934 F.3d 302
3rd Cir.2019Background
- In 2015 Golden and Locke submitted three OPRA requests to NJIT seeking emails between NJIT officials and CIA/FBI addresses; NJIT located thousands of responsive pages.
- NJIT's records custodian consulted the FBI after finding dissemination controls; the FBI reviewed, directed many withholdings, redacted some documents, and provided a letter instructing NJIT not to disclose certain pages.
- Golden and Locke sued under OPRA and New Jersey common law access; the FBI removed the case to federal court under the federal-officer removal statute and intervened as a third-party defendant.
- Following court-supervised consultations and FBI review, NJIT produced 3,445 unredacted pages and 379 partially redacted pages and withheld others; the parties narrowed disputes and the only remaining contested issue became plaintiffs’ claim for attorneys’ fees under OPRA.
- The district court denied fees, reasoning there was no causal nexus between the lawsuit and the production because NJIT reasonably followed the FBI’s directives; the Third Circuit reversed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Golden and Locke are prevailing parties entitled to mandatory attorneys' fees under OPRA (catalyst theory) | Litigation was the catalyst: NJIT withheld records pre-suit and produced them after suit, satisfying Mason's causal-nexus and legal-basis prongs | NJIT argued its pre-suit withholding was compelled/reasonable because the FBI directed non-disclosure, so no fee liability | Held for plaintiffs: suit was the catalyst; causal nexus exists and relief had a basis in law, so plaintiffs are prevailing parties entitled to fees |
| Whether a records custodian can avoid OPRA fee liability by deferring to a third party (FBI) | Plaintiffs: custodian bears the statutory duty and fee liability regardless of third-party interests or directives | NJIT/FBI: FBI was de facto custodian/owned records and its directives made NJIT’s withholding involuntary and reasonable | Held for plaintiffs: OPRA assigns the custodian the duty to decide disclosure and the attendant fee liability; reliance on third-party direction does not absolve custodian |
| Proper reading of Mason’s reference to "reasonableness" when applying catalyst theory | Plaintiffs: Mason does not impose a general "reasonableness of denial" defense to fee entitlement; reasonableness concerns pre-suit efforts to comply | NJIT: Mason requires evaluating reasonableness of the custodian’s denial, which NJIT says was reasonable | Held: Mason’s reasonableness inquiry considers pre-suit efforts to comply, not a defense excusing post-suit fee liability; NJIT’s conduct was not shielded by reasonableness here |
| Whether federal-officer removal jurisdiction under 28 U.S.C. § 1442(a)(1) properly supported exercising federal jurisdiction | Plaintiffs did not contest removal; they argued merits on OPRA fee entitlement | FBI asserted it was acting under federal authority and raised colorable federal defenses (e.g., federal records/FOIA/Privacy Act exemptions) | Held: Removal was proper; the FBI satisfied § 1442(a)(1)’s four requirements and raised colorable federal defenses, so federal jurisdiction was appropriate |
Key Cases Cited
- Mason v. City of Hoboken, 951 A.2d 1017 (N.J. 2008) (adopting catalyst test for OPRA fee awards: causal nexus and legal basis)
- Papp v. Fore-Kast Sales Co., Inc., 842 F.3d 805 (3d Cir. 2016) (federal-officer removal statute interpreted broadly)
- In re Commonwealth's Motion to Appoint Counsel Against or Directed to Def. Ass'n of Phila., 790 F.3d 457 (3d Cir. 2015) (connection/association standard for acts under color of federal office)
- Jefferson Cty. v. Acker, 527 U.S. 423 (1999) (colorable federal defense requirement for removal is not narrow)
- Spectraserv, Inc. v. Middlesex Cty. Utils. Auth., 7 A.3d 231 (N.J. Super. App. Div. 2010) (agencies’ pre-suit reasonableness can defeat catalyst-based fee claims)
- Courier News v. Hunterdon Cty. Prosecutor's Office, 876 A.2d 806 (N.J. Super. App. Div. 2005) (custodian, not third party, is responsible for OPRA fee liability)
- K.L. v. Evesham Twp. Bd. of Educ., 32 A.3d 1136 (N.J. Super. App. Div. 2011) (fees awarded where lawsuit caused disclosure despite third-party confidentiality interests)