SCOTT KENNEDY VS. MONTCLAIR CENTER CORPORATION BUSINESSÂ IMPROVEMENT DISTRICT(L-0924-13, ESSEX COUNTY AND STATEWIDE)
A-5422-14T4
| N.J. Super. Ct. App. Div. | Nov 27, 2017Background
- Kennedy, an OPRA requester, sued Montclair Center Corp. BID after the BID initially resisted recognizing it as a "public agency" under OPRA even though it provided requested documents shortly after suit was filed.
- The BID produced the requested records at five cents per page (the OPRA standard) after suit; Kennedy nevertheless sought a declaratory judgment that the BID was an OPRA public agency and continued litigation.
- On prior appeal this Court held the BID is a public agency subject to OPRA; the fee question remained for remand.
- Kennedy sought $156,866.50 in attorney fees (only $8,039.50 incurred before the records were produced) and costs; the trial court held fees are not recoverable for work after access was provided and awarded $6,000 without adequate explanation.
- This appeal addresses whether N.J.S.A. 47:1A-6 authorizes attorney’s fees for post-access litigation to obtain declaratory relief and whether the reduced fee award for pre-access work is supported.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether OPRA's fee provision (N.J.S.A. 47:1A-6) authorizes recovery of attorney's fees for litigation after a requester already obtained the requested records | "Any proceeding" in the fee clause is unqualified and therefore includes post-access proceedings (e.g., declaratory relief that entity is an OPRA agency) | Fees are limited to proceedings to obtain access; alternatively, plaintiff must show an effective denial of access to recover fees | Held: Fees under § 6 apply only to a "requestor" and to proceedings seeking access (including proceedings that obtain access plus other relief). Post-access litigation solely to obtain declaratory relief is not compensable under § 6. |
| Whether Kennedy was a "prevailing requestor" entitled to fees for work performed before the BID produced records at five cents/page | Kennedy argues the suit caused the BID to produce records at the correct five-cent rate and thus he prevailed under the catalyst test | BID argues Kennedy was not effectively denied access or otherwise not entitled to fees | Held: Trial court correctly found a causal nexus (suit prompted production at five cents); Kennedy prevailed and is entitled to reasonable fees for pre-access work. |
| Standard for awarding and reviewing attorney's fees under OPRA | Kennedy: trial court's unexplained reduction to $6,000 improperly departed from lodestar/adjustment analysis | BID: contesting entitlement and amount | Held: Court must calculate lodestar and explain any adjustments; the unexplained $6,000 award is vacated and remanded for detailed findings. |
| Scope/Policy of § 6 fee award (deterrence and incentives) | Kennedy emphasizes enforcement value of declaratory relief | BID warns fee awards could incentivize litigation and discourage voluntary disclosure | Held: Court interprets § 6 in context and purpose—fees are aimed at securing access and avoiding creating incentives for collateral fee-driven litigation; Mason's concerns guide limiting fees to access-related proceedings. |
Key Cases Cited
- State v. Revie, 220 N.J. 126 (statutory interpretation is de novo)
- Mason v. City of Hoboken, 196 N.J. 51 (OPRA fee entitlement and caution against incentivizing litigation)
- In re Kollman, 210 N.J. 557 (follow plain statutory language)
- Waterfront Comm’n v. Mercedes-Benz of N. Am., Inc., 99 N.J. 402 (interpret statute in context of the whole law)
- Rendine v. Pantzer, 141 N.J. 292 (appellate review of trial court fee determinations; abuse of discretion standard)
- In re N.J. Firemen’s Ass’n Obligation to Provide Relief Applications Under the Open Public Records Act, 230 N.J. 258 (purpose of OPRA fee provision; deterrence of access denials)
- Stop & Shop Supermarket Co. v. County of Bergen, 450 N.J. Super. 286 (App. Div.) (suit moot where documents already provided; prevailing party must have brought suit to enforce access)
- Smith v. Hudson Cnty. Register, 422 N.J. Super. 387 (App. Div.) (excessive copying charges can constitute denial of access; catalyst theory applied)