Asbury Park Press is entitled to attorney’s fees in records dispute

Asbury Park Press is entitled to attorney’s fees in records dispute

Court: New Jersey Supreme Court

Date Filed: Sept. 16, 2022

Background: In May 2017, the Gannett-owned Asbury Park Press submitted a request under the New Jersey Open Public Records Act and the common law seeking the internal affairs file of Philip Seidle, a former Neptune Township police sergeant who murdered his ex-wife with his service revolver in 2015.

The township denied the newspaper’s request. After the newspaper sued, the trial court held that, while the records could be withheld under the state’s public records law, they were subject to disclosure under the common law. The court also awarded the newspaper attorney’s fees.

On appeal, the Appellate Division affirmed that the records could be shielded under OPRA but must be released under the common law. However, the appeals court reversed the trial court’s award of attorney’s fees to the Asbury Park Press.

The Appellate Division found that a prevailing party under the common law may be able to recover attorney’s fees under the catalyst theory. (Under this legal theory, if a court concludes that a records requester “substantially prevailed” in a public records lawsuit — that is, if the lawsuit was found to be the driving force behind a government agency’s decision to make records public, even absent a court ruling — the government should be on the hook to pay the plaintiff’s fees.) However, because the attorney general released portions of Seidle’s internal affairs records while the appeal was pending, the Appellate Division concluded that the newspaper was not the “catalyst” for disclosure and therefore not a prevailing party under the catalyst theory.

The appeals court then looked to additional factors, such as the Asbury Park Press’s ability to pay its own fees, to determine that the newspaper was not entitled to a discretionary fee award.

The Asbury Park Press then appealed to the New Jersey Supreme Court, which agreed to review the question of whether — and under what circumstances — a party may recover attorney’s fees under the common law.

Our Position: The New Jersey Supreme Court should find that a prevailing party in a public records lawsuit is entitled to an award of attorney’s fees, whether under OPRA or the common law, and should reverse the lower court’s decision that Asbury Park Press was not a prevailing party entitled to attorney’s fees.

  • Fee-shifting, under both OPRA and the common law, plays a vital role in enabling the public and press to pursue access to government information.
  • The discretionary factors applied by the appeals court undermine the public policy supporting access to public records.

The Reporters Committee and 16 news media organizations were represented in this friend-of-the-court brief by attorneys at the law firm Davis Wright Tremaine LLP.

Quote: “Limiting the availability of attorney’s fees under the common law will put at least some public records out of reach for journalists and, accordingly, limit the public’s ability to better understand, analyze, and critique the actions of government.”

Related: To learn more about fee-shifting statutes and why they are so important in the fight for access to public records, check out our blog post.

Gannett Satellite Information Network, LLC d/b/a Asbury Park Press v. Township of Neptune