On appeal from the Superior Court of New Jersey, Law Division, Sussex County, Docket No. L-873-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 15, 2010 - Decided Before Judges Kestin and Newman.
Plaintiff Charles X. Kieffer appeals from an order denying access to a public school district employee's letter of resignation as the high school varsity baseball coach and from the amount of attorneys' fees awarded for withholding documents requested under the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, and the common-law right of access. We affirm.
The relevant facts may be summarized as follows. Plaintiff, along with other parents, were dissatisfied with the way in which the varsity baseball coach was handling the school's baseball team. He and other parents made complaints to school officials, which led to an investigation. Following the investigation, the coach was admonished for his behavior. He resigned from his coaching position in a letter of resignation of October 10, 2008.
Plaintiff made a number of requests under OPRA for documents in connection with the investigation, including a report that was generated as a result of the investigation. A lawsuit to obtain these documents, as well as for other relief, was filed on December 23, 2008.
Counsel for defendants, High Point Regional High School and High Point Regional High School Board of Education, entered the litigation at this point. The parties agreed that no documents would be disclosed until a meeting with counsel took place. There were exchanges of correspondence objecting to some of the requests, as well as the objections by plaintiff to the responses of the Board. Additional documents were provided on May 8, 2009, as a result of the communications between counsel for the parties.
A scheduling/pre-trial conference order was entered by the trial court on August 4, 2009. Counsel for the parties conferred and resolved all outstanding issues with the exception of the resignation letter and attorneys' fees. The matter was heard by Assignment Judge Bozonelis on October 23, 2009. The trial judge conducted an in camera review of the coach's resignation letter and concluded that it was confidential under OPRA and the common-law right of access. The trial judge found that this was purely a personnel matter and that there was "no information that relate[d] to any type of settlement" that would affect plaintiff's overall request. The court determined that this particular document should remain confidential under the OPRA statute, sub-section 10, and under the common-law right of access as well, weighing the public interest against the privacy and confidentiality interests involved.
In connection with plaintiff's attorneys' fee request, the trial judge indicated he was "not going to award attorney's fees for this particular issue with respect to the resignation letter because you're not a prevailing party in that regard." The attorney fee issue was submitted to the court on the basis of a certification of hourly charges and responses thereto. Plaintiff's counsel charged an hourly rate of $300 and sought remuneration for approximately sixty-four hours plus costs for a total of $19,593.35 for services rendered from September 22, 2008 through November 5, 2009.
In arguing against the hourly charge, counsel for defendants indicated that her firm's hourly charge was $150. She pointed out that the taxpayers would be paying the bill for legal fees and that the hourly rate requested by plaintiff's counsel was unreasonable in view of the fact that a Board of Education with a limited budget was the payer. Counsel for defendants also stated that there was also no proof that plaintiff's attorney's hourly rate was "consistent with what other attorneys practicing in this area charge."
In fixing the award of counsel fees of $3,831 pursuant to N.J.S.A. 47:1A-6, the trial court limited the charges from September 22, 2008, to May 8, 2009, when all of the documents were furnished, except for the coach's letter of resignation.*fn1
The amount of time expended during that period from when the first request for documents was made totaled 15.5 hours. There was also a filing fee of $200, service of process fee of $53.50, and a $90 charge for other services. The court reduced the hourly rate from $300 to $225, which was the midpoint between what defendants paid their attorney and what plaintiff's counsel's hourly charge was. The court found that it would not award attorneys' fees "with respect to the resignation letter because [plaintiff was] not a prevailing party in that regard."
On appeal, plaintiff raises the following issues for ...