September 26, 2008
NORTH JERSEY MEDIA GROUP INC. D/B/A SOUTH BERGENITE, PLAINTIFF-APPELLANT,
BOROUGH OF RUTHERFORD AND MARY P. KRISTON, BOROUGH CLERK AND CUSTODIAN OF RECORDS, DEFENDANTS-RESPONDENTS.
On appeal from Superior Court of New Jersey, Law Division, Bergen County, L-9376-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 12, 2007
Before Judges A. A. Rodríguez and Collester.
This is an appeal from the denial of a counsel fee application made pursuant to the Open Public Records Act (OPRA), N.J.S.A. 47:1A-6. We reverse.
The South Bergenite is a local newspaper owned by North Jersey Media Group, Inc. On September 20, 2006, Michael Lamendola, a reporter for the paper, requested from the Borough of Rutherford copies of attorney invoices for legal fees incurred by the Borough for the internal investigation and administrative hearings relating to four named Rutherford police officers. The Borough responded on October 3, 2006 that the records would have to be reviewed by the Borough attorney for "privileged information and possibly redacted" which would require payment by the newspaper of $95 as a special service charge under N.J.S.A. 47:1A-5(c) for the estimated one hour of the attorney's time.
Counsel for South Bergenite objected to the service charge because OPRA provided that the request was to be reviewed by the custodian of records, not the attorney, and that a special service charge for copies of the record could not be imposed unless "an extraordinary expenditure of time and effort is required." Subsequently, reporters of the South Bergenite learned the Borough council discussed the status of the investigation of the officers and their continued employment by the Borough in executive session on November 20, 2006, before terminating the four officers at the public portion of the council meeting. The South Bergenite editor made an OPRA request the following day for the minutes of the council's executive session. After the Borough council denied the request, plaintiff then filed a verified complaint and order to show cause on December 19, 2006, seeking production of both the legal invoices requested on September 20, 2006, and the executive session council minutes on November 21, 2006, and counsel fees.
During oral argument on the return date, Borough counsel consented to production of the council executive session minutes at no cost to plaintiff redacting only non-public information. The motion judge also adopted the holding of Courier Post v. Lenape Regional High School District, 360 N.J. Super. 191 (Law Div. 2002), that the plain language of OPRA required review and redaction be performed by the custodian of records, not the Borough attorney, and that no special service charge could be imposed since the matter involved no extraordinary expenditure of time and effort.
Having prevailed on the order to show cause, counsel for plaintiff then made application for attorney fees under OPRA. The following colloquy took place:
[PLAINTIFF'S COUNSEL]: I would also like to make an application for attorneys' fees. THE COURT: Denied. Denied. [PLAINTIFF'S COUNSEL]: May I -
THE COURT: Oh, why? I have no certification from you. I have no indication of how much time you spent. And whether the time you spent is commensurate with getting $95 back. That's my ruling.
Take an appeal if you're dissatisfied. And I reserve my right to amply (sic) my ruling why attorneys' fees should not be granted. . . .
There was no amplification of reasons by the motion judge. We find her ruling denying counsel fees was erroneous. Counsel fees under OPRA may be awarded to the prevailing party.
N.J.S.A. 47:1A-6; New Jerseyans for a Death Penalty Moratorium v. N.J. Dep't of Corr., 370 N.J. Super. 11, 13-18 (App. Div. 2004), aff'd as mod., 185 N.J. 137 (2005). A prevailing party includes a claimant who achieves the desired result by settlement. Teeters v. Div. of Youth and Family Servs., 387 N.J. Super. 432, 433 (App. Div. 2006), certif. denied, 189 N.J. 426 (2007). Here plaintiff was the prevailing party. Its request was rebuffed for both the invoices and the minutes of the executive closed session prior to the filing of the order to show cause, which resulted in the Borough's agreement to supply the minutes and the motion judge's ruling on the issue of the invoices without cost to plaintiff. Nonetheless, the motion judge denied attorneys' fees because plaintiff's counsel had not presented an affidavit of services at the hearing. This was error. Rule 4:42-9(b) states the following:
[A]ll application for the allowance of fees shall be supported by an affidavit of services addressing the factors enumerated by RPC 1.5(a). The affidavit shall also include a recitation of other factors pertinent in the evaluation of services rendered, the amount of the allowance applied for, and an itemization of disbursements for which reimbursement is sought.
The Rule clearly contemplates that an affidavit of services may be filed following the resolution of the matter. The affidavit of services is to encompass actual services performed as opposed to those anticipated or contemplated. See Pressler, Current N.J. Court Rules, comment 3.1 on R. 4:42-9 (2008). Indeed, we have held that where there is fee shifting permissible by statute, fees are awardable for the preparation of the fee application. Courier News v. Hunterdon County Prosecutor's Office, 378 N.J. Super. 539, 547 (App. Div. 2005). The motion judge should have granted plaintiff's application for counsel fees as the prevailing party and reserved on the amount until counsel submitted the requisite affidavit as well as any opposition filed by the defense. We reverse and remand with the direction that counsel for plaintiff file an affidavit of services within thirty (30) days of the filing of this opinion. Defendant may respond as to the amount requested within ten (10) days thereafter.
Reversed and remanded. We do not reserve jurisdiction.
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