On appeal from the Government Records Council, 2002-6 and 2002-15.
The opinion of the court was delivered by: Kestin, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Kestin, Hoens and Seltzer.
Petitioner, Cynthia Teeters, appeals from a final decision of the Government Records Council (Council) denying an award for attorney's fees incurred in seeking access to certain public records via two complaints she filed under the Open Public Records Act (OPRA or the Act). The Council ruled that petitioner "was not a 'prevailing party' and . . . not entitled to attorney's fees pursuant to OPRA." We reverse and remand.
The matter began with petitioner's complaint filed with the Division of Youth and Family Services (DYFS) against an adoption agency for having falsely advertised that it was licensed in New Jersey.*fn1 DYFS eventually determined that the adoption agency had violated the rules of its Bureau of Licensing (Bureau), and it reported the results of its investigation to petitioner in a letter dated October 11, 2000. In the meantime, petitioner had requested a copy of the investigatory report. After repeatedly responding that the report had not been completed but would be soon, DYFS eventually declined to release it. Petitioner filed two "Denial of Access" complaints with the Council, on July 29 and August 8, 2002, alleging separate requests to DYFS for the records on July 8 and July 29, 2002, and denials on July 17 and August 8, respectively.
The first complaint, filed pro se, described the record requested as "Documents from DYFS Bureau of Licensing file on the [adoption agency involved]." That complaint described the "[r]esponse to [the] request" as "saying that I would not receive documents until August 16. I was not given the reason for the delay. This is too long of a delay and as such I consider it to be a denial."
The second complaint, also filed pro se, described the record requested as "DYFS Bureau of Licensing investigation report first requested in a letter dated October 27, 2000." That complaint described the "[r]esponse to [that] request" as follows: "The records custodian has not responded to my request within the required 7 business days."
During the period, according to petitioner, on September 1, 2000, the Bureau had licensed the adoption agency involved and had issued certificates to it in March and September of 2001, and again in March, June and July of 2002. On August 5, 2002, the Bureau issued a Notice of Revocation of Certificate of Approval following a newspaper report entitled "From 'Perverted' Web Sites To Child Adoption." On August 14, 2002, DYFS provided petitioner with what it represented as the entire file pertaining to the particular adoption agency, 496 pages of documents.
Subsequently, in a supplement to her denial-of-access complaints, petitioner, on October 16, 2002, through an attorney, asserted that portions of the file, including chronological lists, had been omitted with no expressed justification. In a formal response dated November 6, 2002, DYFS's custodian of records stated that none of the documents described existed. Nevertheless, on December 11, 2002, DYFS produced a fourteen-page chronological list and some other missing documents. The additional disclosure fell short of full compliance with petitioner's requests, however.
On February 5 and 6, 2003, the Council's Executive Director made preliminary findings and recommendations regarding the two complaints. He determined that DYFS had failed to meet OPRA's requirements and that the records petitioner requested should be provided to her immediately subject to appropriate redaction in order to effect any expressed OPRA exception. He also concluded that petitioner "is a prevailing party, entitled to reasonable counsel fees." He reserved decision on the extent to which, if any, a "custodian penalty" should be assessed.
On February 13, 2003, the Council issued its interim decisions on both complaints, effective February 28, 2003. It "[d]eferred until [its] next meeting a decision on the issue of 'prevailing party' status and the custodian penalty in this case . . . . [and] [o]rdered the custodian to provide comment" on some of the issues raised, to provide petitioner access to certain of the records sought, or to justify claims that they did not exist. In a letter response dated February 28, 2003, DYFS maintained that custodian penalties were not warranted and that petitioner was not a "prevailing party" entitled to attorney's fees under the Act. DYFS requested an evidentiary hearing.
On September 11, 2003, the Council referred petitioner's OPRA complaints to the Office of Administrative Law (OAL) for a contested-case hearing, see N.J.S.A. 52:14B-9, 10, on five specified questions, because, according to the Executive Director, "the Council was unable to make a determination as to access and other issues based on the Complainant and Custodian's responses." The Council, however, reserved to itself the determination ...