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O.R. v. Hunter

June 24, 2010

O.R. ON BEHALF OF O.R. (A MINOR), PLAINTIFF-APPELLANT,
v.
GERRI HUTNER (CUSTODIAN OF RECORDS), VICTORIA KNIEWEL, (SCHOOL SUPERINTENDENT), ARTHUR DOWNS (PRINCIPAL), CHARLES RUDNICK (PRINCIPAL), DENNIS LEPOLD (PRINCIPAL), MICHAEL ZAPICCHI (PRINCIPAL) AND WEST WINDSOR PLAINSBORO SCHOOL DISTRICT, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-1415-09.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued: May 12, 2010

Before Judges Axelrad and Sapp-Peterson.

Plaintiff appeals from the trial court's October l3, 2009 order denying his request for attorney's fees arising out of an Open Public Records Act (OPRA) request for documents identifying various school district staff with Electronic Violence and Vandalism Reporting System (EVVRS) responsibilities and training. On appeal, plaintiff primarily argues he was entitled to fees under the catalyst theory because defendants did not furnish him with the requested names until after he filed the OPRA lawsuit. We affirm substantially for the reasons set forth by Judge Feinberg in her comprehensive written opinion appended to the order. We add the following comments.

On April 21, 2009, plaintiff served an OPRA request on several district employees, including Gerri Hutner, the custodian of records. Plaintiff sought the following information:

l. Records showing the number and names of West Windsor Plainsboro School District staff with EVVRS reporting responsibilities.

2. Records showing the number and names of West Windsor Plainsboro School District staff who received the required EVVRS training during the following school years.

* 2005-2006, 2006-2007, and 2007-2008 school years

Hutner responded in an April 28, 2009 letter in which she stated that, "[f]ollowing a diligent search," no such records existed.

Unsatisfied with the response, plaintiff filed a June 1, 2009 complaint and a June 4, 2009 order to show cause seeking to declare defendants' actions illegal and invalid, compel defendants to furnish plaintiff with the requested documents, and award counsel fees pursuant to N.J.S.A. 47:1A-5. Defendants filed a July 2, 2009 answer reiterating that the records plaintiff sought did not exist. To support this representation, Hutner submitted a certification in which she related that while "Rick Cave, the [d]istrict's Information Technology [IT] Officer, maintains the accounts of the administrators who use the EVVRS system . . . [t]here exists no record in the [d]istrict's possession showing the number or names of individuals with EVVRS reporting responsibilities." In addition, Hutner certified that "[w]hile the administrators with EVVRS access have received training in its use, there exists no record in the [d]istrict's possession containing the names and numbers of staff members who have received such training." Plaintiff responded by letter of July 9, 2009, additionally requesting the court to determine whether the award of counsel fees was appropriate pursuant to the fee shifting provisions of OPRA.

By letter of July 13, 2009, defendants' counsel informed the court that although OPRA does not require a public entity to create records or conduct research and although the records requested by plaintiff do not exist, upon his request as an accommodation to plaintiff, Hutner had Cave prepare a list of all EVVRS accounts maintained by the district, along with the name or names of the authorized user of each account. He attached Hutner's certification to that effect and the referenced document, which listed the district administrators in whose names the accounts were registered but did not list staff members with EVVRS training or reporting responsibilities as plaintiff had requested. All of these submissions were faxed to plaintiff.

In responsive letters of July 17 and 21, 2009, plaintiff argued, among other points, he was the "prevailing party" under the law set forth in Mason v. City of Hoboken, l96 N.J. 51, 76 (2008) and Teeters v. Division of Youth & Family Services, 387 N.J. Super. 423, 430 (App. Div. 2006), certif. denied, 189 N.J. 426 (2007), because but for the filing of the lawsuit, defendants would not have provided the document, and was thus entitled to an award of counsel fees pursuant to OPRA. He stated he would make a motion for the award of such fees "at an appropriate time." Plaintiff sent additional letters to the court on July 24 and 27, 2009.

Following oral argument on July 31, 2009, Judge Feinberg denied plaintiff's application, noting she was satisfied plaintiff made "a general request for a document that didn't exist, that was probably inartfully drawn" and defendants' "response to provide that information was beyond what [they] were required to do." On August ...


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