees would be awarded only if the governmental entity’s interest in the records was “‘slight or non-existent.’” Essentially, the court perceived the language in Mason pertaining to the common law claim not as mandating an award, but as permitting an award. Notably, Kahler appears to have used the “catalyst theory” framework where the plaintiff actually prevailed by judgment.
In contrast, the trial court in Paff v. Borough of Garwood found its “authority to make the [attorney’s] fee award clear under Mason” where the plaintiff prevailed solely on his common law claim. Reversing the trial court in an unpublished decision, however, the Appellate Division claimed that Mason did not stand for the proposition that attorney’s fees were warranted when a plaintiff prevails on his “common law right of access” claim. Instead, the court opined that courts must perform a “fact-sensitive inquiry on a case-by-case basis” and that here, the governmental entity had “rational reasons” to deny the plaintiff the public record. Again, it appears as though the Appellate Division used the “catalyst theory” where an actual judgment was entered against the governmental entity.
Without additional published appellate guidance, courts will continue to struggle with awarding attorney’s fees to plaintiffs who prevail solely under their “common law right of access” as there is no concrete basis in Mason—at least as the appellate panels above see it—for creating an exception to the “American Rule.” Nevertheless, because there are strong public policy grounds to do so, courts should reverse course and read Mason to mandate the award of attorney’s fees where a plaintiff prevails only on his “common law right of access” claim.
IV. Public Policy Considerations Favor Attorney’s Fees
Courts invariably cite crucial public policy reasons for the state legislature’s inclusion of a fee-shifting provision within OPRA. Fee-shifting levels the playing field when individual citizens or other entities challenge a public entity that has deeper pockets. It allows plaintiffs to attract competent attorneys to defend their statutory rights. Without this guarantee, attorneys would be less likely to take on cases where a requestor is seeking to vindicate purely a statutory right, i.e. access to public records, which does not afford the requestor damages. These reasons are equally applicable to a requestor’s claim under the “common law right of access.” Because a requestor pursuing the common law claim must have an individual or public interest in the material that outweighs the public entity’s interest in confidentiality, material released pursuant to common law claims has a proven significance to the prevailing party. Further, a requestor should be able to file a lawsuit with the support of a skilled attorney, knowing that if he prevails on either claim, he will be compensated for his legal expenses. And vice versa: attorneys should not be dissuaded from representation by the risk of prevailing only on the common law claim.
Some would argue that expecting custodians of confidential public documents to evaluate individual requests for disclosure pursuant to the “common law right to access” would create burdensome challenges. In other words, custodians would have to spend more time performing their own Loigman balancing of the interest of the requester against the interest of the public entity in maintaining confidentiality. However, the advisory handbook for records custodians published by the New Jersey Government Records Council already advises custodians to perform the balancing test. Additionally, of the few courts that looked at the issue, some expressed a fear that imposing attorney’s fees liability on public entities for improperly denying requests pursuant to the common law right would lead custodians to release confidential material too easily. However, record custodians could be trained to better evaluate requests that require balancing. Further, attorneys serve as an additional check, as they would be less willing to take on cases where they feel plaintiffs are unlikely to prevail on their common law claim and thus will not recover attorney’s fees.
Finally, the high court in Mason—perhaps not using the clearest language—appeared to hold that attorney’s fees must be awarded when a plaintiff’s lawsuit is the catalyst for the public entity’s voluntary disclosure of records under the “common law right of access.” Given the Court’s feeling in this regard, it would then also follow that when a plaintiff prevails on his common law claim by way of an actual court judgment, attorney’s fees should be awarded.
In sum, New Jersey courts should award attorney’s fees to plaintiffs who prevail on their “common law right to access” claim, but not on their statutory OPRA claim; the state judiciary is in dire need of published case law on point. Absent extenuating circumstances regarding confidentiality, individuals and entities are entitled to a fully transparent government. In this spirit, plaintiffs should be given the means to engage competent counsel to enforce their right to access records. Record custodians can be given additional training, and public entities are better suited to absorb the attorney’s fees associated with an unfavorable judicial ruling. Perhaps above all, the Supreme Court of New Jersey appeared to adopt this view in Mason.
 N.J. STAT. ANN. §§ 47:1A-1 to -13 (West, Westlaw through L. 2014, c. 2 and J.R. No. 1).
 Mason v. City of Hoboken, 951 A.2d 1017, 1025 (N.J. 2008) (quoting Asbury Park Press v. Ocean Cnty. Prosecutor's Office, 864 A.2d 446, 458 (N.J. Super. Ct. Ch. Div. 2004)).
 Drinker Biddle & Reath LLP v. N.J. Dep't of Law & Pub. Safety, Div. of Law, 24 A.3d 829, 834 (N.J. Super. Ct. App. Div. 2011).
 New Jerseyans for Death Penalty Moratorium v. N.J. Dep't of Corr., 883 A.2d 329, 338 (N.J. 2005) [hereinafter NJDPM] (quoting Coleman v. Fiore Bros., 552 A.2d 141, 143 (N.J. 1989)).
 Mason, 951 A.2d at 1028 (citing Rendine v. Pantzer, 661 A.2d 1202, 1219 (N.J. 1995)).
 Id. at 1029 (quoting § 47:1A-6) (“[A] requestor who prevails in any proceeding shall be entitled to a reasonable attorney's fee.”).
 A requestor denied access to a public record may file an OPRA action in Superior Court, but may alternatively file an action with the New Jersey Government Records Council (GRC). § 47:1A-6. Notably, the GRC has jurisdiction only to adjudicate OPRA claims, not “common law right of access” claims. Ciesla v. N.J. Dep't of Health & Senior Servs., 57 A.3d 40, 52-53 (N.J. Super. Ct. App. Div. 2012).
 N. Jersey Media Grp., Inc. v. City of Garfield, No. BER-L-1274-12, 2012 N.J. Super. Unpub. LEXIS 578, at *50 (N.J. Super. Ct. Law Div. Mar. 16, 2012).
 § 47:1A-1.
 Mason, 951 A.2d at 1025 (quoting § 47:1A-1.1).
 Id. at 1025 (quoting § 47:1A-1.1).
 Id. at 1025-26 (citing §§ 47:1A-1.1, -9).
 OPRA explicitly does not limit the “common law right of access.” § 47:1A-8.
 Mason, 951 A.2d at 1027 (citing Bergen Cnty. Imp. Auth. v. N. Jersey Media Grp., Inc., 851 A.2d 731, 734 (N.J. Super. Ct. App. Div. 2004)).
 Id. (quoting Nero v. Hyland, 386 A.2d 846, 851 (N.J. 1978)).
 Newark Morning Ledger Co. v. N.J. Sports & Exposition Auth., 31 A.3d 623, 642 (N.J. Super. Ct. App. Div. 2011).
 Mason, 951 A.2d at 1027.
 K.L. v. Evesham Tp. Bd. of Educ., 32 A.3d 1136, 1149 (N.J. Super. Ct. App. Div. 2011) (citations omitted). Courts use the six “Loigman factors” to perform the common law balancing of both interests. Educ. Law Ctr. v. N.J. Dep't of Educ., 966 A.2d 1054, 1071-72 (N.J. 2009) (quoting Loigman v. Kimmelman, 505 A.2d 958, 966-67 (N.J. 1986)).
 Mason, 951 A.2d at 1026 (quoting § 47:1A-5(i)).
 See id. at 1032-33; see generally Brian J. Molloy & Keith L. Hovey, Legal Fees Under New Jersey’s Open Public Records Act: A Guide to a Prevailing Party's Right to Recovery, N.J. LAW. MAG., Feb. 2011, at 21 (discussing Mason and attorney’s fees under OPRA).
 Id. at 1032 (citing Singer v. State, 472 A.2d 138, 141-42 (N.J. 1984)) (internal quotations omitted).
 In the end, the Court found that the facts in Mason did not entitle the plaintiff to attorney’s fees because her lawsuit was not the catalyst for receiving access to the records she requested prior to the entry of any judgment. Id. at 1034-35.
 N. Jersey Media Grp., 2012 N.J. Super. Unpub. LEXIS 578, at *51.
 Id. at *52 n.12.
 No. A-3790-09T3, 2011 WL 208285, at *2 (N.J. Super. Ct. App. Div. Jan. 25, 2011).
 Id. at *3 (quoting Loigman, 102 A.2d at 962). The Appellate Division based its distinction on policy grounds—the notion that it would be unfair to penalize a governmental entity for not balancing the opposing interests correctly. See id.
 See Mason, 951 A.2d at 1032 (“catalyst theory” utilized “absent a judgment or enforceable consent decree”).
 No. UNN-L-1089-10, 2010 WL 4603924, slip op. at 6 (N.J. Super. Ct. Law Div. Nov. 10, 2010) (trial order) (emphasis added).
 See Paff v. Borough of Garwood, A-2013-10T3, 2012 WL 5512397, at *4 (N.J. Super. Ct. App. Div. Nov. 15, 2012) (per curiam), certif. denied, 65 A.3d 261 (N.J. 2013).
 Id. (quoting Mason, 951 A.2d at 1033); accord N. Jersey Media Grp., 2012 N.J. Super. Unpub. LEXIS 578, at *50-53 (refusing to award attorney’s fees where the governmental entity’s denial was not “patently unreasonable” and “await[ing] appellate clarification”).
 The only mention of this issue in a published case is in footnote dicta in which the Appellate Division cited Mason as “appearing to accept, in the absence of briefing and argument to the contrary, that attorney's fees may be awarded in an action based on common law right to disclosure of public records.” K.L., 32 A.3d at 1147 n.3.
 See N. Jersey Media Grp., 2012 N.J. Super. Unpub. LEXIS 578, at *52-53.
 E.g., NJDPM, 883 A.2d at 338; see also § 47:1A-6 (OPRA fee-shifting provision).
 Courier News v. Hunterdon Cnty. Prosecutor's Office, 876 A.2d 806, 811 (N.J. Super. Ct. App. Div. 2005).
 Mason, 951 A.2d at 1031.
 Id. at 1031-32 (an OPRA victory means access to public records, “not civil damages”).
 Id. at 1027 (noting that a requestor must first “establish an interest in the subject matter of the material” under the common law right of access (citations omitted)); see also Educ. Law Ctr., 966 A.2d at 1071 (“The requisite interest necessary to accord a plaintiff standing to obtain copies of public records may be either a ‘wholesome public interest or a legitimate private interest.’” (citation omitted)).
 N.J. GOV’T RECORDS COUNCIL, HANDBOOK FOR RECORDS CUSTODIANS 5 (5th ed. Feb. 2011), available at http://www.nj.gov/grc/pdf/Custodians%20Handbook%20(Updated%20January%202011).pdf.
 Kahler, 2011 WL 208285, at *2-3.
 Mason, 951 A.2d at 1032.