AFRICAN AMERICAN DATA AND RESEARCH INSTITUTE v. MADELINE C. MEDINA AFRICAN AMERICAN DATA AND RESEARCH INSTITUTE v. NICOLE LEAVY (L-4981-19 AND L-0893-20, HUDSON AND UNION COUNTIES AND STATEWIDE) (CONSOLIDATED)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NOS. A-4218-19
A-4433-19
AFRICAN AMERICAN DATA
AND RESEARCH INSTITUTE
("AADARI"),
Plaintiff-Appellant,
V.
MADELINE C. MEDINA, CITY
OF BAYONNE POLICE
DEPARTMENT, and CITY OF
BAYONNE,
Defendants-Respondents.
AFRICAN AMERICAN DATA
AND RESEARCH INSTITUTE
("AADARI"),
Plaintiff-Respondent,
v.
NICOLE LEAVY, TOWNSHIP OF
UNION POLICE DEPARTMENT,
and TOWNSHIP OF UNION,
Defendants-Appellants.
Submitted October 26, 2021 – Decided January 20, 2022
Before Judges Currier and Smith.
On appeal from the Superior Court of New Jersey, Law
Division, Hudson County, Docket No. L-4981-19 and
Union County, Docket No. L-0893-20.
Rotimi A. Owoh, attorney for appellant in Docket No.
A-4218-19 and respondent in Docket No. A-4433-19.
Aloia Law Firm, LLC, attorneys for appellants in A-
4433-19 (Michael K. Belostock and Victoria A. Lucido,
on the briefs).
Inglesino, Webster, Wyciskala & Taylor, LLC,
attorneys for respondent in Docket No. A-4218-19
(Justin A. Marchetta, of counsel; Graham K. Staton, on
the briefs).
PER CURIAM
These consolidated appeals arise out of two separate denials of plaintiff's
New Jersey Open Public Records Act (OPRA) requests. In African American
Data and Research Institute (AADARI) v. Nicole Leavy, Township of Union,
and Township of Union Police Department (the Union case), defendants appeal
from the May 22, 2020 and July 24, 2020 trial court orders, which respectively
ordered defendants to produce the requested records and granted plaintiff
attorney's fees.
A-4218-19
2
In African American Data and Research Institute (AADARI) v. Madeline
C. Medina, City of Bayonne Police Department, and City of Bayonne (the
Bayonne case), plaintiff appeals from the trial court's July 24, 2020 order
granting defendants' motion for reconsideration and vacating a prior award to
plaintiff of attorney's fees.
While these appeals were pending, the New Jersey Supreme Court issued
an opinion in Simmons v. Mercado, 247 N.J. 24 (2021) that definitively resolved
the issues before us. Therefore, we affirm the orders in the Union case. We
reverse the order in the Bayonne case and remand to the trial court to reinstate
the June 11, 2020 attorney's fee award.
I.
In both cases, plaintiff made an OPRA request for the following records:
(1) DRE (Drug Recognition Evaluation/Expert) Rolling
Log (from January of 2019 to the present).
(2) Copies of summonses and complaints that were
prepared by [the municipality] police department
relating to each one of the defendants listed in [the]
DRE Rolling Logs mentioned in item 1 above.
(3) Copies of DUI and DWI summonses and complaints
that were prepared by [the municipality] Police
Department from January of 2019 to the present.
A-4218-19
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(4) Copies of drug possession summonses and
complaints that were prepared by [the municipality]
Police Department from January of 2019 to the present.
(5) Copies of drug paraphernalia summonses and
complaints that were prepared by [the municipality]
Police Department from January of 2019 to the present.
(6) Copy of [the municipality] Police Department's
"Arrest Listings" from January of 2019 to the present.
Defendants in both cases responded that the respective police department
was not in possession of items (2)-(5) and plaintiff should contact the respective
municipal court for the requested documents. Plaintiff filed orders to show
cause in each case compelling defendants to produce the requested documents. 1
The trial courts granted the orders to show cause in each case. As the
prevailing party, plaintiff moved for an order awarding counsel fees and costs
under N.J.S.A. 47:1A-6. The trial court granted counsel fees to plaintiff in the
Union case on July 24, 2020. Plaintiff was granted counsel fees in the Bayonne
case under a June 11, 2020 order.
1
In the Union case, plaintiff's counsel failed to verify the complaint as required
under Rule 4:67-2(a). The court denied the order to show cause without
prejudice because of the deficiency. Plaintiff subsequently filed a properly
verified identical second complaint. The court denied defendants' motion to
dismiss the second complaint as untimely. To the extent that argument is raised
on appeal, we find it lacks sufficient merit to warrant discussion in a written
opinion. R. 2:11-3(e)(1)(E).
A-4218-19
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II.
At this same time, in June 2020, we considered an identical OPRA records
request in Simmons v. Mercado, 464 N.J. Super. 77 (App. Div. 2020). We
concluded that the trial court in that case did not err in denying the OPRA
request made to the municipality's police department because the request should
have been directed to the municipal court. Id. at 82.
The trial court granted a stay of the proceedings in the Union case. In the
Bayonne case, defendants moved for reconsideration. On July 24, 2020, the trial
court granted reconsideration and vacated the counsel fees award.
The Supreme Court granted certification in Simmons, 244 N.J. 342(2020). We stayed the two pending appeals. After the Court issued its decision
on June 17, 2021, we requested supplemental briefs addressing the impact of the
Court's decision.
III.
In Simmons, the plaintiffs requested the Millville Police Department
(MPD) provide the following documents: (1) DWI/DUI complaints and
summonses; (2) drug possession complaints and summonses; (3) "Arrest
Listings;" and (4) drug paraphernalia complaints and summonses. 247 N.J. at
32. As in the cases here, MPD provided the arrest listings, but declined to
A-4218-19
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produce the records, stating they were within the possession of the municipal
court.
The Court concluded the requested documents were subject to OPRA
because the documents are "made, maintained or kept on file in the course of
. . . its official business. . . ." Id. at 39 (citing N.J.S.A. 47:1A-1.1). The Court
noted that the police department inputs the substantive information regarding
arrests used to populate the documents, thereby creating the documents and no
judge or judicial officer played any part in creating the documents or inputting
information into the documents. Id. at 40. Therefore, to advance OPRA's policy
of government transparency in light of modern-day technology, MPD was
required to produce the documents responsive to the plaintiff's OPRA request.
Id. at 42.
IV.
The Court's decision in Simmons resolved the issues presented in these
appeals. The orders in the Union and Bayonne cases compelling the production
of the requested documents are affirmed. We turn then to the counsel fees
awards.
Defendants in the Union case do not present any specific challenge to the
July 24, 2020 fee award other than reiterating they were not in violation of
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OPRA in denying the production of the requested documents and therefore ,
plaintiff was not entitled to an award of fees.
As a prevailing party, plaintiff is entitled to a reasonable attorney's fee.
N.J.S.A. 47:1A-6. We review a trial court's award of counsel fees for a clear
abuse of discretion. We "will disturb a trial court's award of counsel fees 'only
on the rarest of occasions, and then only because of a clear abuse of discretion.'"
Litton Indus., Inc. v. IMO Indus., Inc., 200 N.J. 372, 386 (2009) (quoting
Packard-Bamberger & Co. v. Collier, 167 N.J. 427, 444 (2001)).
In the Union case, the trial judge reviewed counsel's hourly fee, finding it
reasonable, and considered the appropriate factors under RPC 1.5. The court
awarded less than the amount requested by plaintiff. We discern no reason to
disturb the court's July 24, 2020 fee award.
In the Bayonne case, defendants' counsel conceded, that given the Court's
decision in Simmons, the trial court's July 24, 2020 order should be vacated and
the June 11, 2020 order reinstated.
For the reasons already stated, we reverse the trial court's July 24, 2020
order granting reconsideration. We remand to the trial court solely for the
reinstatement of the June 11, 2020 order awarding plaintiff counsel fees.
A-4218-19
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We affirm in A-4433-19. In A-4218-19, we reverse the July 24, 2020
order and remand to the trial court for reinstatement of the June 11, 2020 order.
We do not retain jurisdiction.
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