On appeal from Superior Court of New Jersey, Law Division, Hunterdon County, Docket No. L-736-02.
The opinion of the court was delivered by: Fuentes, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lefelt, Fuentes and Falcone.
The State of New Jersey appeals from an award of counsel fees in favor of plaintiff, Courier News, pursuant to the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13. In Courier News v. Hunterdon County Prosecutor's Office, 358 N.J. Super. 373 (App. Div. 2003) (Courier I), we determined that a tape recording of an emergency 9-1-1 call, in the custody of the Hunterdon County Prosecutor's Office (HCPO) in connection with a then-active criminal prosecution, was subject to public disclosure under OPRA.
As the prevailing requestor in Courier I, plaintiff moved before us for an award of counsel fees pursuant to N.J.S.A. 47:1A-6. Given the novelty of the question, we remanded the matter to the designated OPRA judge of the vicinage for "the development of an ample record on all relevant factors." We suggested the trial judge "invite the joinder of the State, if the County contends that the State should be responsible, in whole or in part, for counsel fees." The County so contended, leading the court to grant its application to join the State as a third-party defendant.
Relying, in part, on the holding in Wright v. State, 169 N.J. 422 (2001), the vicinage OPRA judge ruled that the State was responsible for plaintiff's counsel fee award, because the HCPO had been performing a state law enforcement function when it denied plaintiff access to the tape. The State appeals from that determination. Both the State and the HCPO also appeal from the amount awarded.
After reviewing the applicable law, we reverse. We hold that as the custodian of the government record at issue here, the HCPO is responsible under OPRA to pay plaintiff's counsel fees. N.J.S.A. 47:1A-6. We decline to extend the holding in Wright, to convert what, in our view, is a clear County financial obligation under N.J.S.A. 2A:158-7, into a State expense.
Plaintiff's request under OPRA was directed to the HCPO in its administrative capacity as the custodian of the 9-1-1 tape. The fact that the tape was also evidence in a criminal prosecution does not in any way alter HCPO's custodial role under OPRA. Holding the County financially responsible for this expense also promotes the sound management of public resources.
Before we begin our analysis of the legal issues, we will briefly describe the events that have led us to this point.
On February 14, 2002, an emergency 9-1-1 telephone call was placed from the home of former professional basketball player Jayson Williams in Alexandria Township, in connection with the death of Costas Christofi. Courier I, supra, 358 N.J. Super. at 376. Law enforcement authorities investigating the death concluded that it was a homicide, and seized the tape recording of the 9-1-1 call as evidence in their criminal investigation. Ibid. A grand jury subsequently indicted Williams on various criminal charges including aggravated manslaughter. Ibid.
Because of his high profile status, the criminal case against Williams generated a great deal of media attention. On July 8, 2002, a reporter for plaintiff formally requested a copy of the 9-1-1 tape from the HCPO. Ibid. On July 10, 2002, the HCPO denied the request on the grounds that release of the tape would: (1) jeopardize the continuing investigation and prosecution of the pending case of State ...