LOIS KAHLER v. NEW JERSEY STATE POLICE CUSTODIAN OF RECORDS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3790-09T3

LOIS KAHLER,

Plaintiff-Appellant,

v.

NEW JERSEY STATE POLICE,

CUSTODIAN OF RECORDS,

Defendant-Respondent.

_______________________________

January 25, 2011

Argued January 5, 2011 - Decided

Before Judges Sapp-Peterson and Fasciale.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-2666-09.

Rotimi A. Owoh argued the cause for appellant.

Lewis A. Scheindlin, Assistant Attorney General, argued the cause for respondent (Paula T. Dow, Attorney General, attorney; Mr. Scheindlin, of counsel and on the brief; Jennifer S. Hsia, Deputy Attorney General, on the brief).

PER CURIAM

Plaintiff, Lois Kahler, appeals from the trial court order denying her request for an award of attorney fees as a prevailing party after the court granted her request for the release of certain records pursuant to plaintiff's common law right of access to public records. We affirm substantially for the reasons expressed by Judge Linda R. Feinberg in her February 5, 2010 written opinion.

Plaintiff filed a request for criminal investigatory records in connection with the death of her daughter. Those records were being maintained by defendant, the New Jersey State Police (NJSP), as the custodian of the records. NJSP denied the request, stating that "[c]riminal investigatory records are exempt from public access" under the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13. Plaintiff thereafter commenced an action in the Law Division seeking to compel the release of the records pursuant to OPRA and under her common law right of access to public records. In addition, plaintiff sought an award of counsel fees.

Following a hearing, the court denied relief to plaintiff pursuant to OPRA, concluding that the records were properly exempted from disclosure under OPRA as "criminal investigatory records." N.J.S.A. 47:1A-1 and -1.1. The court also agreed that pursuant to Executive Order No. 48 (1968) (Executive Order), NJSP was prohibited from releasing its investigative files to a person not part of a duly recognized law enforcement agency absent a court order or order of the Governor. Ibid.; see also N.J.S.A. 47:1A-9(a). The court noted, however, that the Executive Order does not compel a finding that NJSP records are confidential but only that the court make "that determination independently according to OPRA and related case law."

The court next considered whether plaintiff was entitled to the documents pursuant to her common law right of access to public records. After determining that (1) the records were common law public documents, (2) plaintiff had an interest in knowing the circumstances surrounding her daughter's death, and (3) the State's interest in preventing disclosure did not outweigh her right of access, the court entered judgment directing that all documents at issue were "to be released, under a protective order, pursuant to [Lois Kahler]'s common law claim[,]" but that Kahler would be the "only individual to be issued copies of the . . . documents[.]"

Turning to plaintiff's request for counsel fees, Judge Feinberg rejected plaintiff's contention that Mason v. City of Hoboken, 196 N.J. 51 (2008), stood for the proposition that plaintiff, as a prevailing party, was entitled to an award of counsel fees for disclosure premised upon her common law right of access:

Under OPRA, "[i]f it is determined that access has been 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.

However, plaintiff in this case has prevailed under the common law right to access, and not OPRA. Despite plaintiff's assertion that under Mason, 196 N.J. at 5[1], attorney's fees should be granted under the common law claim, the court is not persuaded that such fees are warranted. While OPRA defines a clear category of documents that the public may access as [a matter] of statutory right, the common law provides access to a vague category of documents only at the discretion of the court after an extensive weighing process. To penalize defendants who choose to withhold documents under the assumption that they are not proper for public access would motivate custodians to release sensitive information to all requestors in order to escape potential liability, despite possible overriding interests in keeping the information private.

The present appeal followed. On appeal, plaintiff raises the following points for our consideration:

POINT I

THE TRIAL COURT ERRED BECAUSE THE RECORDS IN ISSUE ARE SUBJECT TO DISCLOSURE TO PLAINTIFF (MOTHER OF THE DECEASED) PURSUANT TO BOTH OPRA AND THE COMMON LAW RIGHT OF ACCESS.

POINT II

THE TRIAL COURT ERRED BECAUSE COUNSEL FEES AND COSTS ARE AVAILABLE IN NEW JERSEY UNDER BOTH OPRA AND THE COMMON LAW RIGHT OF ACCESS UNTIL MASON IS OVERRULED OR OTHERWISE CHANGED BY THE NEW JERSEY SUPREME COURT.

Plaintiff's arguments set forth in Point I are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We confine our discussion to plaintiff's argument advanced in support of Point II.

We reject plaintiff's argument that she is entitled to recover counsel fees as a prevailing party under her common law right of access to public records pursuant to Mason. The language in Mason upon which plaintiff asserts her entitlement to counsel fees provides: "Absent an apparent, theoretical basis for such a distinction, we conclude that the catalyst theory applies to common law suits as well." Mason, supra, 196 N.J. at 79. NJSP argues that this language is only intended to apply in those circumstances where a plaintiff brings both an OPRA and a common law right of access complaint and "that suit is the catalyst for release of the records without a court judgment[.]" NJSP contends this is the only logical interpretation of the Court's language because in the absence of a judgment, it will not be clear whether the release of the requested documents was prompted by the OPRA claim or the common law claim.

We do not agree with this interpretation. If the Supreme Court intended to limit application of the catalyst theory to common law actions brought simultaneously with an OPRA claim, it could have said so. Instead, we believe the Court's language was intended to make clear that application of the "catalyst theory" applies to actions brought under either or both OPRA and the common law right of access to public records, as long as a plaintiff can "demonstrate: (1) 'a factual nexus between [the] plaintiff's litigation and the relief ultimately achieved;' and (2) 'that the relief ultimately secured by [the] plaintiffs had a basis in law.'" Mason, supra, 196 N.J. at 76 (quoting Singer v. State, 95 N.J. 487, 494, cert. denied, 469 U.S. 832, 105 S. Ct. 121, 83 L. Ed. 2d 64 (1984)). Upon satisfying those prongs, a plaintiff is entitled to an award of counsel fees under the catalyst theory as a prevailing party.

There is, however, an "apparent, theoretical basis" for not applying the catalyst theory to a request for criminal investigative records submitted to the NJSP. In Mason, the plaintiff sought disclosure of budgetary information. Here, plaintiff sought the disclosure of criminal investigative records. The Executive Order prohibits NJSP from disclosing such records absent a court order or an order of the Governor. The Executive Order provides in pertinent part:

State of New Jersey

Executive Order #48

Governor Richard J. Hughes

WHEREAS, Certain persons have suggested that investigative files in the possession of the New Jersey State Police should be made available for inspection contrary to long-standing and well established policy against such inspection; and

WHEREAS, Recognition of the necessity for the protection of such files in the public interest is clearly established . . . [.]

. . . .

1. No person having custody of State Police investigative files shall turn over the same to any other person who is not a member of a duly recognized law enforcement agency unless ordered to do so by a court of competent jurisdiction or by the Governor of the State of New Jersey.

Thus, it is the very judicial process to which a plaintiff seeking such records from the NJSP must turn for relief that plaintiff urges entitles her to counsel fees as a prevailing party.

However, "[u]nlike a citizen's absolute statutory right of access [under OPRA], a plaintiff's common-law right of access must be balanced against the State's interest in preventing disclosure." Higg-A-Rella, Inc. v. County of Essex, 141 N.J. 35, 46 (1995). Consequently, although a requestor may establish "'a wholesome public interest or a legitimate private interest'" in the public document, id. at 47 (quoting Loigman v. Kimmelman, 102 N.J. 98, 112 (1986)), release is not automatic. Rather, a court must then engage in a deliberative process that involves consideration of a number of factors in order to determine whether the requestor's interest in access to the document outweighs the State's interest in non-disclosure. Id. at 46-48. Therefore, disclosure pursuant to the common law right of access contemplates a fact-specific weighing process that will vary in each situation. Id. at 49. We are in complete agreement with Judge Feinberg's reasoning that the NJSP should not be penalized for withholding documents under the assumption that they are not proper for public access, particularly when that assumption finds support in the Executive Order.

The records for which plaintiff sought access were unquestionably criminal records maintained by the NJSP. The requirement of a court order for the release of such records contemplates resort to the courts as a condition precedent to their release. We do no believe that adherence to this process should then form the basis for an award of counsel fees to the successful plaintiff unless the court finds NJSP's interest in non-disclosure was "slight" or "non-existent." Loigman, supra, 102 N.J. at 105. No such finding was made here. Therefore, Judge Feinberg properly denied the counsel fee request.

A