New Jersey provides a statutory and common law right of access to government records. While New Jersey’s Open Public Records Act (OPRA), the statutory right of access, expressly mandates an award of counsel fees to a prevailing requestor, there has been some confusion among New Jersey courts, based upon the New Jersey Supreme Court’s decision in Mason v. City of Hoboken, as to whether there is a corresponding right to an award of counsel fees to a prevailing common law requestor. The New Jersey Supreme Court has recently granted certification on this issue and will now have the opportunity to unequivocally clarify the right of a prevailing common law requestor to recover the attorney’s fees incurred in challenging a wrongful denial of access.
The case before the Supreme Court involves a request by the Asbury Park Press for access to the internal affairs file of a Township of Neptune police sergeant who chased down his ex-wife’s car and executed her with his service revolver in the summer of 2015. That internal affairs file contained more than 25 reports for a host of incidents, including domestic violence and assaultive behavior on the job. There was, understandably, strong public outcry over the horrific event, and the Asbury Park Press sought information about the sergeant’s internal affairs history through the use of government records requests under OPRA and the common law. Those requests were denied by the Township, and the Asbury Park Press filed a lawsuit for access.
The trial court and Appellate Division agreed that, while the requested records were not accessible under OPRA, the newspaper was entitled to access under the common law. The two courts disagreed, however, as to the circumstances under which a prevailing common law requestor is entitled to the award of attorney’s fees: The trial court awarded them to the newspaper, and the Appellate Division reversed that award. The Appellate Division determined that (unlike under OPRA) the award of counsel fees is discretionary and considered multiple factors beyond “prevailing party” status in determining that the Asbury Park Press was not entitled to fees in this case.
Briefing is now underway in the Supreme Court. It is expected that the court’s decision will ultimately provide clarity regarding the circumstances under which a prevailing common law requestor is entitled to an attorney’s fee award.