February 18, 2010
JOHN PAFF, PLAINTIFF-RESPONDENT,
WEST DEPTFORD TOWNSHIP, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Gloucester County, Docket No. L-1410-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 5, 2010
Before Judges Lihotz and Ashrafi.
Defendant West Deptford Township appeals from an order of the Law Division directing it to pay more than $16,000 in attorney's fees and costs to plaintiff under the Open Public Records Act ("OPRA"), N.J.S.A. 47:1A-1 to -13. We affirm.
On July 2, 2008, plaintiff John Paff made a formal OPRA request under N.J.S.A. 47:1A-5 to West Deptford Township for access to a settlement agreement in a federal lawsuit brought by Nekeisha Williams against the Township and certain named individuals. Although the settlement by its terms was confidential, the Township obtained consent from Williams and provided to Paff a copy of the general release by which it settled the lawsuit for $600,000.
Upon receiving the settlement release, Paff made a second OPRA request on July 15, 2008. He sought internal affairs summary reports of the West Deptford Police Department for 2003 through 2007, "use of force" reports pertaining to an incident on August 6, 2003, that gave rise to the lawsuit brought by Williams, and certain other documents. On July 17, 2008, the Township responded by letter that it would not disclose the reports Paff had requested because they were subject to a discovery confidentiality order entered in the federal lawsuit.
Paff filed a verified complaint on August 21, 2008, asserting that the Township had violated OPRA and the common law right of access to government records and demanding disclosure of the internal affairs reports he had requested. The Township filed an answer denying that either OPRA or the common law required disclosure of the reports. It also filed a counterclaim asserting that Paff's cause of action was frivolous and that the Township was therefore entitled to attorney's fees and costs of litigation.
Paff moved to have the matter determined summarily under Rule 4:67. On November 18, 2008, the Law Division heard argument and ruled that Paff was entitled to the documents he was seeking and also to reasonable attorney's fees and costs of litigation. By order dated December 2, 2008, the court ordered the Township to provide access to the documents within forty-five days and also dismissed the counterclaim. The Township complied with that order.
Paff applied for attorney's fees under N.J.S.A. 47:1A-6, which provides that a "requestor who prevails in any proceeding shall be entitled to a reasonable attorney's fee." See Mason v. City of Hoboken, 196 N.J. 51, 70-71 (2008). The Township opposed the motion, arguing that it should not have to pay attorney's fees because it was complying with a federal court order when it declined to disclose the records requested. By order dated January 23, 2009, the Law Division awarded to Paff attorney's fees of $15,837.50 and costs of $330. The Township appeals from that order.
Although the Township did not appeal from the earlier order of December 2, 2008, and has not provided an adequate record for our review of that order,*fn1 it continues to argue that the Law Division erred in ordering disclosure of the internal affairs reports. We disagree.
The discovery confidentiality order was entered in the federal litigation by consent of the parties. It bound the parties in that litigation to confidentiality regarding records produced in discovery that the Township deemed to be confidential. That is, the order was entered for the benefit of the Township, and its purpose was to prohibit other parties and their attorneys in the federal case from disclosing records produced in discovery, or from using those records for purposes outside the federal litigation. The order did not prohibit the Township's disclosure of government records under OPRA.
Moreover, the Township did not obtain its own Police Department's internal affairs reports through discovery in the the federal case but was already in possession of those records. The order did not pertain to the Township's other uses of its own records.
The Township cites N.J.S.A. 47:1A-1.1 in support of its argument that records subject to confidentiality by court order are excluded from the reach of OPRA's disclosure requirement. Manifestly, the Township could not exempt itself from the requirements of OPRA, or other State law, by entering into a consent order to maintain confidentiality of discovery materials it provides to litigants in a lawsuit. The confidentiality order did not nullify the Township's obligations under OPRA. If the Township had any doubts about its recourse, it should have obtained leave or clarification from the federal court to meet its statutory obligations under OPRA.
In its challenge to the award of attorney's fees, the Township argues Paff failed to prove that his OPRA complaint in the Law Division was the "catalyst" that brought about disclosure of the reports he was seeking. In Mason, supra, 196 N.J. at 73-79, the Court discussed the so-called "catalyst theory" of awarding attorney's fees where the matter is resolved before entry of a final judgment, such as by settlement. See also Teeters v. Div. of Youth and Family Servs., 387 N.J. Super. 423 (App. Div. 2006), certif. denied, 189 N.J. 426 (2007). The "catalyst theory," however, is not applicable to Paff's claim because the Law Division entered judgment in his favor. The Township did not disclose the disputed reports until the Law Division acted, and Paff's lawsuit was required to bring about that result. Paff was a prevailing party entitled to reasonable attorney's fees under N.J.S.A. 47:1A-6.
The Township has not contested the reasonableness of the amount awarded to Paff. The Law Division correctly granted Paff's motion for attorney's fees and costs.