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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...