2002-36

Final Decision on Application for Fees and Custodian Violation of OPRA

At its June 12, 2003 public meeting, the Government Records Council considered Complaint #2002-36 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 portions of a recent invoice from outside counsel to the College that the custodian alleged were attorney-client privileged material. On January 24, 2003, the custodian released all portions of the description of services but for a few words. On March 7, 2003 and prior to Council adjudication of the Complaint, the custodian provided the requester access to the invoice without any redaction whatsoever. By Order dated March 13, 2003, the Council dismissed the portion of the Complaint seeking access to the invoice and ordered the parties to submit written comment on the issue of whether the requestor was a "prevailing party" pursuant to N.J.S.A. 47:1A-6 and entitled to reasonable attorney's fees.

The Council considered the submissions from the requester dated March 9, 28 and 31, 2003 seeking attorney's fees as well as adjudication of the portion of the requestor's complaint alleging the custodian violated OPRA by failing to give written reasons for the redactions in the custodian's initial response to the OPRA request. The Council also considered replies from the custodian dated March 10, 28 and 31, 2003 and the Executive Director's Findings and Recommendations 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 requestor's application for fees on the grounds that the requestor is not a "prevailing party" under OPRA; hereby finds that the custodian did not violate OPRA by failing to give written reasons for the redactions in its initial response; and hereby orders the Complaint dismissed.

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

/s/ Vincent Maltese, Chair
Government Records Council

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

/s/ Virginia Hook, Secretary
Government Records Council

Dated: June 12, 2003

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Supplemental Findings and Recommendation of Executive Director

Relevant Record(s) Requested: Most recent attorney's bill or invoice from an outside private attorney hired by PCCC
Request made: July 8, 2002
Custodian: Michael Silvestro, Vice President
Request granted with redactions: July 18, 2002
GRC Complaint filed: August 28, 2002

Executive Director's Recommendation

This addresses all the remaining open issues in the Complaint. In the Council's Final Decision on Access and Interim Order of March 13, 2003, the Council acknowledged that the Custodian had provided the requestor an unredacted copy of the attorney invoice and dismissed the portion of the Complaint seeking access. In that Order, the Council also asked the parties to address whether the requestor was a prevailing party under OPRA entitled to reasonable attorney fees.

The Executive Director recommends that the Council find that the requestor is not a prevailing party under OPRA because the custodian provided the record voluntarily and, consequently, the Council did not need to adjudicate whether the record was accessible under OPRA. The Executive Director also recommends that the Council decline to find that the Custodian knowingly and willfully violated OPRA or acted unreasonably under the totality of the circumstances based upon the requestor's claim that the custodian failed to provide adequate written justification for withholding access in the initial response to the OPRA request.

Statements of Facts

This matter is a continuation of a Complaint first considered at the March 13, 2003, public meeting of the Government Records Council. At that meeting, the Council considered Complaint #2002-36 and issued a Final Decision on Access and an Interim Order on Fees and Penalties. That Decision dismissed the portion of the Complaint seeking access to an attorney invoice and the Order required the parties to submit by March 28, 2003, written comment on the issue of whether the requestor is a prevailing party under N.J.S.A. 47:1A-6 entitled to reasonable attorney's fees.

The requestor's attorney submitted a March 28, 2003 letter arguing that his client is a prevailing party under OPRA because his client obtained the record sought, because there was a causal relationship between the filing of the Complaint and the release of the previously redacted record, and because there was a legal basis for the relief he obtained from the custodian. Requestor's counsel also claimed that the Acting Executive Director had not yet issued a F&R, nor had the Council decided his client's claim that the custodian violated OPRA by failing to give written reasons for the redactions in the initial response to the records request.

The custodian's counsel submitted a March 28, 2003 Brief arguing that the complainant was not a prevailing party under OPRA because there had been no GRC adjudication that the requestor was improperly denied access to the records. He also argued that such a GRC determination, if made, would constitute de facto rulemaking in violation of the Administrative Procedures Act.

The requestor's attorney replied by letter dated March 31, 2003 and argued that a party could prevail in "any proceeding" under OPRA, not just a proceeding in which access was awarded by the Council. The requestor's attorney rejected the custodian's claim that the invoice was being provided due to the resolution of the litigation described in the invoice and argued, instead, that the custodian provided access to the record in response to the Executive Director's March 5, 2003 Preliminary FR recommending that access be granted unless the custodian provided adequate justification for the redactions. The Requestor's counsel further argued that if a GRC Order awarding access was a prerequisite to an award of fees, attorneys would be less likely to represent less affluent requestors before the GRC than before a court and, further, that custodians could never be held accountable for willful violations of OPRA. Lastly, the attorney argued that because the Council's final decision here was an agency decision in a contested case, it would not constitute an administrative rule.

The custodian's attorney responded in a March 31, 2003 letter that N.J.S.A. 47:1A-11 provides penalties for a custodian who knowingly and willfully violates OPRA and the record in this case failed to show such a violation. He also argued that this alleged violation was de minimus. He further argued that the credibility of the requestor was called into question because the OPRA request was made by Richard Gutman and it was not until the Complaint was filed that Mr. Gutman claimed he was requesting access to the records on behalf of an alleged client, Linda Ellen Fisher.

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

The Council has received advice from the Division of Law stating that reasonable 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. Thus, the Executive Director recommends that the application for attorney fees be denied, as the requester did not obtain a final decision from the Council granting access to the record.

With regard to the requestor's complaint that the Executive Director and Council have not addressed requestor's claim that the custodian violated OPRA by failing to provide written reasons for the redactions, this issue was addressed in the Acting Executive Director's March 13, 2003 F&R which found that N.J.S.A. 47:1A-7e permits a custodian to submit to the Council any statement it chooses in response to a complaint, and further that:

• Rules of Court 4:6-2 and -3 provide for waiver of certain legal defenses relating to in personam jurisdiction and do not apply to claims of attorney client privilege;
  
• The Custodian articulated the attorney-client privilege in its July 31st letter to requester's attorney and its SOI filed November 18; and
  
• New Jersey Courts have held that failure of an attorney to claim the privilege, alone, does not result in a waiver of the privilege.

However, it should be borne in mind that the timeliness and content of the custodian's response to the OPRA request concerns custodian penalty under OPRA, and does not pertain to the requestor's prevailing party status under OPRA.

Based on the custodian's voluntary release of the attorney invoices in unredacted form the Council does not need to address whether the requested documents may have been subject to the attorney client privilege had the Complaint proceeded to an adjudication.

In light of the recommendations denying the requestor prevailing party status due to lack of GRC adjudication, the GRC does not have to address the custodian's discussion whether Mr. Gutman filed the Complaint on his own behalf or on behalf of his client.

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

Dated: June 12, 2003

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Final Decision on Access

At its March 13, 2003 public meeting, the Government Records Council considered Complaint #2002-36 filed pursuant to the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 et seq., against Passaic County Community College (PCCC). The Complaint challenged PCCC's denial of access to portions of invoices from the law firm of Tesser & Cohen describing services rendered PCCC in four different lawsuits. PCCC claimed the descriptions of counsel's work were subject to the attorney-client privilege and exempt from access pursuant to N.J.S.A. 47:1A-1.1.

The Council received copies of the Complaint; a supplement to the Complaint dated October 20, 2002; the Custodian's Statement of Information; letters from requester's attorney dated July 25, 2002, January 26, 2003 and February 14, 2003, plus their attachments; a letter from the custodian dated August 1, 2002; letters from custodian's attorney dated August 1, 2002, January 24, 2003, February 12, 2003 and March 9, 2003 plus their attachments; and the Executive Director's Findings and Recommendations dated March 13, 2003.

In the letter dated March 9, 2003, the custodian's attorney provided access to the invoices with no redactions whatsoever, thereby satisfying the OPRA request.

By the affirmative vote of five Council members, the Council hereby dismisses that portion of the Complaint seeking access to the invoices and orders the parties to submit by noon, March 28, 2003 written comment on the issue of whether the requester is a prevailing party entitled to reasonable attorney's fees.

A copy of this Order shall be served on the requester, the custodian and any legal counsel of record.

/s/ VINCENT MALTESE,
Chair Government Records Council

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

/s/ VIRGINIA HOOK,
Secretary Government Records Council

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Findings and Recommendation of Executive Director

Relevant Record(s) Requested: Most recent attorney's bill or invoice from an outside private attorney hired by PCCC
Request made: July 8, 2002
Custodian: Michael Silvestro, Vice President
Request granted with redactions: July 18, 2002 GRC
Complaint filed: August 28, 2002

Executive Director's Preliminary Recommendation

This complaint involves a request for a copy of a recent invoice to Passaic County Community College (PCCC) from outside counsel. The custodian provided detailed invoices with only a modest number of redactions intended to protect attorney-client privileged matter. The requester alleged that the custodian has provided no evidence the redaction is lawful under OPRA. There were a series communications between the parties and the Council in an effort to settle the matter resulting in the custodian voluntarily producing a copy of the invoice describing work performed by outside counsel as part of on-going litigation. After release of the Executive Director's Draft Preliminary Finding and Recommendation, the custodian provided a copy of the unredacted invoice. The custodian's attorney stated that the litigation for which the services had been rendered had concluded and that PCCC had decided to release the privileged information ; however, PCCC reserved the right to assert the privilege with respect to other OPRA requests for other invoices.

Based on the foregoing facts, the Executive Director recommends that the Council dismiss the portion of the complaint seeking access to the invoice. It is further recommended that the parties be directed to submit by a date certain, their arguments concerning the requester's claim that it is a prevailing party entitled to reasonable attorney's fees.

Statements of Facts

Requester sought, among other items, "the most recent attorney's bill or invoice from an outside private attorney" hired by PCCC. In a July 18 letter to the requester, PCCC Vice President Michael Silvestro provided copies of invoices from the law firm of Tesser & Cohen of Hackensack, New Jersey for services rendered in four different litigation matters. 1

All the invoices were dated June 11, 2002 and reflected services rendered in May and June of 2002 in each of the four lawsuits. Each invoice contained the initials of the attorney providing the services, the date the work was performed, the number of hours, and the bill amount. The custodian redacted from each invoice the entire description of the services rendered.

By letter dated July 25, the requester's attorney asked the custodian to state the legal justification for withholding the description of services. On August 1, the custodian replied that the redactions reflected material concerning "on-going litigation" protected by the attorney-client privilege which was exempt from access under N.J.S.A. 47:1A-1.1.

The GRC Complaint was filed August 28, 2002. Mediation was unsuccessful in resolving the dispute. On October 20, 2002, requester's counsel supplemented the Complaint, claiming that the custodian waived the attorney client privilege by not asserting that defense on July 18 when the records were first provided; that the custodian had not provided the Council any factual basis to conclude that the material redacted was attorney client privileged; and that, as a result, the custodian had failed to justify the withholding of access as required by N.J.S.A. 47:1A-6. Counsel attached numerous examples of invoices from other public entities' counsel, claiming that many disclosed the description of services, while others redacted only privileged material. In January 2003, GRC staff contacted the custodian in an attempt to achieve settlement and advised the custodian its Statement of Information (SOI) had not yet been received. On January 24, 2003, in an attempt to settle the matter, the custodian provided the requester copies of the invoices largely unaltered but for seven redactions, none more than several words long, along with its SOI reasserting the claim of privilege.

By letter dated January 26, 2003, requester's counsel advised the custodian that it had neither described the nature of the small amount of information still being redacted nor explained why that information consisted of privileged communications.

In a letter dated February 12, 2003, custodian's counsel characterized the redactions as "encompass[ing] names and case names… that…fall within the attorney-client privilege." The invoices do, however, reflect complete descriptions of services such as review of case management orders, identification of litigation and factual issues, preparation of witnesses, etc. as well as the names of some individuals the attorneys spoke to.
In the same letter, the custodian advised the GRC that it had orally advised the requester's attorney that the redactions were attorney-client privileged around the time the records were provided. By letter dated February 14, 2003, requester's counsel contested the claim noting that if it were true, he would not have sent his July 25th letter to the custodian asking the basis for the redactions.

A Draft Preliminary Findings and Recommendation (PFR) was issued by the Executive Director to the parties on March 5. After the PFR was issued and before the GRC convened a hearing in this matter, the custodian provided the requester on March 7 an unredacted copy of the invoice, thereby satisfying the original OPRA request. The material revealed in this last submission described the identity of individuals to whom counsel spoke or subjects of discussion with counsel. In the March 7th letter conveying the invoice, the custodian's attorney observed that the litigation underlying the invoice had concluded and that it was voluntarily providing access to privileged information in the invoice. However, the custodian stated that it was reserving the right to assert the privilege with respect to any future invoice. The requester acknowledging release of the document, and asserted that the requester was a prevailing party under OPRA and entitled to reasonable counsel fees.

Analysis and Conclusion

With regard to the requester's claim that the custodian waived the attorney client privilege by not asserting that defense when it first provided the records the Executive Director recommends that the Council should dismiss this claim. The Executive Director finds that the privilege has not been waived because N.J.S.A. 47:1A-7e permits a custodian to submit to the Council any statement it chooses in response to a complaint, and that:

• Rules of Court 4:6-2 and -3 provide for waiver of certain legal defenses relating to in personam jurisdiction and do not apply to claims of attorney client privilege;
  
• The Custodian articulated the attorney-client privilege in its July 31st letter to requester's attorney and its SOI filed November 18; and
• New Jersey Courts have held that failure of an attorney to claim the privilege, alone, does not result in a waiver of the privilege.

With respect to the denial of access claim, the records originally provided the requester were invoices for legal services rendered in connection with four different lawsuits. The custodian originally redacted the entire description of legal services rendered on the grounds that the material redacted was attorney-client privileged. The requester objected to the redactions on the grounds that the custodian provided no proof that the redactions contained privileged material and filed a complaint with the GRC.

Noticing that the requester's counsel had submitted to the GRC and custodian examples of legal invoices received from other public entities that contained redactions more narrowly tailored than those done by PCCC, GRC staff contacted the custodian's attorney in this case and asked if the custodian would be willing to attempt to settle the case and tailor its redactions more narrowly. In response, PCCC voluntarily provided the requester a large portion of the descriptions of attorney services, claiming that the few remaining redactions reflected privileged material. The material the custodian's attorney revealed to the requester described specific legal analysis performed for PCCC in each of the litigated cases, text that the Council might well have considered attorney-client privileged had the matter proceeded to adjudication.

With the release of the PFR and the unredacted invoices, the identity of individuals to whom counsel spoke or subjects of discussion with counsel was revealed. Upon review, the Council might well have considered these matters to be subject to the attorney-client privilege had the complaint proceeded to adjudication. PCCC counsel stated in the letter conveying the invoice to the requester that it had voluntarily released the invoice; that the litigation for which the services were rendered was concluded; and that PCCC reserved the right to assert the privilege with respect to any other OPRA request for any other invoice.

Given the voluntary disclosure of the unredacted invoice, the Executive Director recommends that the portion of the complaint seeking access to the invoice be dismissed. It is further recommended that the parties be directed to submit by a date certain their arguments concerning the requester's claim that it is a prevailing party entitled to reasonable attorney's fees.

/s/ Marc H. Pfeiffer,
Acting Executive Director
Government Records Council
Dated: March 13, 2003

1 Geo-Con v PCCC v Sadat Associates; Serenity Contracting v. A&A Construction Management Inc et als.; Jayson Company v. Serenity Group and PCCC et als.; and Calvary Electric v. PCCC et als.

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