August 1, 2013
TUCKER KELLEY, Plaintiff-Appellant,
ROCKAWAY TOWNSHIP and BEVERLY C. KOVAL, in her official capacity as the Township Clerk and Records Custodian of Rockaway Township, Defendants-Respondents.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued April 15, 2013
On appeal from Superior Court of New Jersey, Law Division, Morris County, Docket No. L-002172-11.
Walter M. Lures argued the cause for appellant.
Tiena M. Cofoni argued the cause for respondents (The Buzak Law Group, LLC, attorneys; Edward J. Buzak, Ms. Cofoni, and Susan L. Crawford, on the Brief).
Before Judges Graves and Guadagno.
Plaintiff Tucker Kelley appeals from a June 18, 2012 order denying his application for attorney's fees and costs under the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13. For the reasons that follow, we affirm.
On May 2, 2011, plaintiff submitted a request under OPRA, the Open Public Meetings Act (OPMA), N.J.S.A. 10:4-6 to -21, and the common law right of access to the Rockaway Township Clerk (Township Clerk) for "all recorded and transcribed executive meeting minutes that lead up to and reference the most recent signed agreement (1/1/2010 through 12/31/2014) between the Township of Rockaway and the Rockaway Township Fraternal Order of Police." In addition, plaintiff requested "all recorded and transcribed executive meeting minutes that lead up to and reference the March 14, 2011 proposed layoff/demotion plan approved on April 1, 2011, Log #03410217, by Kenneth Connolly, Director of Local Human Resources Management, State of New Jersey Civil Service Commission." The Township Clerk denied the request in an email the following day, stating the request "is not valid under OPRA as it does not provide a time frame or specific meeting dates of the minutes" and is "too broad."
On May 17, 2011, plaintiff submitted an amended request for "all closed session minutes recorded and transcribed from January 1, 2009, to the present day of this clarification." The Township Clerk again denied plaintiff's request on May 19, 2011, stating, "The documents you requested are draft, unapproved closed session meeting minutes as they have not been approved by the Township Council. Therefore the documents you requested are advisory, consultative and deliberative and are exempt from disclosure." In an additional response dated May 27, 2011, the Township Clerk stated the recordings of the closed session meetings "have to be reviewed for confidentiality reasons" and were therefore "not discloseable."
After additional correspondence between the parties, the Township Clerk sent the following email to plaintiff on July 7, 2011:
By way of further response to your OPRA request of May 2, 2011, please be advised that any actual recordings of Executive Session proceedings cannot be made available to you. As the minutes of the Executive Sessions pertinent to your OPRA request have not been approved, it follows that it would be inappropriate for you to have access to any actual recordings from those sessions.
Plaintiff filed a verified complaint on August 2, 2011, alleging that Rockaway Township and the Township Clerk (collectively defendants) denied him access to documents requested pursuant to OPRA and the common law right of access. Plaintiff also claimed that the Township Council had "not approved executive session meeting minutes for any of its executive session meetings that were held from January 1, 2009 to May 17, 2011, in violation of the Open Meetings Act." Additionally, plaintiff requested costs and attorney's fees.
The court determined the matter would proceed summarily pursuant to Rule 4:67-1(a) and N.J.S.A. 47:1A-6, and issued an order to show cause returnable on September 23, 2011. Defendants filed an answer requesting dismissal of the complaint and certifications in opposition to plaintiff's order to show cause. The Township Business Administrator certified he "hired a temporary employee starting September 19, 2011, to prepare all closed session meeting minutes from January 1, 2009 through May 17, 2011, that have not yet been prepared." The certification further stated that "a policy for the release of Township Council closed session meeting minutes has been implemented."
During argument on September 23, 2011, defendants' attorney conceded that of the twenty-four closed session meetings that occurred between January 1, 2009 and May 17, 2011, the Township had prepared minutes for only three of the meetings. In addition, the court determined there was a violation of OPMA: "No minutes were done. They had to be done, they weren't done. Therefore the Act was violated."
The court memorialized its decision in an order dated November 3, 2011. The order required defendants to approve all executive session meeting minutes held by the Township Council from January 1, 2009 to May 17, 2011, subject to redactions as permitted by law, by no later than November 11, 2011; plaintiff's request "for copies of audio recordings of Rockaway Township Council executive session meetings" was denied without prejudice; and plaintiff's request for copies of transcripts of Township Council executive session meeting minutes was denied because defendants "represented that said transcripts do not exist." The order also denied plaintiff's request for attorney's fees without prejudice. Finally, the order declared that defendants violated OPMA "by not promptly making available to the public certain executive session meeting minutes."
On May 7, 2012, plaintiff filed a motion requesting attorney's fees and costs. In his certification, plaintiff's counsel requested a total award of $8295.46:
Counsel for plaintiff achieved an excellent result. We sought and achieved substantial relief, including (1) a court order requiring defendants to approve its executive session meeting minutes not previously approved by November 1, 2011, for a two and one-half year period; (2) disclosure of all such executive session meeting minutes to which access was previously denied; and (3) a declaration that defendants violated OPMA.
Following oral argument, the court denied plaintiff's motion. In a statement of reasons attached to a June 18, 2012 order, the court explained:
In this matter, plaintiff has abandoned his requests for transcripts and recordings, and is satisfied with the result of the Order to Show Cause in the disclosure of the Closed Session minutes. The court finds that but for plaintiff filing the OPMA claim, there would have been no disclosure of the executive session meeting minutes. It is clear that the minutes first had to be generated, as the Township was in violation of OPMA, and then redacted and approved prior to the ordered disclosure. Thus, the court does not find that plaintiff's suit under OPRA was the "catalyst" to spark the generation of the minutes and their eventual disclosure; rather, it was plaintiff's suit under OPMA, in which he ultimately prevailed, that provided for the creation and availability of the minutes. See N.J.S.A. 10:4-17 ("Each public body shall keep reasonably comprehensive minutes of all its meetings . . . which shall be promptly available to the public . . . .").
"[A]bsent here is any causal connection" between plaintiff's OPRA claims and the production of the minutes by the Township. See Spectraserv, Inc. v.Middlesex Cnty. Util. Auth., [416 N.J.Super. 565, 584 (App. Div. 2010)]. Thus, the court finds that it was the claim of violation of OPMA that spurred the Township into action. Said another way, had plaintiff filed a complaint under OPMA alone, he would have received the requested relief. Thus, the court finds that plaintiff is not entitled to an award of counsel fees pursuant to N.J.S.A. 47:1A-6.
Plaintiff argues on appeal he is a prevailing party under OPRA and entitled to an award of reasonable attorney's fees. Plaintiff argues that under the "catalyst theory" articulated in Mason v. City of Hoboken, 196 N.J. 51, 76 (2008), "there is no doubt that there was a 'factual causal nexus' between plaintiff's conduct and the result, " and "since the relief sought by plaintiff was authorized under OPMA and OPRA, there should be no doubt that the relief achieved had a 'basis in law.'" We do not agree.
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) (quoting O'Shea v. Twp. of W. Milford, 410 N.J.Super. 371, 379 (App. Div. 2009)), certif. denied, 210 N.J. 108 (2012). Therefore, we afford no deference 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).
Pursuant to OPRA, all "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. Additionally, OPRA states that "[i]f it is determined that access [to a government record] 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.
On the other hand, pursuant to OPMA a public body "shall 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 to be shown in the minutes by law, which shall be promptly available to the public." N.J.S.A. 10:4-14. "Unquestionably, the objectives of the OPMA are to give full access to all public meetings of governmental bodies and to protect against secrecy in public affairs." Lakewood Citizens for Integrity in Gov't, Inc. v. Lakewood Twp. Comm., 306 N.J.Super. 500, 505-06 (Law Div. 1997). "Thus, the Legislature contemplated that the minutes of all meetings, including executive-session meetings, would be disclosed eventually unless their release otherwise would conflict with the legislative purpose in authorizing the executive-session meeting." S. Jersey Pub. Co. v. N.J. Expressway Auth., 124 N.J. 478, 491 (1991). Unlike OPRA, OPMA does not have a provision for the statutory award of attorney's fees to a prevailing party.
In the present matter, we reach the same conclusion as Assignment Judge Thomas L. Weisenbeck. We are satisfied that he properly applied the law and correctly concluded that plaintiff prevailed on his claims under OPMA––not OPRA. Accordingly, plaintiff is not entitled to counsel fees and costs.