Court makes it easier for Open Public Records Act (OPRA)
requestors to recover their attorney fees

I wish to invite your attention to a very important appellate division decision that was published today.    The case is Cynthia Teeters v. New Jersey Division of Youth and Family Services and is online at http://www.judiciary.state.nj.us/opinions/a5494-04.pdf

As you will see, Montclair attorney Richard Gutman scored another big victory for the public's right to know.

Prior to today's decision, the New Jersey Government Records Council (GRC), which enforces the state's Open Public Records Act, held that a record requestor who brought a "denial of access" complaint against a government agency could not recover his or her attorney fees from the agency unless he or she won an order forcing the agency to produce the requested records.

What happened in many cases, however, and in the Teeters case specifically, is that the recalcitrant government agency would release the requested records after the frustrated requestor hired an attorney to file a complaint with the GRC but before the GRC ruled on the issue.  In such cases, the GRC's policy was harsh, because it prevented the requestor from recovering his or her attorney fees, even though he or she would not have received the requested records without the attorney's assistance.

In today's decision, the appellate panel unanimously rejected this policy.  Instead, the Appellate Division held that the "catalyst basis" for fee awards applies to OPRA. Under the "catalyst basis," a record requestor prevails for purposes of an attorney fee provision if the requestor's lawsuit or complaint a) caused the defendant government agency to give the requestor part of the relief sought and b) had some basis in law.

The significance of the decision is that it will make it easier for a non-affluent individual with a meritorious claim to obtain an attorney to enforce his or her claim for public records. After today's ruling, the attorney need not be concerned that the defendant could drag out the case for years, grant the relief shortly before the scheduled ruling and then have the case dismissed as moot without any attorney fee award.

Again, kudos to Rick Gutman!

John Paff
Somerset, NJ

NJFOGTalk@yahoogroups.com [
mailto:NJFOGTalk@yahoogroups.com] On Behalf
Of John Paff

NOTE from Ed Mecka:

Hoboken resident BETH MASON, President of New Jersey Foundation For Open Government (NJFOG) reports:

"thought you should know that I have won three OPRA suits in a row [against Hoboken].  Last one was announced on Wednesday.  Waiting to get tape.  The City [Hoboken] for the last one will owe me $500.  We just filed papers for attorney fees in excess of $14,000.  It seems that my attorney is much more cost effective over the long run as the city [Hoboken]  had run up more than $20,000 prior to the hearing."

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