July 3, 2007
SOUTH PLAINFIELD REPUBLICAN ORGANIZATION AND ROBERT JONES, PLAINTIFFS-APPELLANTS,
VINCENT BUTTLIGLIERI, IN HIS CAPACITY AS BOROUGH CLERK AND PUBLIC RECORDS CUSTODIAN FOR THE BOROUGH OF SOUTH PLAINFIELD, THE BOROUGH OF SOUTH PLAINFIELD, DEFENDANTS-RESPONDENTS, AND DARLENE PINTO, DEFENDANT.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, MIDL-6593-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 24, 2007
Before Judges A. A. Rodríguez and Collester.
In this appeal we hold that an application for counsel fees pursuant to the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13 must be granted, even if the party requesting the public records is only partially successful.
The South Plainfield Republican Organization and its Chairman, Robert Jones (collectively "plaintiffs"), appeal from the March 31, 2006 order denying reconsideration of their request for counsel fees, pursuant to OPRA, against the Borough of South Plainfield and Vincent Buttliglieri, the Clerk and Public Records Custodian for the Borough (collectively "Borough"). We reverse.
Plaintiffs sought to obtain a copy of a settlement agreement concluding the litigation between a Borough employee, Darlene M. Pinto, and the Borough. Pinto sued the Borough and several public officials claiming, among other things, discrimination based on gender, invasion of privacy, and infliction of emotional distress. She alleged that the Borough's mayor and council members held a meeting in violation of the Open Public Meeting Act*fn1, at which her application for employment as Deputy Tax Collector was discussed. She alleges that at the meeting, council members decided not to employ her because she was a single mother who did not need the job due to a large divorce settlement. Pinto alleged that, during the meeting, Mayor Daniel Gallagher revealed the confidential terms of her divorce settlement, including the amount of spousal and child support. She also alleged that Councilman Dennis Cerami commented that because Pinto was a single mother, she would miss work when her children were sick. The settlement agreement between Pinto and the Borough called for its terms to remain confidential.
Plaintiff, Robert Jones, contacted Pinto to find out the result of the litigation with the Borough. She told him that she was not permitted to discuss the matter. Jones submitted an OPRA request for inspection of the settlement agreement and deposition transcripts, specifically, the deposition of Councilman Edward Kubala and former Council President James Vokral. After two weeks, Jones wrote to Buttliglieri to determine the status of the OPRA request. Buttliglieri responded that he was researching whether the documents could be released. Subsequently, Jones telephoned Buttliglieri, who responded that the Borough had sought an opinion from the Government Records Council*fn2 on whether the documents had to be released. Eventually, Buttliglieri responded that, on the advice of the Borough's attorney, the documents would not be released without a court order.
The Borough asserted that it was not in possession of the settlement agreement, deposition transcripts, nor any other portion of the litigation file. The Borough did not participate in, authorize, or approve the settlement. The funds for the settlement of the Pinto litigation were paid by the Middlesex County Joint Insurance Fund, an independent body, and not directly by the Borough. The only document relating to the litigation, which was in the possession of the Borough, was the stipulation of dismissal with prejudice filed with the Clerk of the Superior Court.
Plaintiffs sued the Borough and its Clerk by way of verified complaint and an order to show cause, seeking to compel the turnover of a copy of the settlement agreement and deposition transcripts. The judge granted plaintiffs' request for a copy of the settlement agreement, but denied the request for a copy of the deposition transcripts. The judge also denied plaintiffs' request for counsel fees.
Both parties moved for reconsideration. The Borough moved to dismiss the complaint due to a discovery violation. The judge denied both motions for reconsideration and dismissed the complaint.
Plaintiffs moved successfully to vacate the dismissal of the complaint and to restore the case. Plaintiffs moved for reconsideration of the partial denial of relief and counsel fees. The judge again denied plaintiffs' motion for reconsideration and counsel fees.
Plaintiffs now appeal, limiting their challenge to the issue of counsel fees.*fn3 Plaintiffs argue that because they were the prevailing parties pursuant to OPRA, they are entitled to counsel fees. We agree.
Pursuant to N.J.S.A. 47:1A-6, "[a] requestor who prevails in any proceeding shall be entitled to a reasonable attorney's fee." We note that the Legislature used the mandatory term "shall" with respect to counsel fees for prevailing requestors. It is settled that counsel fees must be awarded to a successful requestor, even when the requestor does not prevail in obtaining every document sought. See Baer v. Klagholz, 346 N.J. Super. 79, 81-82 (App. Div. 2001), certif. denied, 174 N.J. 193 (2002) (holding that claimants met the test for being a "'prevailing party' because they prevailed in their attack upon eight of the sixty regulations they challenged."). Therefore, the fact that the trial court granted disclosure only as to one document does not preclude an award of counsel fees, but it is an issue to be considered with respect to the amount of the fee.
In NJDPM v. New Jersey Dept. of Corrections, 185 N.J. 137, 154-55 (2005), the Supreme Court rejected the public agency's argument that in order to determine the amount of counsel fees, the trial court should simply rely on percentages of documents obtained in OPRA cases. The Court, citing N. Bergen Rex Transp. Inc. v. Trailer Leasing Corp., 158 N.J. 561, 574 (1999), concluded "that when a portion of a claim sought is ultimately rejected, that circumstances should be considered along with other factors . . . to determine a reasonable award of attorneys' fees." NJDPM, supra, 185 N.J. at 154-55. The Court held:
The trial court should conduct a qualitative analysis that weighs such factors as the number of documents received versus the number of documents requested, and whether the purpose of the OPRA was vindicated by the litigation. Further, as we stated in Bergen Rex, the court also should consider the factors enumerated in RPC 1.5(a), which include the novelty of the issue, the time and labor required to conclude the matter, and whether the representation precluded the attorney from undertaking other employment opportunities. Id. at 574. If, after consideration of all the relevant factors, the court concludes that the requester has obtained a high degree of success, the requester should recover the full lodestar amount. [Ibid.]
Accordingly, the March 31, 2006 order is reversed. The matter is remanded to the Law Division for the entry of an order awarding counsel fees to plaintiffs in the amount to be fixed by the judge. We do not retain jurisdiction.
Reversed and remanded.