September 26, 2008
J.N., A MINOR, INDIVIDUALLY AND BY HIS PARENT AND LEGAL GUARDIAN, P.S., PLAINTIFF-APPELLANT,
MT. EPHRAIM BOARD OF EDUCATION, DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-3650-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 16, 2008
Before Judges Winkelstein and Gilroy.
Plaintiff J.N., a minor, individually and by his parent and legal guardian, P.S., appeals from the November 2, 2007 order of the Law Division, granting summary judgment to defendant Mt. Ephraim Board of Education. We affirm.
Plaintiff, a sixteen-year-old student, is domiciled within the Mt. Ephraim School District. Because plaintiff suffers from multiple disabilities, he is eligible for special education and related services pursuant to the provisions of the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1400 to § 1482. During the 2002-2003 and 2003-2004 school years, plaintiff's special education program was implemented at the Bankbridge Elementary School. During the 2004-2005 school year, P.S. became frustrated with the manner in which the Bankbridge School's faculty and administration were implementing her son's individualized education program, including the failure to assign him a one-to-one classroom aide during the school day.
Following a denial of P.S.'s request for a placement change from the Bankbridge School to the Bancroft School in Haddonfield and defendant's continued refusal to assign a one-to-one classroom aide to her son, P.S. filed a due process petition with the New Jersey Office of Special Education on March 2, 2005, and the matter was referred to the Office of the Administrative Law (OAL) as a contested case. On March 14, 2005, a scheduling conference was conducted by the assigned Administrative Law Judge (ALJ), during which the parties discussed the defendant's offer to provide a one-to-one classroom aide to plaintiff. However, the issue was not resolved. On May 5, 2005, after engaging in further settlement discussions with the ALJ, the parties reached an agreement and entered into a consent order resolving the matter.
On May 13, 2005, plaintiff filed a complaint in the United States District Court, appealing in part a March 14, 2005 decision, pursuant to 20 U.S.C. § 1415(i)(2), and seeking attorney's fees and costs as the prevailing party, pursuant to 20 U.S.C. § 1415(i)(3)(B)(i). On March 26, 2007, the district court entered summary judgment in favor of plaintiff, determining that he was the prevailing party entitled to an award of attorney's fees.
On March 28, 2007, presumably to assist in his fee application in the district court, plaintiff's counsel served a letter upon defendant, pursuant to the Open Public Records Act (OPRA),*fn2 requesting to inspect defendant's "attorney fee records (whether electronic or paper) which make reference to P.S. and/or J.N., including, but not limited to: correspondence, bills, invoices, vouchers, etc." On March 29, 2007, defendant sent plaintiff's counsel its OPRA request form. On April 2, 2007, counsel served the completed form on defendant, but defendant's offices were closed for spring break from the afternoon of Thursday April 5 through Friday, April 13, 2007.
On April 16, 2007, the first business day after spring break, Melissa Raywood, defendant's Business Administrator, advised plaintiff's counsel that the requested documents would be available for pick-up on April 18, 2007. However, the documents only included records from March 2005 through April 2006. The marshaled documents did not include records for the period from May 2006 through March 2007. On May 8, 2007, Raywood received a telephone call from plaintiff's counsel notifying her of the missing records. Raywood informed counsel that she would be out of the office after that day until the afternoon of May 11, 2007, and that she would have her secretary search for the missing records in her absence. On returning to her office on May 11, 2007, Raywood listened to a voicemail from plaintiff's counsel recorded May 9, 2007, advising that if Raywood did not contact him about the missing records by the end of that business day, he would file an enforcement action with the court.
On May 11, 2007, plaintiff's counsel filed an application for an OTSC with the district court, seeking to compel production of the missing documents, and for attorney's fees and costs, citing OPRA. On May 18, 2007, defendant mailed to plaintiff's counsel copies of legal bills for the months of June, August, October, and December 2006, and March 2007. On May 28, 2007, plaintiff's counsel received supporting vouchers for the months of June 2006 through March 2007.
On June 11, 2007, the district court heard oral argument on plaintiff's application. The court reserved decision and requested the parties to submit supplemental briefs on the issue of the court's jurisdiction to entertain the OPRA application. Defendant argued that the district court lacked jurisdiction to adjudicate the OPRA request, asserting that the New Jersey Superior Court was the proper forum. On July 12, 2007, plaintiff withdrew his district court application.
On July 13, 2007, plaintiff filed a complaint, together with a motion for summary judgment, in the Law Division under OPRA. Because it was undisputed that at the time when plaintiff filed his action in the Law Division, plaintiff had received all documents requested from defendant, the trial court determined that the matter was "merely an application for counsel fees." Defendant opposed the application and cross-moved for summary judgment, arguing that plaintiff was not entitled to attorney's fees.
On November 2, 2007, the trial court granted defendant's motion for summary judgment and denied plaintiff's cross-motion for attorney's fees,*fn3 determining that plaintiff was not a prevailing party in the Law Division proceeding, pursuant to N.J.S.A. 47:1A-6. In deciding the matter, the trial court applied the "catalyst theory," which it described as: "a plaintiff is considered a prevailing party when the actual relief on the merits of the claim materially alters the relationship between the parties by modifying the defendant's behavior in a way that directly benefits the plaintiff."
The trial court concluded that "[i]n this case, the action in [the Law Division] did not materially alter the relationship between the parties. The plaintiff already had the relationship which he sought . . . . [B]y the time he filed this lawsuit he had all [of] the documents." The court also noted that, although OPRA provides for reasonable attorney's fees to a prevailing party, N.J.S.A. 47:1A-6, it is not "the intent and purpose of [OPRA] when somebody has already received all the records which they are seeking, to then, thereafter, institute a second act[ion] solely for counsel fees." This appeal followed.
On appeal, plaintiff argues that it was reversible error for the trial court to hold that the district court had exclusive jurisdiction over his OPRA complaint. Defendant counters that plaintiff was not a prevailing party in the Law Division, and as such, is not entitled to attorney's fees and costs.
A trial court will grant summary judgment to the moving party "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c); see also Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995). "An issue of fact is genuine only if, considering the burden of persuasion at trial, the evidence submitted by the parties on the motion, together with all legitimate inferences therefrom favoring the non-moving party, would require submission of the issue to the trier of fact." R. 4:46-2(c).
On appeal, "the propriety of the trial court's order is a legal, not a factual, question." Pressler, Current N.J. Court Rules, comment 3.2.1 on R. 2:10-2 (2009). "We employ the same standard that governs trial courts in reviewing summary judgment orders." Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998).
We reject plaintiff's sole contention that the trial court held that the district court had exclusive jurisdiction over his OPRA complaint. This was not the trial court's holding. Rather, the trial court determined that "the action in [the Law Division] did not materially alter the relationship between the parties," as required for a recovery of attorney's fees under the catalyst theory. Thereafter, the court merely noted that "[i]f [plaintiff] believes he is entitled to counsel fees he should file in the forum where he made the application. That is[,] Federal Court."
Attorney's fees awarded for a violation of OPRA are governed by N.J.S.A. 47:1A-6, which provides in pertinent part:
The right to institute any proceeding under this section shall be solely that of the requestor. Any such proceeding shall proceed in a summary or expedited manner. The public agency shall have the burden of proving that the denial of access is authorized by law. 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 a reasonable attorney's fee. [(emphasis added)].
The standard to be applied by the trial court in deciding attorney fee applications under OPRA is that of the "catalyst theory" as recently enunciated by the Supreme Court in Mason v. City of Hoboken, 196 N.J. 51, 76 (2008).
In Mason, the plaintiff filed two complaints against the City of Hoboken for failing to comply with her requests for documents pursuant to OPRA, seeking not only access to the documents requested, but also attorney's fees and costs. The complaints were filed on March 4, 2004, and September 27, 2004. Mason, supra, 196 N.J. at 58-59. One day after the first complaint was filed, the City made the requested records available to plaintiff. Ibid. Believing that the matter was resolved, the parties never entered into a formal stipulation of settlement, and plaintiff did not pursue her request for attorney's fees and costs until raising the issue during oral argument on her second complaint in February 2005. Id. at 59.
In her second complaint, plaintiff sought an electronic copy of the City's 2004 introductory budget, as well as other various records. Id. at 59-60. A paper copy of the introductory budget was supplied to plaintiff before the complaint was filed and several other documents were supplied within several days of filing the complaint. Id. at 59-60. The trial court dismissed the second complaint as either time barred, pursuant to Rule 4:69-6(c), or as moot because the City had provided the records requested either during or before litigation. Id. at 61. The trial court denied plaintiff's request for attorney's fees in both actions, rejecting the "catalyst theory." Ibid.
On appeal, we affirmed. Ibid. However, as to the attorney fee issue, we determined that the catalyst theory was applicable, citing Teeters v. N.J. Div. of Youth & Family Servs., 387 N.J. Super. 423, certif. denied, 189 N.J. 426 (2007), which was decided after the trial court's dismissal. Ibid. Nevertheless, we determined that the plaintiff could not recover under the catalyst theory because "there was no settlement below and because plaintiff failed to establish that [the City] would not have acted the same way absent a lawsuit." Id. at 61-62.
On certification granted, the Supreme Court framed the issue pertaining to plaintiff's request for attorney's fees as whether the plaintiff was a "prevailing party" under N.J.S.A. 47:1A-6. Id. at 71. In answering the question, the Court adopted the catalyst theory in OPRA actions. Id. at 76. "Under the catalyst theory, plaintiffs can recover counsel fees if they are able to prove their lawsuit caused an eleventh-hour disclosure." Ibid. Absent a judgment or an enforceable consent decree in the OPRA action, the Court held that:
[R]equestors are entitled to attorney's fees under OPRA . . . when they can demonstrate:
(1) "a factual causal nexus between plaintiff's litigation and the relief ultimately achieved"; and (2) "that the relief ultimately secured by plaintiffs had a basis in law." Consistent with our case law, litigants seeking fees are required to make that showing.
We shift the traditional burden of proof to the responding agency in one category of cases: when an agency has failed to respond at all to a request within seven business days. OPRA requires that an agency provide access or a denial no later than seven business days after a request. . . . [B]ut under the terms of the statute, the agency must start that process with some form of response within seven business days of a request. If an agency fails to respond at all within that time frame, but voluntarily discloses records after a requestor files suit, the agency should be required to prove that the lawsuit was not the catalyst for the agency's belated disclosure. [Id. at 76-77 (internal citations omitted)].
The Mason standard differs slightly from the standard utilized by the trial court, that is: "a plaintiff is considered a prevailing party when the actual relief on the merits of the claim materially alters the relationship between the parties by modifying the defendant's behavior in a way that directly benefits the plaintiff." However, there is no dispute that plaintiff's complaint in the Law Division was filed after defendant had fully complied with plaintiff's OPRA request. Because defendant had responded to the OPRA request before plaintiff filed his complaint in the Law Division, there is no "factual causal nexus between plaintiff's litigation [in the Law Division] and the relief ultimately achieved." Id. at 76. Simply stated, as the trial court noted, plaintiff "already had the relationship which he sought."
Plaintiff argues that defendant only complied with his OPRA request after he had filed his OTSC in the federal court. Plaintiff contends that because he received part of the requested documents after the filing of the OTSC, that he is entitled to attorney's fees under the catalyst theory, asserting that the Law Division action was a continuance of the federal court action. We disagree. Even assuming, but not deciding, that this court could grant an award of attorney's fees for an OPRA proceeding filed in the district court, we conclude on this record that plaintiff is not entitled to an attorney's fee.
The burden of proving that the requestor was a prevailing party under the OPRA statute remains on the requestor, so long as the governmental agency responds to the request within the seven business day time period of N.J.S.A. 47:1A-5i. Id. at 76.
Under Mason all that is required of a governmental agency is that there be "some form of response within seven business days of a request," id. at 76, not that the request be fulfilled by that date. Here, plaintiff's OPRA request was served on defendant on April 2, 2007. Because defendant was closed for spring break from April 5 through April 13, 2007, the April 18, 2007 response was timely. Accordingly, we conclude that plaintiff did not satisfy the heavy burden of proving that his lawsuit in the district court was "the catalyst for defendant's release of records," Id. at 80, or said another way, plaintiff did not prove his federal court action "caused an eleventh-hour disclosure." Id. at 76.
Plaintiff contends that defendant changed its position and behavior when it produced the missing documents after the OTSC was filed. Not so. Defendant expressed its willingness to produce any missing documents during the phone conversation between plaintiff's counsel and Raywood on May 8, 2007, three days before plaintiff filed his OTSC on May 11, 2007. Accordingly, even though the missing documents were sent to plaintiff on May 18, 2007, plaintiff's filing of an OTSC in the district court did not cause defendant to produce the missing documents. See id. at 79-80 (holding that because defendant was willing to produce the requested records before the lawsuit commenced, "plaintiff's lawsuit was not the catalyst for [defendant's] release of records").
Lastly, plaintiff asserts that his request for attorney's fees is supported by Teeters, where the petitioner was found to be entitled to attorney's fees. We disagree. In Teeters, the petitioner received OPRA records requested as a result of a settlement agreement entered into with the New Jersey Division of Youth and Family Services (DYFS). Teeters, supra, 387 N.J. Super. at 432. Because DYFS declined to release various requested documents before the settlement agreement was reached, id. at 425, the court found it "[o]bvious that this very proceeding 'modif[ied] [DYFS's] behavior in a way that directly benefited [petitioner].'" Id. at 433 (citation omitted).
Here, there was no formal settlement agreement entered into in either the federal district court action or the Law Division action, as defendant had agreed to provide the missing documents before the OTSC was filed in the district court. Moreover, defendant fulfilled its commitment by providing the missing documents within several days after the OTSC was filed in the federal court. In addition, contrary to plaintiff's assertion, the trial court did not find, nor is there any proof, that defendant intentionally withheld any documents from plaintiff; the record merely reflects that various requested documents were missing from the original OPRA production. Once defendant was put on notice as to the missing documents, it offered to produce them as soon as the documents could be located.
In conclusion, plaintiff did not meet his burden of providing sufficient objective evidence, which when viewed most favorably to him, could lead a rational factfinder to conclude that the filing of the complaint in the district court caused defendant to produce the requested documents. Brill, supra, 142 N.J. at 540.