CHARLES X. KIEFFER v. HIGH POINT REGIONAL HIGH SCHOOL

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1737-09T2

CHARLES X. KIEFFER,

Plaintiff-Appellant,

v.

HIGH POINT REGIONAL HIGH SCHOOL

and HIGH POINT REGIONAL HIGH

SCHOOL BOARD OF EDUCATION,

Defendants-Respondents.

_________________________________________

December 28, 2010

Submitted November 15, 2010 - Decided

Before Judges Kestin and Newman.

On appeal from the Superior Court of New Jersey, Law Division, Sussex County, Docket No. L-873-08.

Kelly & Ward, L.L.C., attorneys for appellant (Kevin D. Kelly, on the brief).

Adams Stern Gutierrez & Lattiboudere, L.L.C., attorneys for respondents (Derlys Maria Gutierrez, of counsel and on the brief).

PER CURIAM

Plaintiff Charles X. Kieffer appeals from an order denying access to a public school district employee's letter of resignation as the high school varsity baseball coach and from the amount of attorneys' fees awarded for withholding documents requested under the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, and the common-law right of access. We affirm.

The relevant facts may be summarized as follows. Plaintiff, along with other parents, were dissatisfied with the way in which the varsity baseball coach was handling the school's baseball team. He and other parents made complaints to school officials, which led to an investigation. Following the investigation, the coach was admonished for his behavior. He resigned from his coaching position in a letter of resignation of October 10, 2008.

Plaintiff made a number of requests under OPRA for documents in connection with the investigation, including a report that was generated as a result of the investigation. A lawsuit to obtain these documents, as well as for other relief, was filed on December 23, 2008.

Counsel for defendants, High Point Regional High School and High Point Regional High School Board of Education, entered the litigation at this point. The parties agreed that no documents would be disclosed until a meeting with counsel took place. There were exchanges of correspondence objecting to some of the requests, as well as the objections by plaintiff to the responses of the Board. Additional documents were provided on May 8, 2009, as a result of the communications between counsel for the parties.

A scheduling/pre-trial conference order was entered by the trial court on August 4, 2009. Counsel for the parties conferred and resolved all outstanding issues with the exception of the resignation letter and attorneys' fees. The matter was heard by Assignment Judge Bozonelis on October 23, 2009. The trial judge conducted an in camera review of the coach's resignation letter and concluded that it was confidential under OPRA and the common-law right of access. The trial judge found that this was purely a personnel matter and that there was "no information that relate[d] to any type of settlement" that would affect plaintiff's overall request. The court determined that this particular document should remain confidential under the OPRA statute, sub-section 10, and under the common-law right of access as well, weighing the public interest against the privacy and confidentiality interests involved.

In connection with plaintiff's attorneys' fee request, the trial judge indicated he was "not going to award attorney's fees for this particular issue with respect to the resignation letter because you're not a prevailing party in that regard." The attorney fee issue was submitted to the court on the basis of a certification of hourly charges and responses thereto. Plaintiff's counsel charged an hourly rate of $300 and sought remuneration for approximately sixty-four hours plus costs for a total of $19,593.35 for services rendered from September 22, 2008 through November 5, 2009.

In arguing against the hourly charge, counsel for defendants indicated that her firm's hourly charge was $150. She pointed out that the taxpayers would be paying the bill for legal fees and that the hourly rate requested by plaintiff's counsel was unreasonable in view of the fact that a Board of Education with a limited budget was the payer. Counsel for defendants also stated that there was also no proof that plaintiff's attorney's hourly rate was "consistent with what other attorneys practicing in this area charge."

In fixing the award of counsel fees of $3,831 pursuant to N.J.S.A. 47:1A-6, the trial court limited the charges from September 22, 2008, to May 8, 2009, when all of the documents were furnished, except for the coach's letter of resignation.1 The amount of time expended during that period from when the first request for documents was made totaled 15.5 hours. There was also a filing fee of $200, service of process fee of $53.50, and a $90 charge for other services. The court reduced the hourly rate from $300 to $225, which was the midpoint between what defendants paid their attorney and what plaintiff's counsel's hourly charge was. The court found that it would not award attorneys' fees "with respect to the resignation letter because [plaintiff was] not a prevailing party in that regard."

On appeal, plaintiff raises the following issues for our consideration:

POINT I

THE APPELLANT IS ENTITLED TO AN AWARD OF COUNSEL FEES AND COSTS OF THIS LITIGATION FROM THE DEFENDANTS.

POINT II

THIS PUBLIC EMPLOYEE'S RESIGNATION LETTER IS A PUBLIC DOCUMENT PURSUANT TO OPRA AND THE COMMON LAW.

A. OPRA.

B. COMMON LAW.
 

Under the fee-shifting provisions of OPRA, it is up to the court to determine whether the custodian of records "unjustifiably denied access to [a] record in question." New Jerseyans for a Death Penalty Moratorium v. N.J. Dep't of Corrs., 185 N.J. 137, 153 (2005) (citing N.J.S.A. 47:1A-6).

Where that is the case, the requestor "is entitled to a 'reasonable attorney's fee.'" Ibid. (quoting N.J.S.A. 47:1A-6).

The reasonableness of the fee is "the number of hours reasonably expended multiplied by a reasonable hourly rate," commonly referred to as the "lodestar." Rendine v. Pantzer, 141 N.J. 292, 334-35 (1995). In deciding the number of hours reasonably expended, the trial court recognized that the request for documents was essentially resolved by May 8, 2009. The delay in defendants' response was not justified, which entitled plaintiff to an award of attorneys' fees through May 8, 2009. However, it was clear that after that date, the only disputed issue remaining was whether the varsity baseball coach's letter of resignation was subject to disclosure under OPRA or the common law. Because that issue was decided adversely to plaintiff, plaintiff was not a "prevailing party" entitled to attorneys' fees. We are satisfied that the number of hours expended was properly determined by the trial court.

With regard to the hourly rate, unlike the decision in New Jerseyans for a Death Penalty Moratorium, supra, 185 N.J. at 146, where the attorney challenging the fee award submitted "certifications from five attorneys litigating OPRA cases" to support his position that his hourly rate was reasonable, no such support was provided here. Moreover, it is appropriate to consider that any costs imposed on a governmental entity are ultimately borne by the public. Here, the trial court recognized that a public entity was involved and the amount that the school district pays its own attorneys was half of the rate sought by plaintiff's counsel. By making an award halfway between the defendants' hourly rate for attorney services and that of plaintiff's attorney, we are satisfied that the trial judge properly exercised his discretion in making the adjustment he did to the hourly rate.

Plaintiff argues in his second point that the baseball coach's resignation letter was a public document under OPRA or the common law and should have been disclosed. We disagree.

Under OPRA, a personnel record is subject to very limited disclosure. N.J.S.A. 47:1A-10. Additionally, Executive Order No. 11 (Nov. 15, 1974), Laws of New Jersey 1974 at 765-66, issued by Governor Brendan Byrne, limited the release of personnel records by permitting the disclosure of only certain information in an individual's personnel file. Executive Order 11 expressly provided as follows:

2. Except as otherwise provided by law or when essential to the performance of official duties or when authorized by a person in interest, an instrumentality of government shall not disclose to anyone other than a person duly authorized by this State or the United States to inspect such information in connection with his official duties, personnel or pension records of an individual, except that the following shall be public:

a. An individual's name, title, position, salary, payroll record, length of service in the instrumentality of government and in the government, date of separation from government service and the reason therefore; and the amount and type of pension he is receiving[.]

[Id. at 766.]

The trial court reviewed the resignation letter in camera and determined that it was not subject to disclosure by the Act or the common law. We conducted our own in camera review of the letter and agree with the trial judge's assessment that the letter contains personnel information beyond what is required by law to be released regarding the former coach's resignation.

Moreover, there is no substance to the contention that this case involved any secret deals or documents so as to require public disclosures. The superintendent, Dr. John Hannum, certified that no deal was made and no public funds were expended in connection with the coach's resignation. Indeed, as defendants note, the coach "remains an active teaching staff member in the . . . [s]chool [d]istrict." As defendants commented in their brief: "it is no secret that numerous complaints had been voiced about [the coach's] rapport with the student athletes and that the immense pressure from the community caused him to resign from his coaching position."

Nor was plaintiff entitled to disclosure of the resignation letter under the common-law right of access. At common law, the right to inspect public records extends to a document made by a public employee "in the exercise of public functions." Bd. of Educ. of Newark v. N.J. Dep't of Treasury, 145 N.J. 269, 279 (1996) (quoting Nero v. Hyland, 76 N.J. 213, 222 (1978)). Here, plaintiff's interest is not questioned and it may involve a matter of public concern. However, plaintiff's common-law right is not absolute. See S. N.J. Newspapers, Inc. v. Twp. of Mt. Laurel, 141 N.J. 56, 72 (1995) (citations omitted). A balancing test is used to determine whether his interest in gaining access to public records outweighs the State's interest in confidentiality and the coach's privacy interest. See id. at 72-73. Two conditions must be satisfied.

First, the person seeking access must establish an interest in the subject matter of the material. Second, the citizen's common-law right to gain access to [common-law] public records requires a balancing of interests. . . . [A] plaintiff's common-law right of access must be balanced against the State's interest in preventing disclosure.

[Higg-A-Rella, Inc. v. Cty. of Essex, 141 N.J. 35, 46 (1995) (first alteration in original) (citations and internal quotation marks omitted).]

Here, the school district responded to the complaints leveled at the varsity baseball coach by conducting an investigation. The outcome of that investigation resulted in an admonishment. The reason for the resignation would not change the way in which the school district handles internal investigations. There is no evidence to suggest that defendants or any school district official did anything inappropriate in this matter. The decision to resign was occasioned by the immense pressure from the community. The resignation letter explains the coach's personal reasons for resigning and contains confidential information. Stated plainly, it is none of the public's business. The individual's right to privacy and the State's interest in confidentiality clearly outweighed the need for any public disclosure.

1 Plaintiff's counsel took issue with defendants' responses and sought additional documents in a May 27, 2009 letter, suggesting not all documents were in fact furnished by May 8, 2009. However, plaintiff's counsel indicated at the October 23, 2009 hearing that defendant's counsel had represented, and plaintiff's counsel accepted, that all responsive documents aside from the resignation letter had been provided.