JESSE WOLOSKY v. TOWNSHIP OF SPARTA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1974-11T1

JESSE WOLOSKY,

Plaintiff-Respondent,

v.

TOWNSHIP OF SPARTA,

Defendant-Appellant.

_______________________________________

December 13, 2012

Argued November 7, 2012 Decided

Before Judges Yannotti and Harris.

On appeal from the Government Records Council, Complaint No. 2008-219.

Richard A. Stein argued the cause for appellant (Laddey, Clark & Ryan, LLP, attorneys; Mr. Stein, on the brief).

Walter M. Luers argued the cause for respondent

PER CURIAM

Defendant Township of Sparta (Township) appeals from a final determination of the Government Records Council (GRC) awarding plaintiff Jesse Wolosky (Wolosky) attorney's fees as a

prevailing party in a proceeding brought pursuant to the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13. For the reasons that follow, we affirm in part and reverse in part.

On July 9, 2008, Wolosky submitted an OPRA request to the Township for copies of the minutes of the closed or executive session meetings held by the Township's Council on various dates from January 8, 2008 to June 26, 2008. Wolosky also requested copies of certain so-called "Friday Memos" that the Township's Manager Henry Underhill (Underhill) submitted to the Council from January 1, 2007 to June 30, 2008.

The Township's Custodian of Records (Custodian) provided Wolosky with copies of the Council's executive session minutes, with redactions. The Custodian also provided Wolosky with copies of twenty-four redacted "Friday Memos" from 2008 with redactions, but did not provide him with any of the "Friday Memos" for 2007.

On July 31, 2008, Wolosky submitted another OPRA request to the Township, again seeking copies of the "Friday Memos" that Underhill submitted to the Council from January 1, 2007 to December 31, 2007. The Custodian provided Wolosky with the memos, with redactions.

On September 29, 2008, Wolosky filed a denial-of-access complaint with the GRC, alleging that the Custodian did not comply with OPRA in responding to his document requests. Wolosky asked the GRC to order the Custodian to produce unredacted versions of the documents, or submit each document for in camera review by the GRC, along with an index identifying the legal basis for each redaction.

The GRC issued a decision and order, which were distributed on September 30, 2009, in which it determined that the Custodian's response to the July 9, 2008 request was insufficient because the Custodian failed to provide the lawful basis for the redactions. The GRC additionally determined that the Custodian's response to the July 31, 2008 OPRA request was insufficient because the Custodian did not: provide the extended date by which the records would be provided; produce the records until twenty-two days after receipt of the request and provide the lawful bases for the redactions.

The GRC stated that, in accordance with Paff v. New Jersey Department of Labor, Board of Review, 379 N.J. Super. 346 (App. Div. 2005), it must undertake an in camera review of the records to determine whether the redacted information was exempt from disclosure under OPRA. Thereafter, the Township furnished the GRC with copies of the unredacted documents, along with a redaction index and a certification setting forth the legal bases for the redactions.

The GRC subsequently issued a decision and order, which were distributed on May 27, 2010. The GRC disapproved three of the seventy-one redactions and ordered the Township to disclose the redacted statements.

The GRC issued another decision and order, which were distributed on June 1, 2010. The GRC concluded that the Township had complied with its May 27, 2010 order. The GRC found that the Custodians who had handled the document requests did not intentionally or deliberately deny Wolosky access to the requested documents. The GRC further found that the Custodians did not knowingly or willfully violate OPRA.

On August 24, 2010, the GRC determined that Wolosky was the prevailing party and he was entitled to a reasonable attorney's fee pursuant to N.J.S.A. 47:1A-7(f). The GRC referred the matter to the Office of Administrative Law (OAL) for a decision on the amount of the fee to be awarded.

The ALJ issued an initial decision dated September 9, 2011, in which she concluded that Wolosky was entitled to attorney's fees in the lodestar amount of $5085.00, which represented 22.6 hours of work at an hourly rate of $225. The ALJ also found that Wolosky was entitled to a 25 percent fee enhancement, totaling $778.50.

In addressing the question of whether Wolosky was a prevailing party, the ALJ stated that Wolosky's success on his complaint was "proportionally low." The ALJ noted that Wolosky had succeeded on only three of his seventy-one challenged redactions. The ALJ added, however, that in cases where a prevailing party only obtained limited relief in comparison to all the relief sought, the court must determine whether the expenditure of counsel's time on the entire litigation was reasonable in relation to the relief obtained and whether the purpose of OPRA has been vindicated.

The GRC issued its final decision in the case, which was distributed on December 1, 2011. The GRC decided that Wolosky was the prevailing party and awarded him attorney's fees in the amount of $5085, based on the lodestar. The GRC concluded, however, that Wolosky was not entitled to a fee enhancement. This appeal followed.

The Township argues that Wolosky was not a prevailing party entitled to attorney's fees under the OPRA. N.J.S.A. 47:1A-7(f) provides in pertinent part that "a requestor who prevails in any proceeding [brought under the OPRA] shall be entitled to a reasonable attorney's fee." A requestor is entitled to attorney's fees if the requestor obtains a judgment or enforceable consent decree in an OPRA proceeding, or if the litigation is the catalyst for the relief ultimately achieved. Mason v. City of Hoboken, 196 N.J. 51, 76 (2008) (citing Singer v. State, 95 N.J. 487, 494 (1984)). Here, Wolosky secured some of the relief he sought in his denial-of-access complaint. Therefore, he is a prevailing party entitled to "a reasonable attorney's fee" pursuant to N.J.S.A. 47:1A-7(f).

Next, the Township argues that the GRC erred by awarding Wolosky a full lodestar fee in light of the minimal success he achieved in the litigation.

The starting point for determining the amount of a reasonable fee is the lodestar. New Jerseyans for a Death Penalty Moratorium v. N.J. Dept. of Corrections, 185 N.J. 137, 153 (2005) (citing Rendine v. Pantzer, 141 N.J. 292, 324 (1995)). When a party only achieves limited success in a lawsuit, the award of an attorney's fee based on the lodestar may not be reasonable. Ibid. (citing Szczepanski v. Newcomb Med. Ctr., 141 N.J. 346, 355 (1995)).

Consequently, the court or agency awarding an attorney's fee in an OPRA proceeding must determine whether the time counsel devoted to the matter was "reasonable in relation to the actual relief obtained." Id. at 154 (citing N. Bergen Rex Transp., Inc. v. Trailer Leasing Co., 158 N.J. 561, 572 (1999)). If it is not, the court or agency should "reduce the award proportionally." Ibid. (citing N. Bergen Rex, supra, 158 N.J. at 572).

A close relationship between the recovery and fees awarded is not required. Ibid. (citing Bergen Rex, supra, 158 N.J. at 574). Moreover, a fee award need not be reduced merely because a requestor failed to prevail on every claim raised in the proceeding. Ibid. (citing Silva v. Autos of Amboy, Inc., 267 N.J. Super. 546, 555-56 (App. Div. 1993)). "'[T]he critical factor is the degree of success obtained.'" Ibid. (quoting Silva, supra, 267 N.J. Super. at 556).

Furthermore, the fee should be determined on a qualitative rather than quantitative analysis. Id. at 155. In an OPRA proceeding, a number of factors to be considered include the "number of documents received versus the number of documents requested, and whether the purpose of OPRA was vindicated by the litigation." Ibid.

In addition, the court or agency awarding the attorney's fees should consider the factors enumerated in RPC 1.5(a), such as the novelty of the issues involved, the time and labor required, and whether the attorney was precluded from handling other matters due to his or her involvement in the case. Ibid. "If, after consideration of all the relevant factors, the requester has obtained a high degree of success, the requester should recover the full lodestar amount." Ibid.

Applying these principles, we conclude that the GRC erred by awarding Wolosky an attorney's fee based on the full lodestar amount. In our view, the GRC failed to reduce the lodestar to substantially reflect the limited success that Wolosky achieved on his complaint. We recognize that the GRC ordered the Township to submit the redacted documents for its in camera review, along with a statement of the bases for each redaction. Even so, the overriding goal of this litigation was production of unredacted copies of all of the requested documents.

As we have explained, the GRC determined that sixty-eight of the Township's seventy-one redactions were valid. Thus, Wolosky obtained very limited success in this action. Furthermore, the issues raised were not novel, the time that counsel devoted to the litigation was minimal, and counsel's involvement in this proceeding would not have precluded him from taking on other work.

While we could remand the matter to the GRC to reconsider the fee award, we have determined to exercise our original jurisdiction in order to avoid further litigation concerning the fee. R. 2:10-5; Vas v. Roberts, 418 N.J. Super. 509, 523 (App. Div. 2011). The record is sufficient to determine the amount of the fee and agency fact-finding or expertise is not required for this decision. Ibid. (citing In re City of Plainfield's Park-Madison Site, 372 N.J. Super. 544, 552 (App. Div. 2004) certif. denied, 182 N.J. 630 (2005).

We conclude that upon consideration of all the relevant factors, a reasonable attorney's fee is $500. We note that Wolosky has not challenged the GRC's decision finding that a fee enhancement is not warranted in this case.

Accordingly, the final decision of the GRC is affirmed in part and reversed in part. Wolosky is awarded a reasonable attorney's fee of $500.