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2002-15
Final DecisionJanuary 30, 2008 Government Records Council Meeting
At the January 30, 2008 public meeting, the Government Records Council (“Council”) considered the January 23, 2008 Supplemental Findings and Recommendations of the Executive Director and all related documentation submitted by the parties. The Council voted unanimously to adopt the entirety of said findings and recommendations. The Council, therefore, accepts the settlement on reasonable attorney’s fees as reached by the parties and approved by the Administrative Law Judge at the Office of Administrative Law.
This is the final administrative determination in this matter. Any further review should be pursued in the Appellate Division of the Superior Court of New Jersey within forty-five (45) days. Information about the appeals process can be obtained from the Appellate Division Clerk’s Office, Hughes Justice Complex, 25 W. Market St., PO Box 006, Trenton, NJ 08625-0006. Proper service of submissions pursuant to any appeal is to be made to the Council in care of the Executive Director at the State of New Jersey Government Records Council, 101 South Broad Street, PO Box 819, Trenton, NJ 08625-0819.
Final Decision Rendered by the Government Records Council On The 30th Day of January, 2008
Robin Berg Tabakin, Vice Chairman
I attest the foregoing is a true and accurate record of the Government Records Council.
David Fleisher, Secretary
Decision Distribution Date: February 1, 2008 Supplemental Findings and Recommendations of the Executive DirSupplemental Findings and Recommendations of the Executive DirectorJanuary 30, 2008 Council Meeting
Records Relevant to Complaint:
Requests Made: July 8, 2002 and July 29, 2002 Custodian: Christine Schroeder GRC Complaint Filed: July 29, 2002 and August 8, 2002
Background
February 28, 2007 At the February 28, 2007 public meeting, the Government Records Council (“Council”) considered the February 26, 2007 Supplemental Findings and Recommendations of the Executive Director and all related documentation submitted by the parties. The Council voted unanimously to adopt the entirety of said findings and recommendations. The Council, therefore, found this matter would be referred to the Office of Administrative Law for a determination of the amount of reasonable attorney’s fees to be awarded to the Complainant’s Counsel pursuant to N.J.S.A. 47:1A-6 and the Complainant’s objection to the Council making such determination due to the perceived conflict of interest of the Attorney General advising the Council as adjudicator and the litigant DYFS as defendant in this matter.
March 7, 2007 Council’s Interim Order distributed to the parties.
May 31, 2007 Complaints referred to the Office of Administrative Law.
January 2, 2008 Office of Administrative Law (“OAL”) Initial Decision Settlement. The parties reached a settlement on reasonable attorney’s fees that was approved by the Administrative Law Judge.
Analysis
Because a settlement of reasonable attorney’s fees was reached by the parties and approved by the Administrative Law Judge at OAL, no legal analysis is required.
Conclusions and Recommendations
The Executive Director respectfully recommends the Council accept the settlement on reasonable attorney’s fees as reached by the parties and approved by the Administrative Law Judge at the Office of Administrative Law.
Approved By: Catherine Starghill, Esq. Executive Director
January 23, 2008
[1] Represented by Richard Gutman, Esq. (Montclair, NJ). [2] Represented by DAG Christian Arnold, Esq. on behalf of the NJ Attorney General. [3] GRC Complaint No. 2002-6 [4] GRC Complaint No. 2002-15 INTERIM ORDERFebruary 28, 2007 Government Records Council Meeting
At the February 28, 2007 public meeting, the Government Records Council (“Council”) considered the February 26, 2007 Supplemental Findings and Recommendations of the Executive Director and all related documentation submitted by the parties. The Council voted unanimously to adopt the entirety of said findings and recommendations. The Council, therefore, findsthis matter will be referred to the Office of Administrative Law for a determination of the amount of reasonable attorney’s fees to be awarded to the Complainant’s Counsel pursuant to N.J.S.A. 47:1A-6 and the Complainant’s objection to the Council making such determination due to the perceived conflict of interest of the Attorney General advising the Council as adjudicator and the litigant DYFS as defendant in this matter.
Interim Order Rendered by the Government Records Council On The 28th Day of February 2007
Chairman Government Records Council
I attest the foregoing is a true and accurate record of the Government Records Council. bin Berg Tabakin, Vice Chairman & Secretary
Decision Distribution Date: March 2, 2007 Supplemental Findings and RecommendationsSupplemental Findings and Recommendations of the Executive DirectorFebruary 28, 2007 Council Meeting
Records Relevant to Complaint:
Requests Made: July 8, 2002 and July 29, 2002 Custodian: Christine Schroeder GRC Complaint Filed: July 29, 2002 and August 8, 2002
Background
May 12, 2005 Government Records Council’s (“Council”) Interim Order. At its May 12, 2006 public meeting, the Council considered the May 6, 2007 Findings and Recommendations of the Executive Director and all related documentation submitted by the parties. The Council voted unanimously to adopt the entirety of said findings and recommendations. The Council, therefore, dismissed the case on the basis that the Complainant was not a “prevailing party” and the Complainant’s Counsel is not entitled to attorney’s fees pursuant to OPRA.
May 18, 2005 Council’s Interim Order distributed to the parties.
June 22, 2005 Complainant filed a notice of appeal of the Council’s May 12, 2005 Final Decision.
August 15, 2006 The Appellate Division reversed the Council’s May 12, 2005 Final Decision and remanded the matter for a determination of reasonable attorney’s fees pursuant to the fee shifting provision provided in OPRA. That decision is reported at Cynthia Teeters v. Division of Youth and Family Services, 387 N.J. Super. 423 (App.Div. 2006).
August 15, 2006 Complainant’s Letter to the GRC. The Complainant requests that the GRC refer the matter of determining reasonable attorney’s fees to the Office of Administrative Law.
August 19, 2006 Complainant Counsel’s Services Certification. The Complainant’s Counsel certified to the services (by date) he provided to the Complainant.
September 24, 2006 Complainant’s Amended Attorney’s Fee Application submitted to the GRC. The Complainant requests an award of $167,354.60 against DYFS.
October 5, 2006 Complainant’s Attorney’s Fee Application submitted to the GRC. The Complainant requests an award of $138,148.50 against DYFS.
October 5, 2006 Complainant’s Objection to the GRC’s Representation by the Office of Attorney General. The Complainant objects to any representation of the GRC by the Office of Attorney General in the determination and adjudication of reasonable attorney’s fees. The Complainant asserts that there is a conflict of interest on the part of the Attorney General’s Office between its role as legal advisor to the adjudicator GRC and the litigant DYFS.
January 29, 2007[5] Custodian’s Letter to the GRC. The Custodian requests a briefing schedule on the issue of the determination of reasonable attorney’s fees.
February 2, 2007 Complainant’s Letter to the GRC. The Complainant requests that the GRC rule on the matter of attorney’s fees. The Complainant asserts that the Custodian has waived any objection to the Complainant’s attorney fees application by failing to submit such objection within ten (10) business days from the date of service of the attorney’s fees requested pursuant to proposed GRC Rule 2.15(d).
Analysis
OPRA provides that “[a] requestor who prevails in any proceeding shall be entitled to a reasonable attorney’s fee. N.J.S.A. 47:1A-6. In Cynthia Teeters v. Division of Youth and Family Services, 387 N.J. Super. 423 (App.Div. 2006), the Appellate Division reversed the GRC’s final decision and held that a complainant is a “prevailing party” if he or she achieves the desired result because the complaint brought about a change (voluntary or otherwise) in the custodian’s conduct. Additionally, the Court held that attorney’s fees may be awarded when the requestor is successful (or partially successful) via a judicial decree, a quasi-judicial determination, or a settlement of the parties that indicates access was improperly denied and the requested records are disclosed. Accordingly, the Court remanded the determination of reasonable attorney’s fees to the GRC for adjudication.
Conclusions and Recommendations
The Executive Director respectfully recommends the Council refer this matter to the Office of Administrative Law for a determination of the amount of reasonable attorney’s fees to be awarded to the Complainant’s Counsel pursuant to N.J.S.A. 47:1A-6 and the Complainant’s objection to the Council making such determination due to the perceived conflict of interest of the Attorney General advising the Council as adjudicator and the litigant DYFS as defendant in this matter.
Approved By: Catherine Starghill, Esq. Executive Director
February 26, 2007
[1] Complainant is represented by Richard Gutman, Esq. (Montclair, NJ). [2] Custodian is represented by DAG Christian Arnold, Esq. on behalf of the NJ Attorney General. [3] GRC Complaint No. 2002-6 [4] GRC Complaint No. 2002-15 [5] Between October 2006 and January 2007, the Custodian petitioned the New Jersey Supreme Court to hear the matter and was denied such hearing. Final Decision
At its May 12, 2005 public meeting, the Government Records Council (Council) considered the May 6, 2005 Findings and Recommendations of the Executive Director and all related documentation submitted by the parties. The Council voted unanimously to adopt the entirety of said findings and recommendations. The Council, therefore, dismissed the case on the basis that the Complainant was not a “prevailing party” and the Complainant’s Counsel is not entitled to attorney’s fees pursuant to OPRA. This is the final administrative determination in this matter. Any further review should be pursued in the Appellate Division of the Superior Court of New Jersey within forty-five (45) days. Information about the appeals process can be obtained from the Appellate Division Clerk’s Office, Hughes Justice Complex, 25 W. Market St., PO Box 006, Trenton, NJ 08625-0006. Final Decision Rendered by the Vincent P. Maltese, Chairman I attest the foregoing is a true and accurate record of the Government Records Council. Decision Distribution Date: May 18, 2005 Findings and Recommendations of the Executive DirectorCynthia Teeters GRC Complaint No. 2002-6 and 2002-15Complainant v. Division of Youth and Family Services (DYFS) Custodian of Records Records Requested:
Request made: July 8, 2002 and July 29, 2002 Background September 11, 2003 The Government Records Council (Council) referred GRC Complaint Nos. 2002-6 and 2002-15 to the Office of Administrative Law (OAL) because the Council was unable to make a determination as to access and other issues based on the Complainant and Custodian’s responses. Specifically, the OAL was to determine:
January 29, 2005 The parties reached a “Partial Settlement Agreement” (Agreement) through the OAL. The settlement agreement stipulates that:
January 29, 2005 A supplemental letter from Richard Gutman, Attorney for Complainant, to the Office of Administrative Law Judge Solomon Metzger acknowledged the parties Agreement and understood that all issues concerning access were resolved. In the letter, Complainant’s Counsel asserts that the parties’ understand that the Government Records Council is to determine the “attorney’s fees issue.” Analysis These cases are combined for purposes of addressing the issue of “prevailing party.” Whether the Complainant is a “prevailing party” pursuant to N.J.S.A. 47:1A-6 and 47:1A-7(f) as a result of the settlement agreement reached by the parties concerning access? OPRA provides that a Complainant who is a prevailing party is entitled to an attorney’s fee. Specifically, N.J.S.A. 47:1A-6 and 47:1A-7(f) states: “….A requestor who prevails in any proceeding shall be entitled to a reasonable attorney's fee.” (Emphasis added.) These cases were referred to the OAL on September 11, 2003 because the Council was unable to determine what records had been provided, what had not been provided and why in response to the Complainant’s OPRA requests. The OAL or the Government Records Council rendered no final determination on access; rather, the parties reached a settlement on all issues of access on January 29, 2005. The Complainant’s Counsel now seeks a determination from the Council on whether he is entitled to “a reasonable attorney’s fee. Attorney's fees may be awarded only when the requestor has obtained a final decision that the record in question must be disclosed. Fisher v. Essex County Sheriff's Office, GRC Case 2002-08 (Emphasis added.) The [US Supreme] 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. Fisher v. Essex County Sheriff's Office, GRC Case 2002-08 (citing 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)). (Emphasis added.) Instead, [the US Supreme Court] 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." Id. According to OAL, the parties in this case did not have a hearing but instead voluntarily "settled" the case before holding a hearing. Thus, there was no "enforceable judgment on the merits" determined or "decided" by the Administrative Law Judge. OAL procedure requires that the “settlement" become the decision, however, the ALJ did not make any determination in this case. Thus, no one "prevailed" by reason of the ALJ's decision or judgment and the Complainant’s Counsel is not entitled to attorney’s fees pursuant to OPRA. Conclusions and Recommendations The Executive Director respectfully recommends that the Council dismiss this case on the basis that the Complainant was not a “prevailing party” and the Complainant’s Counsel is not entitled to attorney’s fees pursuant to OPRA. Prepared By: Gloria Luzzatto, Assistant Executive Director Approved By: May 6, 2005 |
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