LIBERTARIANS FOR TRANSPARENT GOVERNMENT v. WILLIAM PATERSON UNIVERSITY

NOT FOR PUBLICATION WITHOUT THE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-2570-16T4


LIBERTARIANS FOR TRANSPARENT
GOVERNMENT,

        Plaintiff-Respondent,

v.

WILLIAM PATERSON UNIVERSITY,

     Defendant-Appellant.
_________________________________

              Argued March 20, 2018 - Decided April 12, 2018

              Before Judges Hoffman and Mayer.

              On appeal from Superior Court of New Jersey,
              Law Division, Passaic County, Docket No.
              L-1541-16.

              Lauren A. Jensen, Deputy Attorney General,
              argued the cause for appellant (Gurbir S.
              Grewal, Attorney General, attorney; Raymond R.
              Chance, III, Assistant Attorney General, of
              counsel; Lauren A. Jensen and Jennifer
              McGruther, Deputy Attorney General, on the
              briefs).

              Richard M. Gutman argued the cause for
              respondent (Richard Gutman, PC, attorneys;
              Richard M. Gutman, on the brief).
PER CURIAM

     Defendant William Paterson University (WPU) appeals from a

January 10, 2017 order awarding attorney's fees and costs to

plaintiff Libertarians for Transparent Government (LFTG), and a

February 22, 2017 order determining that WPU violated the Open

Public Records Act (OPRA), 
N.J.S.A. 47:1A-1 to -13.           The judge

concluded that an unfiled, unexecuted, draft settlement agreement

was a public record subject to disclosure under OPRA.        We disagree

and reverse.

     The facts are undisputed.       On March 31, 2016, LFTG sent an

OPRA request to WPU seeking a copy of a settlement agreement

resolving    litigation   filed   against   WPU.    Alternatively,   LFTG

requested      any   "informal      agreements,     draft    agreements,

correspondence, e-mails, etc. . . . that disclose the settlement

award and/or any other settlement terms."          WPU denied the record

request as no final agreement existed when LFTG made its OPRA

demand.     In addition, WPU claimed the draft agreement was exempt

from disclosure pursuant to 
N.J.S.A. 47:1A-9(b).

     LFTG pursued its request for the disclosure of the settlement

agreement and related communications.         WPU agreed to provide a

copy of the agreement when it was executed by all parties.        On May

11, 2016, WPU gave LFTG a copy of the fully executed agreement.



                                    2                            A-2570-16T4
      Unbeknownst to WPU, two weeks earlier, LFTG filed an order

to show cause (OTSC) and complaint alleging WPU violated OPRA by

failing to provide communications disclosing the settlement terms.

The OTSC and complaint were served on WPU the day after WPU sent

the fully executed agreement to LFTG.

      In addition to filing opposition to the OTSC, WPU filed a

motion to dismiss LFTG's complaint.         WPU argued the matter was

moot because LFTG had a copy of the fully executed agreement.          WPU

also argued LFTG was not entitled to draft agreements because the

documents    related   to    settlement      negotiations   and       were

confidential.

      When the judge heard oral argument on the applications, he

asked WPU to provide copies of the withheld documents for his

review in camera.   On September 1, 2016, after the judge reviewed

the   withheld   documents   and    heard   additional   argument,       he

determined the draft settlement agreement documents were exempt

from disclosure under OPRA.        However, the judge found that an

unexecuted version of the agreement in an e-mail dated March 30,

2016, was final and should have been produced in response to LFTG's

OPRA request.    The judge memorialized his decision in an order

dated February 22, 2017.

      Because the judge determined WPU violated OPRA, LFTG filed a

motion for attorney's fees and costs.         WPU opposed the motion,

                                   3                              A-2570-16T4
arguing that LFTG was not a prevailing party under OPRA.                         In the

alternative,       WPU        argued    that      the       amount      sought       was

disproportionate     to       LFTG's    success      in     obtaining    the     relief

requested.     By order dated January 10, 2017, the judge awarded

LFTG attorney's fees in the amount of $30,000 and $350 in costs.

     On appeal, WPU argues the judge mistakenly determined it

violated OPRA by failing to disclose an unexecuted, proposed

settlement agreement received the day before the OPRA request.

WPU further contends the judge abused his discretion in awarding

counsel fees and costs to LFTG.

     We   exercise       de     novo   review of        a   trial    court's      legal

conclusions    concerning        access    to   public       records    under     OPRA.

Drinker Biddle & Reath, LLP v. N.J. Dep't of Law and Pub. Safety,


421 N.J. Super. 489, 497 (App. Div. 2011).                      "[D]eterminations

about the applicability of OPRA and its exemptions are legal

conclusions" reviewable de novo.                  Carter v. Doe (In re N.J.

Firemen's Ass'n Obligation), 
230 N.J. 258, 273-74 (2017) (citing

O'Shea v. Twp. of W. Milford, 
410 N.J. Super. 371, 379 (App. Div.

2009)).      Our   standard      of    review   is   plenary     with    respect       to

interpretation of OPRA and its exclusions.                   Asbury Park Press v.

Cty. of Monmouth, 
406 N.J. Super. 1, 6 (App. Div. 2009), aff'd,


201 N.J. 5 (2010).



                                          4                                     A-2570-16T4
     We review fee determinations for an abuse of discretion.

Rendine   v.    Pantzer,     
141 N.J.       292,   317       (1995).       "[F]ee

determinations by trial courts will be disturbed only on the rarest

of   occasions,    and   then      only       because of     a    clear    abuse     of

discretion."     Ibid.

     Settlement of legal disputes is encouraged by our courts, and

confidentiality is fundamental to the settlement process.                          See

State v. Williams, 
184 N.J. 432, 446 (2005).                       OPRA does "not

abrogate or erode any . . . grant of confidentiality . . .

established or recognized by . . . judicial case law, which . . .

grant of confidentiality may duly be claimed to restrict public

access to a public record or government record."                   
N.J.S.A. 47:1A-

9(b).

     In this matter, the judge found that documents exchanged in

the course of settlement negotiations were exempt from disclosure

under OPRA.       However, the judge mistakenly concluded that the

unexecuted     version      of     the    agreement        in      the     March     30

e-mail was a final document and no longer subject to settlement

negotiations.     The March 30 e-mail contained two versions of the

settlement     agreement:    a   red-lined       version     of    the     settlement

agreement and a clean copy of the settlement agreement.

     As of the date of LFTG's OPRA request, no settlement had been

reached and no agreement had been signed.              LFTG acknowledged that

                                          5                                   A-2570-16T4
as of the date of its OPRA request, the matter was "not fully

settled" because the parties "hadn't agreed on the language of the

red-line material."

     Until a settlement agreement is signed, it remains a draft

document subject to continued revision and negotiation. See Ciesla

v. N.J. Dep't of Health & Senior Servs., 
429 N.J. Super. 127, 140

(App. Div. 2012).       Because the agreement was not fully executed

until April 29, 2016, there was no final agreement as of the date

of LFTG's OPRA request.          Any documents prior to that date were

draft documents, subject the settlement negotiation process, and

exempt from disclosure under 
N.J.S.A. 47:1A-9(b).

     Having determined that the judge mistakenly concluded WPU

violated OPRA, LFTG was not a prevailing party.                     See 
N.J.S.A.

47:1A-6.        Therefore,   LTFG   was     not   entitled    to    an    award    of

attorney's fees and costs.

     For the sake of completeness, even if LFTG was a prevailing

party,    the   judge   failed    to   state      his   findings    of    fact    and

conclusions of law in awarding attorney's fees and costs.                        Rule

1:7-4    requires   a   trial    court,     "by   an    opinion    or    memorandum

decision, either written or oral, find the facts and state its

conclusions of law thereon . . . on every motion decided by a

written order that is appealable as of right."                The failure of a

trial court to meet the requirements of the Rule "constitutes a

                                        6                                   A-2570-16T4
disservice to the litigants, the attorneys and the appellate

court."   Curtis v. Finneran, 
83 N.J. 563, 569-70 (1980) (quoting

Kenwood Assocs. v. Bd. of Adjustment of Engelwood, 
141 N.J. Super.
 1, 4 (App. Div. 1976)).

     Reversed.




                                7                          A-2570-16T4