July 30, 2012
JOHN P. SCHMIDT AND MICHAEL WALTERS, PLAINTIFFS-RESPONDENTS,
CITY OF GLOUCESTER CITY, KATHY JENTSCH, IN HER OFFICIAL CAPACITY AS CITY OF GLOUCESTER CITY CLERK AND RECORDS CUSTODIAN, DEFENDANTS-APPELLANTS.
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-1287-11.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: April 18, 2012 -
Before Judges Axelrad and Sapp-Peterson.
The City of Gloucester City (City) and Kathy Jentsch, in her official capacity as Gloucester City Clerk and Records Custodian (collectively defendants) appeal three trial court orders: (1) granting plaintiffs' motion for attorney's fees as the prevailing party in their claim under the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13; (2) granting plaintiffs' motion to dismiss defendants' counterclaims; and (3) granting plaintiffs' motion for attorney's fees on the motion to dismiss. Defendants argue, in part, that they were in violation of the Open Public Meetings Act (OPMA), N.J.S.A. 10:4-6 to -21, rather than OPRA, so statutory attorney's fees were not authorized, and alternatively challenge the enhanced fee. They further argue that fees on the subsequent motion were not warranted as they had filed a stipulation of dismissal. We affirm the grant of fees but reverse the enhancement.
In January 20ll, plaintiffs John P. Schmidt and Michael Walters, residents of Gloucester City, submitted separate written OPRA requests to defendants. Schmidt submitted two written requests to view, among other things, the following: minutes from several executive session meetings occurring in 2008 and 2010, a list of members of the City's Mayor's Advisory Committee, and a copy of the public notice and meeting minutes from a Mayor and Council meeting held on January 2, 2011. Jentsch provided a written response, attaching some of the requested minutes, but denying access to others that were "not yet approved," or were "not  government record[s]" and stated that no meeting was held on January 2, 2011. Walters requested minutes from the City's Fire Advisory Committee session meetings from 2007 to 2010. In her written response to this request, Jentsch stated that there were "no such records."
On or about February 22, 2011, plaintiffs filed a verified complaint and order to show cause alleging defendants violated OPRA, OPMA, and the common law right to public access.*fn1
Plaintiffs primarily alleged defendants violated OPRA by denying them access to: (1) executive session meeting minutes of the governing body from January 1, 2008 to December 31, 2008, five sets for 2009, and from June 2010 to December 2010; (2) meeting minutes of the Mayor's Advisory Committee from January 1, 2010 to December 31, 2010 and a list of the 2010 committee members; and (3) the meeting minutes of the Fire Advisory Committee from October 2007 to October 2008 and from December 2009 to December 2010. As to their OPMA claims, plaintiffs alleged defendants did not timely approve or release executive session meeting minutes to the public; specifically, on January 20, 2011, they approved twenty-two sets of executive session meeting minutes for 2008 and eighteen sets of executive session meeting minutes for 2010 but had not yet approved or released five sets of executive session meeting minutes from 2009. Plaintiffs also asserted a violation of the common law right of access.
Plaintiffs sought an order, in large part: (1) requiring defendants to provide them with access to all of the requested documents; (2) enjoining them from violating OPMA; (3) declaring that their practices constituted violations of OPMA; and (4) requiring they adopt a policy to promptly approve and release executive session meeting minutes in compliance with OPMA. Plaintiffs also requested reasonable attorney's fees and costs of suit under OPRA and the common law right of access.
The Law Division judge allowed the matter to proceed in a summary manner pursuant to OPRA, N.J.S.A. 47:1A-6, and set the return date for April 13, 2011. Defendants filed a certification by Jentsch, who explained that the reason certain minutes from 2009 and 2010 were not approved was the fault of the prior City Clerk, and since his departure, she had "been diligently working on straightening out the disarray concerning meeting minutes." She also certified that there was litigation pending between him and the City. Regarding certain minutes in 2010 and 2011, she noted that they had "not yet been approved as they contain[ed] matters still confidential." Finally, she stated she did not have, nor had she heard of, any minutes from the Mayor's Advisory Committee meetings. She also certified that in January and February of 2011, Schmidt and Walters had filed eighty-seven and sixty-seven OPRA requests to the City, respectively. Schmidt filed a responding certification that noted the cursory nature of some of the executive board minutes he received in response to his requests and his ongoing struggle to receive minutes of certain executive session meetings.
On April 13, defendants filed responsive pleadings. In their counterclaim, they alleged plaintiffs' 154 OPRA requests in the first two months of the year was "harassment" and had no "legitimate purpose." They demanded judgment declaring that plaintiffs' actions constituted a substantial disruption of the agency's operations under N.J.S.A. 47:1A-5(g), and sought the court's directive in "controlling and regulating plaintiffs['] OPRA requests" and "limiting plaintiffs['] use of OPRA for legitimate purposes."
At oral argument on the return date, the parties agreed that by the April 21, 20ll council meeting, the governing body would finalize and release those minutes plaintiffs still had not received, in redacted form, or provide reasons why confidentiality of certain records was still necessary. The judge determined there was insufficient evidence to conclude that the advisory committees were created by the governmental entity and dismissed with prejudice plaintiffs' OPRA requests regarding the Fire and Mayor's Advisory Committees. At the conclusion of argument, defendants raised their counterclaim issue and plaintiffs made an oral motion to dismiss. However, the judge declined to hear argument regarding the counterclaim as it was only filed that morning, and he had not yet received it. The judge made no findings that any of defendants' acts violated OPRA and left open the issue of attorney's fees for further briefing.
The memorializing order of May 2, 2011, in pertinent part:
(1) dismissed with prejudice plaintiffs' OPRA claims respecting the advisory committees; (2) required Council to make its "best efforts" to approve on April 21, 2011, draft executive session meeting minutes for the 2008 and 2009 years that were not previously approved and provide plaintiffs with any unapproved draft executive session meeting minutes by April 28, 2011; (3) required defendants to release to plaintiffs by April 21, 2011, the June through December 2010 executive session meeting minutes subject to redaction with explanation; (4) directed the City Clerk to draft and present to Council for approval the minutes of any meeting within thirty days after such meeting (where there is a quorum); (5) specified that a quorum should not meet without compliance with OPMA; and (6) set the briefing schedule for plaintiffs' application for attorney's fees under OPRA.
On April 27, 2011, plaintiffs filed an application for attorney's fees, accompanied by supporting documentation. Defendants filed opposition. According to a certification of plaintiffs' attorney, as a direct result of the judge's order, on April 21, 2011, defendants approved and provided plaintiffs with twenty-two sets of executive session meeting minutes for 2008, and ten sets of executive session meeting minutes for 2010. Plaintiffs requested an attorney's fee award for 20.7 hours at $225 per hour plus a twenty-five percent contingency enhancement. Defendants filed opposition, arguing plaintiffs did not prevail on their OPRA claims against them to warrant an award of attorney's fees under the statute.
On May 27, 2011, the court entered its findings on the record, memorialized in an order of the same date. The court found plaintiffs were the prevailing party under OPRA and awarded them the requested attorney's fees, including the twenty-five percent enhancement, totaling $5821.87, plus costs of $123.69.
On or about May 14, 2011, plaintiffs filed a motion to dismiss the counterclaim and for attorney's fees, returnable on June l0. On June 3, 2011, defendants filed a stipulation of dismissal of the counterclaim signed only by defense counsel, and urged that plaintiffs' motion was moot. In a June 6 response to the court, plaintiffs requested the court dismiss defendants' counterclaim "with prejudice," noting the stipulation was silent on this point. In an oral decision and memorializing order on the return date, the court granted plaintiffs' motion to dismiss the counterclaim with prejudice and awarded plaintiffs attorney's fees as the prevailing party. Plaintiffs' attorney filed a certification, seeking fees for 12.3 hours of work at a rate of $225 per hour, plus a thirty-five percent enhancement based on the "novelty" of the counterclaims. Following opposition by defendants and argument by defense counsel, the court entered an award in plaintiffs' favor on August 19, 2011, in the amount of $1867.50, plus $60 costs, which did not include an enhancement and was less than the amount sought by plaintiffs.
Defendants appealed the May 27 and August 19, 2011 orders awarding plaintiffs attorney's fees and the June 10, 2011 order granting plaintiffs' motion to dismiss the counterclaim with prejudice and determining plaintiffs were the prevailing parties on the motion. By order of October 12, 2011, the trial court stayed the attorney's fee awards pending appeal.
On appeal, defendants argue:
I. THE TRIAL COURT'S DECISION IN AWARDING ATTORNEY'S FEES WAS IN ERROR BECAUSE THERE IS NO FEE SHIFTING PROVISION IN [OPMA].
II. THE TRIAL COURT'S MAY 27, 2011 HOLDING THAT PLAINTIFFS WERE THE PREVAILING PARTIES ENTITLED TO A FEE AWARD IS CONTRARY TO THE RECORD.
III. IF THE TRIAL COURT'S DECISION AWARDING ATTORNEY'S FEES IS UPHELD, THE TRIAL COURT ERRED IN GIVING AN ENHANCED FEE TO PLAINTIFFS' COUNSEL.
IV. THE TRIAL COURT ERRED IN ALLOWING THE MOTION TO DISMISS TO PROCEED AND IN THE SUBSEQUENT AWARD OF ATTORNEY'S FEES FOR THAT APPLICATION.
A "trial court's determinations with respect to the applicability of OPRA are legal conclusions subject to de novo review." K.L. v. Evesham Twp. Bd. of Educ., 423 N.J. Super. 337, 349 (App. Div. 2011) (internal quotation marks and citations omitted), certif. denied, 210 N.J. 108 (2012). Thus, no deference is afforded to the trial court's findings. Newark Morning Ledger Co. v. N.J. Sports & Exposition Auth., 423 N.J. Super. 140, 159 (App. Div. 2011). See also MAG Entm't, LLC v. Div. of Alcoholic Beverage Control, 375 N.J. Super. 534, 543 (App. Div. 2005) ("We review de novo the issue of whether access to public records under OPRA and the manner of its effectuation are warranted.").
On the other hand, "[f]ee determinations by trial courts will be disturbed only on the rarest of occasions . . . because a trial court [is] in the best position to weigh the equities and arguments of the parties." New Jerseyans for a Death Penalty Moratorium v. N.J. Dep't of Corr., 185 N.J. 137, 152 (2005) (second alteration in original) (internal quotation marks and citations omitted). See also Rendine v. Pantzer, 141 N.J. 292, 317 (1995). Thus, fee determinations must be upheld absent a "clear abuse of discretion." Ibid.
Based on our review of the record and applicable law, and the arguments advanced in the briefs and in oral argument, we are satisfied the court properly concluded that plaintiffs were the prevailing parties under OPRA and thus were entitled to statutory attorney's fees. The court, however, exceeded its discretion when it awarded the enhanced fee in the May 27, 2011 order, and thus we modify that order, removing the enhancement ($1164.38), to reflect an attorney's fee of $4657.50 and retain the $123.69 in costs. The August 19 order contained no enhancement and thus we affirm that order in its entirety.
The court found defendants provided the minutes as a direct result of plaintiffs' lawsuit and thus plaintiffs were prevailing parties under OPRA. The court explained, in part:
plaintiff[s] had requested some thirty-two sets of executive session meeting minutes dated from 2008 through 2010.
In advance of the plaintiffs' request, these documents had not been generated and were not available for public review.
It is the action on the plaintiffs that caused the City to change its behavior and to adopt and make available the requested minutes. In short, there is a factual causal relationship between the lawsuit brought by the plaintiffs and the result obtained in the form of the production of the requested documents.
Defendants argue that because the minutes had not yet been approved due to internal problems and the pending litigation with the prior City Clerk, no official minutes existed when plaintiffs made the OPRA requests, and thus there could be no denial of access to such minutes under OPRA. Accordingly, defendants urge that their failure to provide the requested minutes resulted solely in a violation of OPMA, which, unlike OPRA, does not provide for attorney's fees. We disagree.
The purpose of OPRA is "to maximize public knowledge about public affairs in order to ensure an informed citizenry and to minimize the evils inherent in a secluded process." Mason v. City of Hoboken, 196 N.J. 51, 64 (2008) (internal quotation marks and citation omitted). In order to effectuate this purpose, OPRA mandates that "government records shall be readily accessible for inspection, copying, or examination by the citizens of this State, with certain exceptions, for the protection of the public interest, and any limitations on the right of access . . . shall be construed in favor of the public's right of access." N.J.S.A. 47:1A-1. OPRA provides that "[a] requester who prevails in any proceeding shall be entitled to a reasonable attorney's fee." N.J.S.A. 47:1A-6.
On the other hand, OPMA requires a public body to "keep reasonably comprehensible minutes of all its meetings showing the time and place, the members present, the subjects considered, the actions taken, the vote of each member, and any other information required . . . which shall be promptly available to the public." N.J.S.A. 10:4-14. Unlike OPRA, OPMA does not have a provision for attorney's fees.
Plaintiffs requested documents from defendants under OPRA, including the governing body's executive session meeting minutes from 2008 through 2010. Plaintiffs then brought suit under both OPRA and OPMA to obtain access to these records and to compel compliance with OPMA, in part, to adopt the outstanding draft minutes and then provide them to plaintiffs. Defendants do not dispute that official minutes of meetings of public bodies are subject to OPRA. O'Shea v. W. Milford Bd. of Educ., 391 N.J. Super. 534, 538-40 (App. Div. 2007). The fact that some of the minutes were only in draft form and had not yet been approved by the governing body at the time of plaintiffs' OPRA request does not change the fact that the requested documents were only provided to plaintiffs as a consequence of the May 2, 2011 order. In other words, plaintiffs' OPRA request and litigation were the catalyst for defendants' compliance with OPMA and OPRA and, under the unique circumstances of this case, the court fashioned a hybrid remedy implicating both statutes. Thus plaintiffs were entitled to statutory attorney's fees as a prevailing party under OPRA.
We have noted that "the treatment of the executive session notes for purposes of OPRA must be considered in light of the Open Public Meetings Act." O'Shea, supra, 391 N.J. Super. at 540. See also Atl. City Convention Ctr. Auth. v. S. Jersey Publ'g Co., Inc., 135 N.J. 53, 61 (1994) ("Superimposed on those principles of access to public records are the related principals of our Open Public Meetings Act.").
Moreover, "New Jersey law has long recognized the catalyst theory" in regards to the award of attorney's fees. Mason, supra, 196 N.J. at 73. Plaintiffs are entitled to attorney's fees if they can demonstrate "(1) a factual causal nexus between plaintiff's litigation and the relief ultimately achieved; and (2) that the relief ultimately secured by plaintiffs had a basis in law." Id. at 76 (internal quotation marks and citation omitted).
Defendants next challenge the court's factual conclusion that plaintiffs' actions caused the City's change in behavior. Rather, defendants contend that Jentsch was attempting to remedy the issues underlying plaintiffs' requests before the complaint was filed, and reiterate that any failure on behalf of Jentsch to approve these minutes was a violation of OPMA, rather than OPRA. We disagree.
"A plaintiff may qualify as a prevailing party, and thereby be entitled to a fee award, by taking legal action that provides a 'catalyst' to induce a defendant's compliance with the law." Smith v. Hudson Cnty. Register, 422 N.J. Super. 387, 394 (App. Div. 2011). "The statute does not restrict fee-shifting to instances of willful violations. Rather, '[a] requestor who prevails in any proceeding shall be entitled to a reasonable attorney's fee.'" Id. at 398 (alteration in original) (quoting N.J.S.A. 47:1A-6). Thus, a requestor may be awarded attorney's fees even if the OPRA request is fulfilled pursuant to a settlement, so long as the relief resulted from the litigation. Teeters v. Div. of Youth & Family Servs., 387 N.J. Super. 423, 433-34 (App. Div. 2006), certif. denied, 189 N.J. 426 (2007).
The court correctly found that plaintiffs' actions in filing the lawsuit were a causal nexus to them receiving the requested documents. It is undisputed by the parties that in this case, plaintiffs requested certain documents and defendants, for a variety of reasons, denied these requests. Although defendants responded to the requests within the required seven days, rather than providing a reasonable time within when the records would be available, the responses simply made broad statements of denial, such as "not yet approved," or "not a government record." Arguably, this does not comply with the requirements of N.J.S.A. 47:1A-5(g), which provides, "[i]f the custodian is unable to comply with a request for access, the custodian shall indicate the specific basis therefor on the request form and promptly return it to the requestor."
Defendants concede that "the trial court was correct that '[i]n advance of plaintiffs' request these documents were not available for public view.'" It was not until the April 13, 2011 argument did defendants propose that the governing body would take prompt action on the long-outstanding draft minutes. As correctly found by the court, "plaintiff[s] had to engage in a highly contested matter with the City strongly resisting in substantial measure the production of the documents until this litigation was commenced and the Court hearing conducted."
Defendants argue that Jentsch was already in the process of having the minutes approved prior to plaintiffs' instituting the litigation, and thus plaintiffs did not alter defendants' behavior. However, such information was not communicated to plaintiffs upon responding to their requests. This information was not provided until Jentsch's March 30, 2011 certification filed in opposition to plaintiffs' order to show cause.
We turn now to the quantum of the fee award. In determining the amount of the first attorney's fee award, the court conducted a lodestar analysis and found the requested twenty-five percent enhancement was appropriate based on plaintiffs' attorney's working on a contingent fee basis, having to argue against the "vigorous legal defense" raised by City defendants, and the "substantial" degree of success as evidenced by the thirty-two sets of minutes released to plaintiffs as a result of the litigation.
"Like all fee-shifting statutes,  OPRA neither prohibits enhancements, nor does the Act require them." New Jerseyans for a Death Penalty Moratorium, supra, 185 N.J. at 157. The Supreme Court has noted that, "[o]rdinarily, the facts of an OPRA case will not warrant enhancement of the lodestar because the economic risk in securing access to a particular government record will be minimal." Ibid. However, an upward adjustment may be justified in certain circumstances, for example, when an attorney does not receive a fee from the client, the agency asserts a blanket claim of privilege, or the documents requested relate to an issue of significant public importance. Ibid. Such upward adjustment depends on the totality of the circumstances. Id. at 157-58.
We agree with defendants that this case did not involve issues of significant public importance, extremely novel issues, or present a significant risk of failure in securing the requested documents to constitute an extraordinary OPRA case warranting an enhancement. Based on Jentsch's certification and the Office of Administrative Law decision involving the prior City Clerk, it appears that the primary reason the governing body minutes were not timely prepared and released were the result of personnel issues that had been addressed by the City and were in the process of being resolved around the time period of this action. We therefore vacate the enhancement contained in the May 27, 2011 order.
Lastly, defendants argue the court erred in allowing plaintiffs to proceed on their motion to dismiss the counterclaim and in awarding attorney's fees for that application in view of the voluntary dismissal of the counterclaim prior to the return date. Defendants claim they filed the counterclaim as a protective measure in view of the time constraints and dismissed it shortly thereafter, although they concede it was done after plaintiffs' motion to dismiss. They contend the only reason plaintiffs filed the motion to dismiss was to generate an additional counsel fee. We disagree. The record evidences no ill motive by plaintiffs and the ruling was well within the court's discretion.
The court had ample reason to decide and grant plaintiffs' motion. Defendants filed their answer and counterclaim on April 13, 2011. Plaintiffs orally moved to dismiss the counterclaim on the same date during initial argument on the order to show cause, and then filed a written motion to dismiss on May 13, 2011. Defendants did not file their unilaterally signed stipulation of dismissal until June 3, 2011, on the eve of the return date of the motion. Moreover, the stipulation was not unconditional, as it was not with prejudice. In addition, defense counsel's letter to the court accompanying the stipulation gave the clear impression the issue would be resurrected. The letter stated that after "further consideration and research, it is apparent that the harassment count of the Counterclaim is not a cognizable cause of action in a civil court[;]" however, defendants' position was "that the totality of plaintiffs' actions did cause a substantial disruption to the functions of the Clerk's Office, entitling her to some relief from the Court. This may be an issue which comes up in the future, but for now the case is over."
The court also had sound basis to grant plaintiffs an attorney's fee on this motion. The court properly rejected defendants' arguments that plaintiffs were not entitled to fees on the motion to dismiss as it did not fall under plaintiffs' access rights under OPRA, and that because the claim was dismissed, they were not the prevailing party. It held that plaintiffs, being the prevailing party under the OPRA claim, as the requesters, "still retain[ed] that status in responding validly to a motion to dismiss the counter-claim." As the court recognized, "the additional work [plaintiffs as the prevailing party] had to do in fending off a baseless counter-claim is also cognizable within a realm of actions to which . . . counsel fees are awardable." As the court pointed out, a party cannot avoid liability of attorney's fees simply by entering a stipulation of dismissal on a counterclaim after a motion to dismiss has been filed by the other party. Plaintiffs, being the prevailing party on the substantive OPRA issues, should not be precluded from obtaining attorney's fees in defending against any counterclaims in response to the underlying OPRA action.
Defendants do not challenge the quantum of the award as the court reduced the request and gave no enhancement.
Affirmed in part; modified in part.