A recent Law 360 story by George Woolston, “NJ Justices Refuse Atty Fee Rule Exception in Records Fight”, reports that the New Jersey Supreme Court declined to award fees to Gannett attorneys in the publishing company's fight to get access to a Monmouth County town's law enforcement internal affairs records, ruling that a new exception to the long-standing rule where each party pays its own legal fees in civil litigation wasn't warranted. Fee awards in common law right of access claims fall outside the existing exceptions to the American Rule, and granting a new exception could compromise an individual's privacy and safety as well as the public entity's interests, the justices said, backing a lower appeals court's decision to overturn a partial fee award.
"When a public entity undertakes the balancing analysis required by our decisions on the common law right of access, it should be permitted to formulate a good-faith legal position on the disputed information and to litigate that position, without the risk of an award of attorneys' fees in the event that a court later rejects it," Justice Anne M. Patterson wrote in the unanimous decision.
Gannett-owned Asbury Park Press newspaper sought copies of police internal affairs records from New Jersey's Neptune Township on former officer Philip Seidle, who pled guilty to killing his ex-wife in 2016, under the state's Open Public Records Act and the common law, according to the opinion. Gannett sued after the township denied the request, according to the opinion. A trial court dismissed the release of the records under OPRA, but ordered the township to release the records redacted under the common law right of access and granted a partial fee award.
The township appealed, and the Appellate Division affirmed the trial court's dismissal of Gannett's OPRA claim, but also affirmed the order to release the redacted records, according to the opinion. Additionally, the Appellate Division overturned the partial fee award, holding the state Supreme Court recognized a right to counsel fees in common law right of access cases under certain circumstances in its 2008 decision Mason v. City of Hoboken , under the "catalyst theory." The catalyst theory, Justice Patterson wrote citing Mason, is when a requestor of records can demonstrate the factual link between the litigation and the ultimate relief achieved, and that the relief secured by the requestor had a basis in law.
The appellate panel found Gannett was unable to justify the fee under the catalyst theory because the attorney general — who had said during oral arguments before the Appellate Division that the records would be released — released the redacted records not under court order, but because it was in the public interest, according to the opinion. The justices affirmed the Appellate Division's decision not to award the fees, but noted the state's high court did not determine in Mason a right to attorney fees in common law right of access cases.
Gannett argued the awarding of attorney fees in actions brought under the common law right of access promotes equal access to justice and guarantees the proper representation of parties seeking public records related to law enforcement. The company also argued the mandate in OPRA that states fee awards are available to the prevailing party applies to common law and statutory claims, and that attorney fees are a traditional element in public records disputes because OPRA and its predecessor statute, the Right to Know law, allowed for the award of those fees.
The New Jersey Supreme Court ruled attorney fees in common law right of access claims do not fall under the exceptions to the American Rule, which New Jersey courts have historically followed and which provides that each party pays its own legal fees in civil litigation. Under the American Rule, counsel fees awards are allowed under four general exceptions: by a fee-shifting statute; by court rule; when it's allowed in some cases involving breaches of fiduciary duties; and those granted through a contractual agreement, Justice Patterson said.
The state's high court disagreed with Gannett's argument that the reference in OPRA, that fee awards are available to a "requestor who prevails in any proceeding," applies to common law right of access claims. The justices ruled the language in the statute preceding "any proceeding" clearly indicates it only applies to court proceedings under OPRA or the Government Records Council. "To the contrary, the Legislature made clear that its enactment of OPRA had no effect on the common law right of access," Justice Patterson said.
The court further ruled fee awards in common law right of access claims did not fall under any of the other remaining exceptions to the American Rule. It also countered Gannett's argument that attorney fees should be viewed as a traditional element of damages common law right of access claims, ruling the state Legislature had already provided for such fees. "Were we to accept such an argument, we would expand the narrow fiduciary exception to the American Rule far beyond its logical parameters, and the exception would swallow the rule," Justice Patterson wrote.