On certification to the Superior Court, Appellate Division.
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).
Two aspects of the Open Public Records Act (OPRA) are raised in this appeal: (1) the appropriate statute of limitations for filing a lawsuit in Superior Court; and (2) whether plaintiffs are entitled to attorney's fees when a government agency voluntarily discloses records after a lawsuit is filed.
From October 2003 through September 2004, Elizabeth Mason filed 125 separate requests for public records from the City of Hoboken. The two lawsuits in question involve seventeen of those requests.
Mason's first lawsuit stems from her OPRA request on February 9, 2004 for copies of Hoboken's general ledgers for 2003 and 2004. On February 20, officials informed Mason that the ledgers were not immediately available because they were in the process of being corrected, but that they should be available within two weeks. (Throughout this period, the business administrator, who assists with OPRA requests, was attending to his critically ill mother.) On March 4, 2004, Mason filed a verified complaint seeking access under OPRA and the common law right of access. The next day, during a conference with the court, defendants advised Mason that copies of the records were available to be picked up. Hoboken officials believed the matter was resolved. The parties never entered into a formal stipulation of settlement.
Mason's second lawsuit relates to fifteen OPRA requests she made from September 2003 through September 2004. On September 27, 2004, she filed a thirty-count verified complaint seeking access to the records and attorney's fees. (Half of the counts alleged OPRA violations; the other half alleged common law causes of action.) The first twenty-six counts relate to various OPRA requests for records she alleges were not timely produced. Counts 27 and 28 relate to her September 22, 2004 OPRA request for the introductory budget for 2005 in paper and electronic format. Less than one hour after her request, the City provided a paper copy and advised that the budget would be posted on the Internet in the future. Mason alleges the City improperly denied her access to the budget in electronic form. On October 19, three weeks after the complaint was filed, defense counsel advised Mason's counsel that the budget could be downloaded from the Internet. Counts 29 and 30 relate to Mason's July 20, 2004 request to review all OPRA requests for 2002, 2003, and 2004. Two days later, the City responded and arranged for Mason to begin reviewing the documents on August 10. On August 26, the City notified her that the remaining items were ready for review. She completed inspecting the documents on September 22 -- five days before filing the second suit -- and on October 15 -- eighteen days after filing the suit.
The trial court concluded that actions under OPRA and their common law counterpart are actions in lieu of prerogative writs because they essentially seek an order to force a government official to comply with a ministerial duty, and thus they are subject to the 45-day filing period of Rule 4:69-6(a). The court dismissed Counts 1 through 26 of the second complaint because they were not filed within this time limit. The court dismissed the remaining counts as moot because Hoboken had provided the records sought either during or before the litigation. The court also denied Mason's request for attorney's fees in both lawsuits. Relying on Buckhannon Bd. & Care Home v. West Virginia Dep't of Health & Human Resources, 532 U.S. 598 (2001), the court rejected the "catalyst theory" -- which requires a plaintiff to establish that her lawsuit brought about the desired result and had a basis in law -- and found that Mason was not a prevailing party.
The Appellate Division affirmed, explaining that OPRA requires matters to proceed expeditiously, but not necessarily as summary proceedings under R. 4:67. With regard to attorney's fees, the panel noted that Teeters v. Div. of Youth & Family Servs., 387 N.J. Super. 423 (App. Div. 2006), recently adopted the catalyst theory and distinguished Buckhannon. The panel found that Mason could not prevail under the catalyst theory because there was no settlement below and because Mason failed to establish that Hoboken would not have acted the same way absent a lawsuit. The Supreme Court granted plaintiff's petition for certification. 192 N.J. 72 (2007).
HELD: OPRA and common law right of access actions filed in Superior Court have a 45-day statute of limitations. Requestors qualify for attorney's fees under OPRA and the common law if they can show that the lawsuit was causally related to the relief obtained and the relief had a basis in law. The burden of proof shifts to the agency if it failed to respond at all to a request within seven business days. Applying those standards here, plaintiff is not entitled to attorney's fees.
1. OPRA declares that government records shall be readily accessible for copying or examination. Certain records, such as budgets, should be provided immediately on request. Requests for other records must be granted or denied within seven business days. Failure to timely respond is deemed a denial. If a request would substantially disrupt agency operations, a records custodian may deny it after attempting to reach a reasonable solution with the requestor. OPRA also establishes an informal mediation program to resolve disputes before the Government Records Council (GRC). (pp. 14-16)
2. If access is denied, a requestor may file an action in Superior Court or a complaint with the GRC. Proceedings "shall proceed in a summary or expedited manner." OPRA's predecessor, the Right to Know Law (RTKL), stated that requestors could seek relief by way of an action in lieu of prerogative writs. OPRA does not refer to prerogative writ actions and instead defers to this Court to adopt whatever court rules it deems necessary to effectuate OPRA's purposes. (pp. 17-18)
3. Under the common law, the definition of a public record is broader than the definition contained in OPRA, but requestors must make a greater showing: The person seeking access must establish an interest in the subject matter of the material, and the citizen's right to access must be balanced against the State's interest in avoiding disclosure. (pp. 18-19)
4. To determine the Legislature's intent, the Court gives the words of the statute their ordinary meaning. The Legislature plainly stated that OPRA actions shall proceed in a summary manner. By specifically deferring to the Court to adopt rules necessary to effectuate OPRA's purposes, the Legislature unambiguously left the Court the task of fixing the proper statute of limitations for OPRA actions. (pp. 19-20)
5. Historically, RTKL actions were subject to a 45-day statute of limitations. Also, OPRA's framework calls for quick action in a number of areas, such as requiring an agency to respond rapidly to a request. The public and governmental bodies are logically entitled to have any disputes brought and addressed in the same rapid manner. A requestor should be required to make a prompt decision whether to file suit, to provide certainty and repose to public bodies. Thus, requestors who choose to file an OPRA or common law right of access action in Superior Court must do so within 45 days. (pp. 20-22)
6. Under OPRA, a requestor who "prevails" in a proceeding is entitled to a reasonable attorney's fee. Mason argues that if an agency first produces records, for whatever reason, after the filing of an OPRA action, the requestor should be presumed to have prevailed. Defendants rely on Buckhannon, in which the United States Supreme Court held that a plaintiff must obtain a judgment or enforceable consent decree to be a prevailing party. New Jersey law follows neither of those polar positions. (pp. 23-26)
7. New Jersey courts have long recognized the catalyst theory. In 1984, the Court adopted a two-part test for the meaning of the term "prevailing party": (1) the plaintiff's litigation efforts must be a necessary factor in obtaining the relief; and (2) the relief had a basis in law. In 2000, the Appellate Division applied the catalyst doctrine and noted that the form of the judgment is not conclusive; rather, courts must look to whether a lawsuit acted as a catalyst that prompted the defendant to correct an unlawful practice. In 2006, after the trial court's decision in this case, the Appellate Division decided Teeters. In Teeters, the Division of Youth and Family Services (DYFS) declined to release records requested by the plaintiff. After the GRC preliminarily found in the plaintiff's favor, the parties reached a settlement agreement. The Appellate Division held that the plaintiff was a prevailing party entitled to attorney's fees because her complaint brought about a change in DYFS's position, and she received a favorable result through the settlement reached. The panel distinguished Buckhannon, finding that New Jersey's statutes and court decisions support a more indulgent view of claims for attorney's fees. (pp. 26-29)
8. OPRA contains broader language on attorney's fees than the former RTKL did. OPRA mandates, rather than permits, an award of fees to a prevailing party. It also eliminates the $500 cap on fees. Another reason the catalyst theory should apply to OPRA is to avoid the potential for abuse should an agency deny access, vigorously defend against a lawsuit, and then disclose documents at the eleventh hour to avoid entry of a court order and the resulting award of fees. (pp. 30-31)
9. Requestors are entitled to attorney's fees under OPRA, absent a judgment or an enforceable consent decree, when they demonstrate: (1) a factual causal nexus between their litigation and the relief ultimately achieved; and (2) that the relief they obtained had a basis in law. When the agency failed to provide any form of response within seven business days of the request, the burden shifts and the agency must prove that the lawsuit was not the catalyst for its belated disclosure. (pp. 31-32)
10. There are sound reasons for not providing a rebuttable presumption that a requestor has "prevailed" whenever a defendant discloses records after a complaint is filed. OPRA is designed to promote prompt access and to encourage requestors and agencies to work together. A rebuttable presumption could upend the cooperative balance OPRA strives to obtain. Under such a rule, plaintiffs would have an incentive to file suit immediately based on an expectation of fees; and agencies might not disclose documents voluntarily after the filing of a suit because they would be presumed liable for fees. (pp. 32-35)
11. Applying those standards here, Mason is not entitled to attorney's fees in either lawsuit. In the first matter, Hoboken responded eight business days after her request. Defendants carried their burden of proving that Mason's lawsuit was not the catalyst for their release of records: the records were not immediately available because they were being corrected; the business administrator was attending to his critically ill mother, which complicated the City's response efforts; and the business administrator certified that the records would have been provided on the same day absent any lawsuit. (pp. 36-37)
12. Turning to the second lawsuit, the City immediately supplied Mason with a paper copy of the requested budget on September 22, 2004, and advised her than an electronic copy would be placed on the Internet at a future time. The Internet posting occurred by October 19, 2004, consistent with a City ordinance adopted in August 2004, one month before Mason's request. The record does not suggest a causal relationship between plaintiff's complaint and the Internet posting. Also, within two days of Mason's request, the parties made arrangements for her to review all OPRA requests for 2002, 2003, and 2004. She started reviewing them before filing the second lawsuit, and concluded her review eighteen days after filing suit. Because Hoboken agreed to Mason's request before she even filed suit, she cannot establish that her lawsuit entitles her to fees under the catalyst theory. Nothing in the record suggests that the final day of review would not have occurred absent the lawsuit. (pp. 37-38)
The judgment of the Appellate Division is AFFIRMED AS MODIFIED.
JUSTICES LONG, LaVECCHIA, ALBIN, WALLACE and HOENS join in CHIEF JUSTICE RABNER's opinion. JUSTICE RIVERA-SOTO did not participate.
The opinion of the court was delivered by: Chief Justice Rabner
The Open Public Records Act (OPRA) plainly identifies its purpose at the outset: to insure that government records, unless exempted, are readily accessible to citizens of New Jersey for the protection of the public interest. N.J.S.A. 47:1A-1. To accomplish that aim, OPRA sets forth a comprehensive framework for access to public records. Among other things, the Act outlines a swift timeline for disclosure of records and sets forth different procedures to challenge decisions denying access. Two aspects of the statute are raised in this appeal: (1) the appropriate statute of limitations for filing a lawsuit in Superior Court; and (2) whether plaintiffs are entitled to attorney's fees when a government agency voluntarily discloses records after a lawsuit is filed.
In light of the statute's history and purpose, as well as longstanding New Jersey precedent, we find that OPRA actions have a 45-day statute of limitations, consistent with actions in lieu of prerogative writs. We also conclude that requestors may qualify for attorney's fees under OPRA if they can show that their lawsuit was causally related to securing the relief obtained and that the relief granted had some basis in law. Consistent with our case law, requestors have that burden of proof. However, when an agency has not responded at all to a request within seven business days, the burden of proof shifts to the government agency.
Applying those standards, plaintiff is not entitled to fees. We, therefore, affirm the judgment of the Appellate Division as modified.
This appeal involves two separate lawsuits filed by plaintiff Elizabeth Mason and consolidated by the Appellate Division. Plaintiff is a Hoboken resident who is no stranger to OPRA or Hoboken's records custodians. During a period of about one year beginning in October 2003, she filed 125 separate requests for public records. Seventeen of those requests underlie the lawsuits in question.
Defendants are the City of Hoboken; James Farina, the City Clerk; Robert Drasheff, the city's business administrator; and Alfred Arezzo, the city's construction official. Farina's duties include serving as custodian of public and government records for the City of Hoboken.
Plaintiff's first lawsuit stems from her OPRA request on February 9, 2004 for copies of Hoboken's general ledgers for fiscal years 2003 and 2004. On February 20, Hoboken officials faxed Mason a memo written by defendant Drasheff explaining that the ledgers were not immediately available because they were in the process of being corrected. The memo advised that the 2003 ledger should be available a week later, by February 27, and the 2004 ledger one week after that. (Throughout this period, defendant Drasheff was attending to his critically ill mother who passed away on March 3, 2004. Because of his personal obligations at the time, Drasheff was unable to carry out all his duties as business administrator, which included assisting with OPRA requests relevant to his position.) Mason responded in writing reiterating her request for both ledgers in the form they existed on the date of the original request. On February 27, Mason visited the City Clerk's office and renewed her request to see both ledgers. They were not available.
On March 4, 2004, plaintiff filed a verified complaint seeking access to the ledgers under OPRA and the common law. The next day, the trial court held a telephone conference with the parties. During the conference, defendants advised plaintiff that copies of the requested records were available to be picked up. Plaintiff caused someone to retrieve them two or three days later, and Hoboken officials believed the matter was resolved. The parties never entered into a formal stipulation of settlement.
Plaintiff raised the issue of attorney's fees for the first time the following year, in February 2005, during oral argument on her second complaint. She asserted that she was entitled to attorney's fees as a prevailing party under OPRA. The trial court denied her request, and the Appellate Division affirmed.
Plaintiff's second lawsuit relates to fifteen particular OPRA requests she made from October 2003 through September 2004. Plaintiff filed a thirty-count verified complaint on September 27, 2004, seeking access to all of the records requested, attorney's fees, costs, and civil penalties. (Each odd-numbered count alleges an OPRA violation; even-numbered counts set forth corresponding causes of action under the common law right of access.)
For reasons that follow, the last four counts merit closer attention. Counts 27 and 28 relate to plaintiff's September 22, 2004 OPRA request for Hoboken's "Introductory Budget (in paper format) and electronic format" for 2005. Less than one hour after plaintiff made the request, Hoboken officials supplied her with a paper copy of the document. They also advised her that the budget would be available on the Internet at an indeterminate future time.
Plaintiff's September 27, 2004 complaint alleges that the failure to supply her with an introductory budget in electronic form denied her access to records to which she was entitled. Approximately three weeks later, on October 19, defense counsel advised plaintiff's counsel that the requested information was available on the Internet and could be downloaded.
Counts 29 and 30 are based on plaintiff's July 20, 2004 request "[t]o review all OPRA Requests for 2002, 2003, [and] 2004." Hoboken responded two days later, and the parties arranged for Mason to begin reviewing the OPRA requests on August 10. On August 26, a Hoboken official notified Mason that the balance of the items was ready for review. Plaintiff completed inspecting the documents on September 22 ...