On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-2666-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Sapp-Peterson and Fasciale.
Plaintiff, Lois Kahler, appeals from the trial court order denying her request for an award of attorney fees as a prevailing party after the court granted her request for the release of certain records pursuant to plaintiff's common law right of access to public records. We affirm substantially for the reasons expressed by Judge Linda R. Feinberg in her February 5, 2010 written opinion.
Plaintiff filed a request for criminal investigatory records in connection with the death of her daughter. Those records were being maintained by defendant, the New Jersey State Police (NJSP), as the custodian of the records. NJSP denied the request, stating that "[c]riminal investigatory records are exempt from public access" under the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13. Plaintiff thereafter commenced an action in the Law Division seeking to compel the release of the records pursuant to OPRA and under her common law right of access to public records. In addition, plaintiff sought an award of counsel fees.
Following a hearing, the court denied relief to plaintiff pursuant to OPRA, concluding that the records were properly exempted from disclosure under OPRA as "criminal investigatory records." N.J.S.A. 47:1A-1 and -1.1. The court also agreed that pursuant to Executive Order No. 48 (1968) (Executive Order), NJSP was prohibited from releasing its investigative files to a person not part of a duly recognized law enforcement agency absent a court order or order of the Governor. Ibid.; see also N.J.S.A. 47:1A-9(a). The court noted, however, that the Executive Order does not compel a finding that NJSP records are confidential but only that the court make "that determination independently according to OPRA and related case law."
The court next considered whether plaintiff was entitled to the documents pursuant to her common law right of access to public records. After determining that (1) the records were common law public documents, (2) plaintiff had an interest in knowing the circumstances surrounding her daughter's death, and (3) the State's interest in preventing disclosure did not outweigh her right of access, the court entered judgment directing that all documents at issue were "to be released, under a protective order, pursuant to [Lois Kahler]'s common law claim[,]" but that Kahler would be the "only individual to be issued copies of the . . . documents[.]"
Turning to plaintiff's request for counsel fees, Judge Feinberg rejected plaintiff's contention that Mason v. City of Hoboken, 196 N.J. 51 (2008), stood for the proposition that plaintiff, as a prevailing party, was entitled to an award of counsel fees for disclosure premised upon her common law right of access:
Under OPRA, "[i]f 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." N.J.S.A. 47:1A-6.
However, plaintiff in this case has prevailed under the common law right to access, and not OPRA. Despite plaintiff's assertion that under Mason, 196 N.J. at 5, attorney's fees should be granted under the common law claim, the court is not persuaded that such fees are warranted.
While OPRA defines a clear category of documents that the public may access as [a matter] of statutory right, the common law provides access to a vague category of documents only at the discretion of the court after an extensive weighing process.
To penalize defendants who choose to withhold documents under the assumption that they are not proper for public access would motivate custodians to release sensitive information to all requestors in order to escape potential liability, despite ...