SCOTT KENNEDY VS. MONTCLAIR CENTER CORPORATION BUSINESSÂ IMPROVEMENT DISTRICT(L-0924-13, ESSEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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 NO. A-5422-14T4
SCOTT KENNEDY,
Plaintiff-Appellant/
Cross-Respondent,
v.
MONTCLAIR CENTER CORPORATION
BUSINESS IMPROVEMENT DISTRICT,
Defendant-Respondent/
Cross-Appellant.
___________________________________
Argued February 14, 2017 – Decided November 27, 2017
Before Judges Ostrer, Leone and Vernoia.
On appeal from Superior Court of New Jersey,
Law Division, Essex County, Docket No.
L-0924-13.
Richard Gutman argued the cause for
appellant/cross-respondent.
Dominic P. DiYanni argued the cause for
respondent/cross-appellant (Eric M. Bernstein
& Associates, LLC, attorneys; Mr. DiYanni, of
counsel and on the briefs).
The opinion of the court was delivered by
OSTRER, J.A.D.
The main issue in this appeal is whether the Open Public
Records Act (OPRA) entitles plaintiff to counsel fees he incurred
to secure a declaratory judgment that OPRA applies to defendant,
after defendant already satisfied his document request. We
conclude that OPRA's fee provision does not extend that far. We
rely on the statute's plain language, its fundamental purpose to
provide access to government records, and supporting caselaw.
As we reviewed the facts in our prior opinion, declaring
defendant subject to OPRA, we need not do so here. Kennedy v.
Montclair Center Corp. Business Improvement Dist., No. A-4591-12
(App. Div. June 24, 2014), certif. denied, 220 N.J. 269 (2015).
Suffice it to say that shortly after plaintiff filed his OPRA
complaint, defendant provided plaintiff copies of the documents
he requested at the five-cents-a-page charge consistent with
N.J.S.A. 47:1A-5(b). Kennedy, supra, slip op. at 3-5. However,
defendant continued to deny it was a "public agency," see N.J.S.A.
47:1A-1.1, that was required to promulgate an OPRA form, see
N.J.S.A. 47:1A-5(f), and appoint an OPRA custodian, N.J.S.A.
47:1A-1.1. Id., slip op. at 5-6. So, plaintiff persisted in his
lawsuit. Ibid. We ultimately reversed the trial court, and
declared defendant was a public agency under OPRA. Id., slip op.
at 16.
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But we did not address plaintiff's right to fees. Id., slip
op. at 6 n.3. That issue dominated the proceedings on remand.
Plaintiff sought attorney's fees of $156,866.50 and court costs
of $2,070.03. He incurred only $8,039.50 of that by the time he
received the documents. He contended that even if he were limited
to fees through the receipt of the documents, he was entitled to
$8,039.50, plus a thirty-five percent contingency enhancement of
$2,813.82. The trial court found that plaintiff was not entitled
to fees for work after he received the documents. The court then
reduced the fee award to $6000 without explanation.
On appeal, plaintiff argues he is entitled to the more than
$145,000 in fees he incurred after he obtained the documents. Even
if he were not entitled to those fees, he challenges the court's
reduction to $6000. Defendant cross-appeals, contending plaintiff
was not entitled to any fees at all.
Plaintiff's appeal requires us to construe N.J.S.A. 47:1A-6,
which (1) authorizes "[a] person who is denied access to a
government record by the custodian of the record" to seek relief
in Superior Court or before the Government Records Council (GRC);
and (2) mandates the award of "a reasonable attorney's fee" to "a
requestor who prevails in any proceeding . . . ." We interpret a
statute de novo. State v. Revie, 220 N.J. 126, 132 (2014).
3 A-5422-14T4
Plaintiff principally contends that "any proceeding"
encompasses post-access proceedings such as those here, to obtain
a declaration that an entity is a public agency obliged to appoint
a custodian and to promulgate a form. We disagree.
The section begins by authorizing a "person who is denied
access to a government record" to seek relief from the courts or
the GRC. The provision then addresses who may bring such actions;
the proceeding's summary nature; who has the burden of proof; the
right to an order to compel access; and, finally, the right to
fees. N.J.S.A. 47:1A-6 states in full:
A person who is denied access to a government
record by the custodian of the record, at the
option of the requestor, may:
institute a proceeding to challenge the
custodian's decision by filing an action in
Superior Court which shall be heard in the
vicinage where it is filed by a Superior Court
Judge who has been designated to hear such
cases because of that judge's knowledge and
expertise in matters relating to access to
government records; or
in lieu of filing an action in Superior Court,
file a complaint with the Government Records
Council established pursuant to section 8 of
P.L. 2001, c. 404 (C. 47:1A-7).
The right to institute any proceeding under
this section shall be solely that of the
requestor. Any such proceeding shall proceed
in a summary or expedited manner. The public
agency shall have the burden of proving that
the denial of access is authorized by law. If
it is determined that access has been
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improperly denied, the court or agency head
shall order that access be allowed. A
requestor who prevails in any proceeding shall
be entitled to a reasonable attorney's fee.
[N.J.S.A. 47:1A-6 (emphasis added).]1
Plaintiff contrasts the reference to "any proceeding" in the
section's last sentence, which authorizes fees, with the reference
to "any proceeding under this section" and "any such proceeding"
in the last paragraph's first two sentences. He argues that those
two sentences refer to actions to secure access, based on the
section's introductory sentence, which authorizes lawsuits or
proceedings "by a person denied access." Since the reference to
"any proceeding" in the last sentence is unqualified, he contends
the Legislature intended to encompass proceedings designed to
achieve relief other than access, such as the declaration of OPRA
coverage he secured here. Notably, prior versions of the
legislation stated that "[a] requestor who prevails in any
proceeding instituted under this section shall be entitled to
1
Defendant places undue weight on the codified section's title,
"Proceeding to challenge denial of access to record." A statute's
enacted title may illuminate the Legislature's intended meaning
of an ambiguous provision. See Sayreville v. Pennsylvania R. Co.,
26 N.J. 197, 206 (1957); Fasching v. Kallinger, 211 N.J. Super.
26, 45 (App. Div. 1986). However, the legislation, as finally
passed by the Legislature and reflected in the Advance Law, does
not contain the sectional titles. See Advance Law, L. 2001, c.
404, approved January 8, 2002; see also State v. Darby, 246 N.J.
Super. 432, 440-41 (App. Div.), certif. denied, 126 N.J. 342(1991); N.J.S.A. 1:1-6.
5 A-5422-14T4
taxed costs, and may be awarded a reasonable attorney's fee."
Assembly Bill No. 1309 (Second Reprint) § 7, 209th Legislature
(March 27, 2000) (emphasis added). However, a later Senate
amendment deleted "instituted under this section" and mandated a
reasonable fee award. Assembly Bill No. 1309 (Fourth Reprint) §
7, 209th Legislature (May 3, 2001). The enacted bill retained
this change. L. 2001, c. 404, § 7.2
We reject plaintiff's interpretation. We begin with the
section's plain language, because if the language is clear, our
task is complete. In re Kollman, 210 N.J. 557, 568 (2012). The
right to fees expressly belongs to "a requestor." N.J.S.A. 47:1A-
6; see also Mason v. City of Hoboken, 196 N.J. 51, 76 (2008) ("We
therefore hold that requestors are entitled to attorney's fees
under OPRA . . . ." (emphasis added)). For purposes of securing
a fee award, a party plainly ceases being a "requestor" after he
or she obtains full access to documents. Thus, "any proceeding"
in which a "requestor . . . prevails," is one in which access is
achieved.3 That access can be achieved as a result of, or in
2
Although embodied in section 7 of the chapter law, the provision
is codified at N.J.S.A. 47:1A-6.
3
Even when obtaining access, a requestor must show a connection
between that relief and the lawsuit, to demonstrate that the
requestor prevailed and is entitled to fees. The "catalyst theory"
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conjunction with, other relief, such as a declaration that an
agency is subject to OPRA. See, e.g., Paff v. N.J. State Firemen's
Ass'n, 431 N.J. Super. 278 (App. Div. 2013) (reversing trial
court's determination that association was not a public agency and
dismissing complaint for access).4 But, a party who pursues
additional relief after obtaining access does so as someone other
than a "requestor."
Certainly, a hypothetical plaintiff who sought only a
declaratory judgment that an entity was a public agency, without
also requesting documents, would be ineligible for fees according
to the section's plain language. Such a plaintiff would not be a
"requestor." The result should be no different for plaintiff
here, who started out being a requestor, obtained the documents
requested at the copying fee he maintained applied, but then
persisted in seeking the same declaratory relief as our
hypothetical plaintiff.
We shall not divorce the final sentence from the section as
a whole. "[I]n fulfilling our responsibility in interpreting
legislation, 'we must not be guided by a single sentence or member
describes that requisite showing. See Mason, supra, 196 N.J. at
76. We address the theory below.
4
Notably, in Paff, the defendant both refused to acknowledge OPRA
coverage and refused to release certain requested records. 431
N.J. Super. at 285; see also N.J.S.A. 47:1A-10.
7 A-5422-14T4
of a sentence, but [should] look to the provisions of the whole
law, and to its object and policy.'" Waterfront Comm'n of N.Y.
Harbor v. Mercedes-Benz of N. Am., Inc., 99 N.J. 402, 414 (1985)
(quoting Richards v. United States, 369 U.S. 1, 11, 82 S. Ct. 585,
591, 7 L. Ed. 2d 492 499 (1962)). N.J.S.A. 47:1A-6 pertains to
the right of "[a] person who is denied access" to secure access
by bringing "a proceeding" in Superior Court or before the GRC.
The section then makes clear that only "the requestor" has the
right to institute "any proceeding under this section," using that
phrase to encompass both of the just-described proceedings, namely
those to gain access in the Superior Court or in the GRC. Ibid.The section then requires expedition of "[a]ny such proceeding,"
again including both a proceeding to gain access in the Superior
Court and in the GRC. Ibid. The section then mandates fees to a
requestor who prevails in "any proceeding." Ibid.There is no reason to read "any proceeding" in that sentence
to refer to anything other than what was referenced by "any
proceeding under this section" or "any such proceeding," namely a
proceeding to gain access in the Superior Court or in the GRC.
Ibid. The entire section pertains to the nature of such an access-
seeking proceeding, and specifies the relief obtainable - an order
compelling access. We are satisfied that "any proceeding," in
accord with the rest of the section, consists only of one seeking
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access, alone or in conjunction with other relief, before the
Superior Court or the GRC, as authorized by N.J.S.A. 47:1A-6.
We must also read N.J.S.A. 47:1A-6 "in context with related
provisions so as to give sense to the legislation as a whole."
DiProspero v. Penn, 183 N.J. 477, 492 (2005). A review of OPRA
shows that it explicitly provides for no proceeding other than the
one for access authorized in N.J.S.A. 47:1A-6. Thus, there is no
other proceeding the Legislature would have referenced other than
the proceeding for access it authorized in N.J.S.A. 47:1A-6.5
Defendant concedes that a proceeding to obtain access under
N.J.S.A. 47:1A-6 is the only proceeding OPRA authorizes, but he
nonetheless contends that the last sentence refers to any action
brought by a requestor. Defendant's position reads the last
sentence too broadly, and takes it out of context of the section
and the act.
5
We need not address the extent to which a citizen may have an
implied right of action to enforce non-access-related aspects of
OPRA through a declaratory judgment action. Cf. In re N.J.
Firemen's Ass'n Obligation to Provide Relief Applications Under
Open Public Records Act, 443 N.J. Super. 238, 252-59 (App. Div.
2015) (holding that custodians do not have an implied private
right of action under OPRA to seek declaratory judgment under
OPRA), rev'd on other grounds, 230 N.J. 258 (2017). Even if a
citizen has a right to bring a proceeding the Legislature did not
expressly envision, there is no reason to believe the Legislature
envisioned granting fees in such a proceeding.
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We do not discern a contrary intent expressed by the
legislative amendment of the last sentence. The "under this
section" language was unnecessary to limit the fee awards to a
denial-of-access proceeding. That is the only type of proceeding
in the section and in the act, and only a "requestor" is entitled
to fees. Notably, neither the committee reports (nor other
legislative materials brought to our attention) express an
intention to mandate fees for proceedings in which the initiating
party no longer seek access.
We acknowledge the potential salutary effect of securing a
declaration that OPRA covers an entity that denied it was covered,
even after access is provided. It may assure future compliance
with OPRA mandates, as opposed to relying on voluntary
accommodations. However, "OPRA's purpose is to maximize public
knowledge about public affairs in order 'to ensure an informed
citizenry and to minimize the evils inherent in a secluded
process.'" Mason, supra, 196 N.J. at 64-65 (quoting Asbury Park
Press v. Ocean Cnty. Prosecutor's Office, 374 N.J. Super. 312, 329
(Law Div. 2004)). That knowledge is secured under OPRA through
access to documents. Id. at 78 ("The statute is designed . . .
to promote prompt access to government records . . . .").
Furthermore, the fee provision is designed "[t]o ensure that the
average citizen is not deterred from challenging an agency's
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decision [denying access] due to the financial risk involved
. . . ." In re N.J. Firemen's Ass'n Obligation to Provide Relief
Applications Under the Open Public Records Act, 230 N.J. 258, 276
(2017).
The fee provision is not designed to incentivize private
attorneys general to bring any action to enforce other aspects of
OPRA. The Supreme Court has interpreted the fee provision in a
way to avoid "more aggressive litigation tactics and fewer efforts
at accommodation." Mason, supra, 196 N.J. at 78. As we recently
observed in Stop & Shop Supermarket Co. v. Cnty. of Bergen, 450
N.J. Super. 286 (App. Div. 2017), OPRA does not create an
entitlement to attorney's fees in all cases:
Our Supreme Court in Mason . . . emphasized
such an entitlement could "upend the
cooperative balance OPRA strives to attain,"
give plaintiffs "an incentive to file suit"
to obtain "an award of attorney's fees," and
give agencies "reason not to disclose
documents voluntarily." "OPRA cases designed
to obtain swift access to government records
would end up as battles over attorney's fees."
[Ibid. (quoting Mason, supra, 196 N.J. at 78-
79).]
Although we have not previously addressed the precise issue
presented here, our caselaw is consistent with the result we reach.
In Stop & Shop, supra, 450 N.J. Super. at 289, the plaintiff sought
a declaratory judgment that the county government denied it access
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to certain documents, although the plaintiff eventually obtained
access in response to a subsequent request. We held the OPRA
litigation was moot "because [the plaintiff] already received the
documents it sought." Id. at 292. The plaintiff's request for
fees did not change that analysis. We reasoned: "To be entitled
to such counsel fees under OPRA, a plaintiff must be a prevailing
party in a lawsuit . . . that was brought to enforce his or her
access rights." Ibid. (quoting Smith v. Hudson Cnty. Register,
422 N.J. Super. 387, 393 (App. Div. 2011)). We noted that the
defendants "voluntarily produced the records before" the plaintiff
sued; thus the plaintiff was not a prevailing party under section
6. Id. at 293.
Plaintiff here contends that Smith, supra, supports his
position that his access to documents did not cut off eligibility
for fees. We disagree. After Smith obtained requested documents,
he persisted in litigation over the copying fees the defendant
charged. He ultimately prevailed in establishing they exceeded
the level OPRA allowed. We held he was entitled to fees for that
subsequent stage of litigation. We did so because the defendant
was still denying access to the documents by charging copying
"rates . . . improper under OPRA." 422 N.J. Super. at 392-93.
"Excessive copying charges can, in practice thwart a citizen's
right to access public records under OPRA." Id. at 397.
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Plaintiff had a similar claim but only until defendant
provided the documents to plaintiff at five cents a page, as
plaintiff demanded. Plaintiff was entitled to a reasonable fee
to achieve that access under N.J.S.A. 47:1A-6, but that section
did not authorize fees for further litigation after access was
given. While plaintiff's continued post-access litigation may
indirectly promote future requestors' access rights, plaintiff had
already prevailed in vindicating his.
In sum, the trial court correctly denied plaintiff's claim
for fees that he incurred after he obtained access to the requested
documents, at the per-page copying charge he contended applied.
We turn next to the issue of the fees incurred before
plaintiff achieved access. Plaintiff contends the court
improperly reduced the amount without justification. Defendant
contends on cross-appeal that plaintiff was entitled to nothing,
as it did not really deny access to him at all. As to these
issues, we agree with plaintiff.
Adopting the "catalyst theory", the Mason Court held:
[R]equestors are entitled to attorney's fees
under OPRA, absent a judgment or an
enforceable consent decree, when they can
demonstrate: (1) "a factual causal nexus
between plaintiff's litigation and the relief
ultimately achieved"; and (2) "that the relief
ultimately secured by plaintiffs had a basis
in law."
13 A-5422-14T4
[Mason v. City of Hoboken, 196 N.J. 51, 76
(2008) (quoting Singer v. State, 95 N.J. 476,
494 (1984)).]
The trial court here noted that defendant insisted upon
providing access to the requested documents at a twenty-cents-a-
page copying charge, until plaintiff filed suit. Then, defendant
relented and provided the copies at the generally applicable five-
cents-a-page rate. See N.J.S.A. 47:1A-5(b). The court recognized
it had not resolved whether defendant was entitled to charge twenty
cents a page. See N.J.S.A. 47:1A-5(c). Still, the court found
that "plaintiff has established a causal nexus" between its lawsuit
and the five-cents-a-page copying charge.
On appeal, defendant renews its argument that plaintiff was
obliged to demonstrate that it effectively denied access by
charging an unlawful copying rate. We disagree. Defendant's
argument would essentially require a decision on the merits of the
issue that the settlement or voluntary disclosure was intended to
avoid. Mason rejects that view by requiring the two-part showing
described above.
We defer to the trial court's finding of a causal nexus,
which was well-supported in the record. See Rendine v. Pantzer,
141 N.J. 292, 317 (1995) (stating that appellate courts will
disturb a trial court's fee determinations "in the rarest
occasions, and then only because of a clear abuse of discretion").
14 A-5422-14T4
Defendant did not coincidentally lower its copying rate after the
suit was filed. It lowered its rate because the suit was filed,
even if its asserted motivation was to reduce litigation costs.
See Smith, supra, 422 N.J. Super. at 394 (stating that a party
must demonstrate that the lawsuit was a "necessary and important"
factor in obtaining relief) (quoting Teeters v. Div. of Youth &
Family Servs., 387 N.J. Super. 423, 432 (App. Div. 2006)).
As for the second prong, although the trial court did not
expressly address it, we are satisfied that the relief "had some
basis in law." The five-cents-a-page copying rate is the general
standard. N.J.S.A. 47:1A-5(b).6 Defendant would have borne the
burden to demonstrate grounds for deviating from that. See Smith
v. Hudson Cnty. Register, 411 N.J. Super. 538, 572 (App. Div.
2010), superseded on other grounds by statute, L. 2010, c. 75, §
5. In sum, we shall not disturb the trial court's determination
6
Public agencies are required to charge five cents a page, or
their actual costs, if higher. N.J.S.A. 47:1A-5(b). Defendant
admitted that its costs of materials and supplies were less than
five cents a page. Adding its labor costs allegedly increased its
costs over that amount. But, labor costs are not a permissible
consideration in calculating actual costs under N.J.S.A. 47:1A-
5(b), except as provided by N.J.S.A. 47:1A-5(c). That subsection
allows an agency to exceed the five-cents-a-page rate if it can
show that as a result of "the nature, format, manner of collation
or volume of a government record," the document "cannot be
reproduced by ordinary document copying equipment in ordinary
business size or involves an extraordinary expenditure of time and
effort . . . ." Ibid.
15 A-5422-14T4
that plaintiff prevailed in securing access to the requested
documents by obtaining defendant's reduction of the copying costs
to five cents a page, and was entitled to a reasonable fee incurred
to achieve that result.
However, we cannot affirm the court's reduction of the
requested fee to $6000 without explanation. The court was obliged
to determine the lodestar fee, and then determine whether that
amount should be adjusted. New Jerseyans for a Death Penalty
Moratorium v. N.J. Dep't of Corr., 185 N.J. 137, 153 (2005);
Rendine, supra, 141 N.J. at 337. The court was also required to
set forth its findings with sufficient detail to enable appellate
review. See Curtis v. Finneran, 83 N.J. 563, 569-70 (1980); R.
1:7-4. We are constrained to remand for those purposes, and to
vacate the $6000 award.
Affirmed in part; vacated and remanded in part. We do not
retain jurisdiction.
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