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State of NJ - Government Records Council Email Grc

2002-08

- Final decision
- Findings and Recommendation of Executive Director

Final decision

Linda Ellen Fisher                                                        Complaint No. 2002-08
Complainant                                                     Decision Issued: June 12,2003
v.                                                                  Decision Effective: June 12, 2003
Essex County Sheriff's Office,
Custodian of Record


At its June 12, 2003 public meeting, the  Government Records Council considered Complaint #2002-08 filed pursuant to the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 et seq. This complaint alleged a denial of access to the Essex County Sheriff's Office "blotter" or "log for July 2, 2002, or if not available, a similar report." After initially denying access, the custodian consulted with the Division of Criminal Justice and fulfilled the request on April 3, 2003. Custodian contests the requestor's application for attorney fees, claiming that the requestor is not a "prevailing party" under N.J.S.A.47:1A-6.

The Council considered the Complaint, Statement of Information, submissions from the requestor dated October 12 and 30, 2002, November 15, 2002, February 10, 2003, April 11, 2003, and May 22, 2003; submissions from the custodian dated March 28, 2003 and May 20, 2003; correspondence from the Executive Director to the Requestor dated September 17, 2002; and Findings and Recommendations of the Executive Director dated June 12, 2003.

By affirmative vote of four council members on June 12, 2003, the Council adopts and incorporates herein the June 12, 2003 Findings and Recommendations of the Executive Director and hereby denies the custodian's application for fees because the requestor is not a "prevailing party" under OPRA and hereby orders the Complaint dismissed.

A copy of this Decision shall be provided to the requestor, the custodian, and all counsel of record.

Vincent Maltese, Chair
Government Records Council

I attest the foregoing is a true and accurate record of the Government Records Council.

Virginia Hook, Secretary
Government Records Council

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Findings and Recommendation of Executive Director

Linda Ellen Fisher                                                        Complaint No. 2002-08
Complainant                                                     Decision Issued: June 12,2003
v.                                                                  Decision Effective: June 12, 2003
Essex County Sheriff's Office,
Custodian of Record

Relevant Record(s) Requested: the Essex County Sheriff's Office "blotter" or log for July 2, 2002, or if not available, a similar report.
Request made: July 16, 2002
Custodian: Linda Ellen Fisher
Request denial: July 19, 2002
GRC Complaint filed: July 23, 2002

Executive Director's Recommendation

This complaint involves a request for a copy of the Essex County Sheriff's Office "blotter" or log for July 2, 2002, or if not available, a similar report. After an initial denial of access, after subsequent communications between the parties and efforts by Council staff to resolve the matter, the custodian fulfilled the request. After informally attempting to obtain attorney's fees from the custodian, requestor then applied to the Council for an award of attorney fees, claiming that the requestor is a prevailing party under the Open Public Records Act (OPRA).

The Executive Director recommends that the Council reject the claim for attorney fees based on the advice the Council has received from the Division of Law that attorney fees may be awarded only where the requestor has obtained a final decision from the GRC that the record in question must be disclosed. Since the custodian has voluntarily provided access to the record sought in its entirety, the Complaint should be dismissed.

Statements of Facts

On July 16, 2002, the requestor made an OPRA request of the County of Essex seeking among other records, the Essex County Sheriff's Office "blotter" or log for July 2, 2002. The requestor indicated that if the Essex County Sheriff's Office has no log and no blotter, then the requestor sought a copy of a police incident card, shift report or similar report for July 2, 2002. On July 19, 2002, the custodian indicated that it was not providing the document and listed as the reason "Confidential-Executive Order #69 - Loigman v. Kimmelman". The requestor filed a Denial of Access Complaint on July 23, 2002, based on the denial of the requested police log or blotter.

By letter dated October 17, 2002, the GRC notified the custodian of the Complaint. Subsequent to the filing of the Complaint, the GRC staff informally tried, but ultimately did not succeed in their efforts to assist the parties to resolve their dispute. The requestor declined formal mediation.

The requestor submitted an October 30, 2002, Amendment to the Complaint, and argued that the Sheriff's Office had waived any claim that denial was proper because the original OPRA request was unclear and that the Sheriff's Office had not met its burden of proving that the entire incident log or any portion thereof is exempt from access under OPRA.

On February 5, 2003, the custodian's attorney submitted a letter memorandum and a Statement of Information arguing that the record was properly withheld under Executive Order #69, OPRA's criminal investigation exemption and a balancing test citing to Loigman v. Kimmelman, 102 N.J. 98 (1986). The custodian also indicated that the Complaint was frivolous.

The requestor's attorney responded by letter dated February 10, 2003that the custodian had waived OPRA's criminal investigatory records exemption and even if the custodian did not waive it, it did not apply.

The custodian's counsel responded by letter dated March 28, 2002 stating that after consulting with the Division of Criminal Justice, it appeared that the access to the record could be granted. Counsel requested an adjournment to consult with the custodian. Thereafter, the custodian produced the requested record.

An April 4, 2003 letter from the requestor's attorney to the custodian's counsel acknowledged receipt of a copy of the police log and requested attorney's fees as a prevailing party under N.J.S.A. 47:1A-6. No response from the custodian was forthcoming. On April 11, 2003, the requestor's attorney submitted to the Council a request for fees arguing that his client is a prevailing party because his client won something significant, because there is a causal relationship between the filing of the Complaint and the release of the previously withheld record, and because the relief granted had some basis in the law.

The custodian's counsel submitted a May 20, 2003 letter brief arguing that the requestor did not actually prevail and that even if the requestor was found to have prevailed, an award of fees was inappropriate in the absence of a written contingency fee agreement. The custodian's attorney also alleged that Rule of Professional Conduct 1.5 supported the claim that an award of fees was inappropriate and that a contingency enhancement was not proper. He further argued that the requestor's attorney made his request for attorney's fees without waiting for a response or contacting the custodian attorney's office.

The requestor's attorney contested the arguments and statements of fact by letter dated May 22, 2003. The requestor's attorney filed a supplemental request for attorney's fees to include time for responding to the custodian's attorney's May 20, 2003 letter.

Analysis of Prevailing Party Claim

Based on advice we have received from the Division of Law, attorney fees may be awarded only where the requestor has obtained a final decision from the GRC that the record in question must be disclosed. OPRA and relevant case law do not support an award of attorney's fees where the requested record is released after a complaint is filed with the GRC but before a final administrative determination is rendered.

In support of this conclusion, New Jersey follows the general rule that each litigant bears their own counsel fees, except in those situations specifically designated by statute or court rule. North Bergen Rex Transport, Inc. v. Trailer Leasing Co., 158 N.J. 561, 569 (1999). OPRA [N.J.S.A. 47:1A-6 and 47:1A-7(f)] contains such an exception to the general rule; it provides that a "requestor who prevails in any proceeding shall be entitled to a reasonable attorney's fee."

The statute indicates that a requestor has prevailed, for purposes of receiving attorney fees, only where he receives a favorable adjudication from a court or the GRC. OPRA, at . N.J.S.A. 47:1A-6, permits a requestor to challenge a custodian's denial of access by filing a complaint with either the Superior Court or the GRC. This section of the statute further states:

If it is determined that access has been improperly denied, the court or agency head shall order that access be allowed. A requestor who prevails in any proceeding shall be entitled to reasonable attorney's fees."

OPRA makes the authority of the GRC in making these decisions clear. After expressly empowering the GRC to render final decisions regarding access to a record [N.J.S.A. 47:1A-7(e)], N.J.S.A. 47:1A-7(f) reiterates that a requestor who prevails in a GRC proceeding is entitled to a reasonable attorneys fee.

It is significant that the statutory authorization (N.J.S.A. 47:1A-6) for attorney fee awards immediately follows the sentence that provides that a court or the GRC shall issue an order requiring access if it determines that access has been improperly denied. This indicates intent to link the two concepts. Accordingly, we construe OPRA as permitting an attorney fee award only in cases where the GRC has issued an order determining that access was improperly denied.

This conclusion is consistent with case law construing all similar attorneys fee-shifting statutes. In Buckhannon Bd. and Care Home v. West Virginia Dept. of Health & Human Res., 532 U.S 598, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001), the United States Supreme Court held that a plaintiff is not a prevailing party under the Fair Housing and Americans with Disabilities Acts, and therefore is not entitled to attorney fees, without obtaining a judicial ruling. The Court expressly repudiated the "catalyst theory," under which a party is considered prevailing for fee purposes as long as its litigation caused the defendant to change the challenged policy. The Court rejected the notion that a settlement between litigants, even where the plaintiff obtains the relief sought in his complaint, is sufficient to support an award of prevailing party attorney fees. Instead, it stated that only "enforceable judgments on the merits and court-ordered consent decrees create the 'material alteration of the legal relationship of the parties' necessary to permit an award of attorney's fees." 121 S.Ct. at 1840 (citation omitted).

Although Buckhannon dealt specifically with two federal statutes, the lower courts have consistently determined that the rejection of the catalyst theory by the United States Supreme Court applies to all statutes that provide attorney fees to the prevailing party. As stated by the Third Circuit, "We read Buckhannon to reject the catalyst theory whole hog." John T. v. Delaware County Int., 318 F.3d 545, 561 (3d. Cir. 2003). The courts have held that, pursuant to Buckhannon, a Federal Freedom of Information Act (FOIA) plaintiff is entitled to fees only where he is awarded relief by a court judgment or court-ordered consent decree.

This construction of FOIA is particularly significant in that the New Jersey Supreme Court has relied on the federal courts' interpretation of FOIA in construing New Jersey's public record statute. See, e.g., Loigman v. Kimmelman, 102 N.J. 98, 106 (1986). Indeed, FOIA and OPRA share the same legislative policy in favor of presumptive public access to government records. See N.J.S.A. 47:1A-1; Union of Needletrades, supra, 202 F.Supp.2d at 282. Thus, it is appropriate to follow the FOIA cases and conclude that OPRA does not incorporate the catalyst theory with regard to attorney fees.

Analysis and Conclusion

Based on advice the Council has received from the Division of Law, attorney fees may be awarded under OPRA only where the requestor has obtained a final decision from the GRC that the record in question must be disclosed. OPRA and relevant case law do not support an award of attorney fees where the requested record is released after a complaint is filed with the GRC but before a final administrative determination is rendered.

Based on the facts of this case, the Executive Director recommends that the Council find the requestor is not a prevailing party because the custodian voluntarily released the police log and the Council did not make an adjudication that the record should be disclosed, and further recommends that the Complaint be dismissed.

Finally, the Executive Director is satisfied that this matter does not necessitate or warrant the issuance of a Preliminary Findings and Recommendation to the parties for their review and comment prior to Council consideration. This case has been the subject of extensive filings and counter filings by the parties, including a briefing of the prevailing party issue. The factual matters are clear, and all arguments concerning records accessibility under OPRA have already been submitted. Thus, it is apparent a PFR will not assist the parties in resolving the matter. Therefore, no Preliminary Finding and Recommendation is issued to the parties and these Findings and Recommendation are being provided directly to the Council for its consideration.

/s/ Marc H. Pfeiffer, Acting Executive Director
Government Records Council

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