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Jesse Wolosky v. Township of Sparta

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


December 13, 2012

JESSE WOLOSKY, PLAINTIFF-RESPONDENT/ CROSS-APPELLANT,
v.
TOWNSHIP OF SPARTA, DEFENDANT-APPELLANT/ CROSS-RESPONDENT.

On appeal from the Government Records Council, Complaint No. 2008-277.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued November 7, 2012

Before Judges Yannotti and Harris.

The Township of Sparta (Township) appeals from a final determination of the Government Records Council (GRC), which found that Jesse Wolosky (Wolosky) was the prevailing party in a proceeding brought pursuant to the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, and awarded him attorney's fees in the amount of $6097. Wolosky cross-appeals from the GRC's decision. For the reasons that follow, we affirm in part and reverse in part on the appeal, and affirm on the cross-appeal.

On April 3, 2008, Wolosky submitted a request to the Township for copies in the Windows WAV format of the audio recording of the March 25, 2008 meeting of the Township's Council. The Township's Custodian of Records (Custodian) responded to the request in a letter dated April 7, 2008. The Custodian wrote that the Township uses the FTR Gold System to record the Council meetings, and it does not maintain the recordings in any other format.

The Custodian stated that she would provide a complete copy of the FTR Gold System recording of the Council's March 25, 2008 meeting at a cost of $1 per compact disk (CD). The Custodian also stated that the Township's Director of Technology had informed her that it would take three and one-half hours to convert the recording to the Windows WAV format. The Custodian said that a special service charge (SSC) of $67 per hour would be imposed for the conversion. The Custodian offered, however, to provide Wolosky with a free download of the software necessary to play the recording in the FTR Gold System format.

On April 7, 2008 and April 9, 2008, Wolosky submitted additional OPRA requests to the Township. He sought copies of all of the Township Attorney's legal bills for the period from December 2007 to March 2008, and a copy of the Township's bill list by vendor identification for the year 2007. Wolosky also sought CDs of the audio recordings of the Council's December 27, 2007, March 25, 2008 and April 8, 2008 meetings in the Windows WAV format.

On April 11, 2008, the Custodian responded to Wolosky's April 7 and April 9 requests. The Custodian stated that she would provide an electronic copy of the vendor bill list, at a cost of $162.75, and an electronic copy of a summary of the legal bills, at a cost of $13.50. In addition, the Custodian said that audio recordings of each of the Council's meetings could be provided in Windows WAV format; however, a SSC would be imposed in the amount of $67 per hour for labor, plus $1 per CD, for each recording.

By letter dated May 9, 2008, Wolosky objected to the amount of the SSC for the conversion of the audio recordings. The Custodian responded in a letter dated May 14, 2008. She stated that the Township would not change its position regarding the SSC.

On December 12, 2008, Wolosky filed a denial-of-access complaint with the GRC, challenging the SSCs that the Custodian intended to assess for the record conversions. The GRC issued an order in the matter, which was distributed on November 20, 2009.

The GRC determined that an SSC could be imposed to convert the legal bills and vendors list, but said that the labor portion of the charge should be based on the hourly rate of the lowest paid employee qualified to perform the conversion. The GRC additionally determined that an SSC could be imposed to convert the audio recordings of the Council's meetings to the Windows WAV format, and the charge could be based upon a $67 per hour labor cost for the conversion.

On December 3, 2009, Wolosky asked the GRC to reconsider its November 20, 2009, interim order. Among other things, Wolosky stated that it was not necessary to convert the recordings of the Council's meeting from one format to another, because the Township had the technical capability to convert the FTC Gold System recording to the Windows WAV format. Wolosky also stated that, on several previous occasions, the Township had provided him with audio recordings in that format.

On December 4, 2009, the GRC contacted ForTheRecord, the manufacturer of the FTR Gold System, and was advised that since 2002, the FTR Gold System has been capable of creating audio recordings in the Windows WAV format, provided that the system includes a CD "burner." The Township informed the GRC, in response to the GRC's inquiry, that its FTR Gold System was installed in 2006 and it has a CD "burner."

The GRC thereafter issued another order on Wolosky's application for reconsideration, which was distributed on June 2, 2010. The GRC determined that the SSCs the Custodian proposed to charge were not warranted. The GRC stated that the Custodian could only charge thirty-five cents for each of the CDs used to duplicate the recordings of the Council's meetings and to copy the legal bills and vendor lists. The GRC indicated that the cost to duplicate the audio recordings should be $3.85.

The Township complied with the GRC's June 2, 2010 order, and the GRC thereupon issued another order, which was distributed on July 28, 2010. The GRC determined that Wolosky was a prevailing party entitled to a reasonable attorney's fee pursuant to N.J.S.A. 47:1A-7(f). The GRC referred the matter to the Office of Administrative Law for a determination by an Administrative Law Judge (ALJ) of the amount of the fee.

The ALJ issued an initial decision on September 9, 2011. The ALJ noted that the Township had not challenged the hourly rate or the number of hours that Wolosky's attorney had devoted to the matter. The ALJ found that a reasonable attorney's fee was $7408.13, which was based on the lodestar of $6097.50, plus a 25 percent fee enhancement. The ALJ stated that the fee enhancement was warranted because, although the issues involved were not of great public importance, Wolosky had achieved a "high degree of success." The ALJ also stated that there was a "high risk" that Wolosky's attorney would not recover any fee.

The GRC's final decision was distributed on December 1, 2011. The GRC determined that Wolosky was entitled to a reasonable attorney's fee in the amount of $6097.50, based on the lodestar. The GRC also determined that a fee enhancement was not warranted because the matter did not present any novel issue, the applicable legal principles were settled, the risk of failure in the litigation was low, and the case did not involve any issue of significant public importance.

The Township appeals and argues that the GRC erred by finding that Wolosky was entitled to have the Custodian convert the audio recordings of the Council meetings from the FTR Gold System format to the Windows WAV format. The Township therefore argues that Wolosky should not have prevailed on his claim related to that conversion, and the award of counsel fees should be set aside.

The OPRA generally provides that the custodian of government records shall permit any person to inspect, examine or copy such records during the public entity's regular business hours. N.J.S.A. 47:1A-5(a). The OPRA additionally provides that:

A custodian shall permit access to a government record and provide a copy thereof in the medium requested if the public agency maintains the record in that medium. If the public agency does not maintain the record in the medium requested, the custodian shall either convert the record to the medium requested or provide a copy in some other meaningful medium. If a request is for a record: (1) in a medium not routinely used by the agency; (2) not routinely developed or maintained by an agency; or (3) requiring a substantial amount of manipulation or programming of information technology, the agency may charge in addition to the actual cost of duplication, a special charge that shall be reasonable and shall be based on the cost of personnel providing the service, that is actually incurred by the agency or attributable to the agency for the programming, clerical, and supervisory assistance required, or both. [N.J.S.A. 47:1A-5(d) (emphasis added).]

We are satisfied that the GRC erred by ordering the Township to provide Wolosky with an audio copy of the Council's meetings in Windows WAV format. It is undisputed that the Township did not maintain audio recordings of the Council's meetings in the Windows WAV format. The Custodian therefore offered to provide the recordings in the Windows WAV format and impose a SSC based upon a $67 per hour cost for the labor required to make the conversions. The Custodian also offered to provide Wolosky with a free download of the software needed to play the audio recordings of the Council meetings in the FTR Gold System format.

In our view, the Custodian's offer met the requirements of N.J.S.A. 47:1A-5(d). Although the Custodian did not offer to provide Wolosky the recordings in the medium he requested, the Custodian nevertheless offered to provide him with the requested information in a "meaningful medium."

The offered download of the software needed to play audio recordings in the FRT Gold System format was "meaningful" because it afforded Wolosky full access to the requested information. Furthermore, the Custodian's offer satisfied one of the key purposes of the OPRA, which is to provide ready access to government records. Newark Morning Ledger Co. v. N.J. Sports & Expo. Auth., 423 N.J. Super. 140, 160 (App. Div. 2011) (citing Burnett v. Cnty. Of Bergen, 198 N.J. 408, 421 (2009)).

In addition, the Custodian's offer advanced the legislative goal in the OPRA, which is to maximize public knowledge about public affairs in order to ensure an informed citizenry. Livecchia v. Bor. of North Arlington, 421 N.J. Super. 24, 32 (App. Div. 2011) (citing Kovalcik v. Somerset Cnty. Prosecutor's Office, 206 N.J. 581, 588 (2011)). We therefore conclude that the GRC erred by ordering the Township to provide Wolosky with recordings of the Counsel's meetings in the Windows WAV format.

The Township additionally argues that the GRC erred by determining that Wolosky was a prevailing party entitled to an award of attorney's fees pursuant to N.J.S.A. 47:1A-7(f). While Wolosky prevailed before the GRC on his challenge to the SSC that the Custodian proposed to impose for conversion of the audio recordings, the GRC should have rejected that claim, as previously explained.

We recognize, however, that Wolosky also challenged the SSCs that the Custodian proposed to impose for the conversion of the Township's vendor list and legal bills to an electronic format. The GRC found that the Township could impose an SSC for the conversion of these records, but the SSC must be based on the labor cost of the lowest-paid employee qualified to make the conversion. The Township does not challenge this part of the GRC's decision.

Therefore, Wolosky was a prevailing party in the litigation, but his success was limited. When a party only achieves partial success in a lawsuit, the award of an attorney's fee based on the full lodestar may not be reasonable.

New Jerseyans for a Death Penalty Moratorium v. N.J. Dept. of Corr., 185 N.J. 137, 153 (2005) (quoting Szczepanski v. Newcomb Med. Ctr., 141 N.J. 346, 355 (1995)).

Consequently, the court or agency awarding the attorney's fee in an OPRA proceeding must determine whether the time counsel devoted to the matter was "reasonable in relation to the actual relief obtained." Id. at 154 (citing N. Bergen Rex Transp., Inc. v. Trailer Leasing Co., 158 N.J. 561, 572 (1999)). If it is not, the court or agency should "reduce the award proportionally." Ibid. (citing N. Bergen Rex, supra, 158 N.J. at 572).

Rather than remand the matter to the GRC to reconsider the fee award, we have determined to exercise our original jurisdiction to avoid further litigation concerning the fees. R. 2:10-5; Vas v. Roberts, 418 N.J. Super. 509, 523 (App. Div. 2011). The record is sufficient to determine the fee, and agency fact-finding and expertise is not required for this determination. Ibid. (citing In re City of Plainfield's Park-Madison Site, 372 N.J. Super. 544, 552 (App. Div. 2004) certif. denied, 182 N.J. 630 (2005). We conclude that upon consideration of all the relevant factors, a reasonable attorney's fee for Wolosky's limited success in this matter is $500.

In his cross-appeal, Wolosky contends that the GRC erred by refusing to award him a fee enhancement. We are convinced that the GRC correctly determined, for the reasons stated in its final decision, that a fee enhancement is not warranted here. Wolosky's arguments on this point are of insufficient merit to warrant discussion. R. 2:11-3(e)(1)(E).

We affirm in part and reverse in part on the appeal, and conclude that Wolosky is entitled to an attorney's fee of $500. We also affirm on the cross-appeal.

20121213

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