Opinion
DOCKET NO. A-5833-13T4
08-11-2016
NORTH JERSEY MEDIA GROUP INC., Plaintiff-Respondent/Cross-Appellant, v. STATE OF NEW JERSEY DEPARTMENT OF LAW AND PUBLIC SAFETY, DIVISION OF LAW, and ELISE GOLDBLAT, in her capacity as OPRA custodian for the Division of Law, Defendants-Appellants/Cross-Respondents.
Jeffrey S. Jacobson, Assistant Attorney General, argued the cause for appellants/cross-respondents (John J. Hoffman, Acting Attorney General, attorney; Mr. Jacobson, of counsel and on the briefs; Matthew T. Kelly, Deputy Attorney General, on the briefs). Samuel J. Samaro and Jennifer A. Borg argued the cause for respondent/cross-appellant (Pashman Stein, attorneys; Mr. Samaro and Ms. Borg, of counsel and on the briefs; CJ Griffin, on the briefs).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Nugent and Higbee. On appeal from Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-778-14. Jeffrey S. Jacobson, Assistant Attorney General, argued the cause for appellants/cross-respondents (John J. Hoffman, Acting Attorney General, attorney; Mr. Jacobson, of counsel and on the briefs; Matthew T. Kelly, Deputy Attorney General, on the briefs). Samuel J. Samaro and Jennifer A. Borg argued the cause for respondent/cross-appellant (Pashman Stein, attorneys; Mr. Samaro and Ms. Borg, of counsel and on the briefs; CJ Griffin, on the briefs). PER CURIAM
This appeal involves government record requests made after authorities began to investigate both the September 2013 George Washington Bridge (the Bridge) lane closings and allegations of wrongdoing made by Hoboken Mayor Dawn Zimmer. Defendant New Jersey Department of Law & Public Safety, Division of Law (the Division), appeals from the provisions of an August 8, 2014 order awarding counsel fees and costs to plaintiff North Jersey Media Group, Inc. (NJMG) as a prevailing party under the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13. NJMG cross-appeals from the provisions of the same order upholding the Division's refusal to grant NJMG OPRA and common law access to records, which contained, among other things, the names of current and former State employees who had sought representation or indemnification in connection with the investigations. Having considered the important competing interests at issue in light of the appellate record and controlling legal principles, we conclude the records the Division declined to provide NJMG are shielded from disclosure by the attorney-client privilege and Rules of Professional Conduct (RPCs). We further conclude the trial court's award of counsel fees has no factual support in the record. Accordingly, we affirm the provisions of the order denying access to certain records and vacate the provisions in the order awarding counsel fees.
Another provision of the order required the Division to "grant access to communications to current or former employees — with identifying information redacted — denying requests for representation or indemnification or certify that no such documents exist." This provision is not at issue on this appeal.
I.
The record on appeal contains the following facts. NJMG publishes two daily newspapers, including The Record; two websites; and more than forty community weekly newspapers. Its primary business is gathering, editing, and reporting information for the publication of news stories. According to its complaint, "[a]s the daily newspaper circulating within North Jersey, The Record devotes significant time and resources covering the State of New Jersey and the conduct of its public officials and employees."
The complaint asserts, "[a]s first reported in The Record, a cache of emails and text messages were released to the media on January 8, 2014 linking Governor Chris Christie's administration to lane closures at the [Bridge] in September 2013." The complaint further asserts, "[d]ays after the allegations relating to the lane closures surfaced, Hoboken Mayor Dawn Zimmer accused the Christie Administration of threatening to withhold Superstorm Sandy rebuilding money unless she approved a private real estate project tied to a close Christie advisor." Thereafter, federal and state authorities, including the United States Attorney's Office and the New Jersey Legislature, as well as a law firm retained to conduct an internal investigation, began investigating the lane closures.
On February 10, 2014, a reporter for The Record made a written OPRA and common law right to access request of the Division, seeking:
copies of any requests made by current or former state employees or their legal counsel to have the Attorney General's office or any other state agency pay for all or part of their legal fees in connection with the ongoing [i]nvestigation into the lane closures at the entrance to the [Bridge] in September. This request is seeking documents where individuals inquire about both past and/or future legal expenses. I am also requesting copies of any response by the Attorney General's office or other state agency to these requests. If any part of these files should be refused or redacted please provide the reasoning and cite the statute that allows for information to be withheld.
The next day, another reporter for The Record made a second request seeking: "any and all requests for indemnification or legal representation, by current or former state employees, related to inquiries into the . . . Bridge lane closures or the allegations of Hoboken Mayor Dawn Zimmer."
On February 21, 2014, defendant Elise Goldblat, the Division's OPRA custodian, responded to both requests, stating as to each:
Your OPRA Request . . . filed with the [Division] has been denied. The documents requested are exempt from disclosure as they constitute confidential documents and records subject to and protected by the attorney-client privilege. N.J.S.A. 47:1A-1.1. Consequently, the request is denied, and this matter is closed in its entirety effective today.
On March 13, 2014, the first reporter filed a third request, seeking:
1. Correspondence between the Attorney General's Office and Bridget Anne Kelly (or her attorney) dated since January 8, 2014 responding to Ms. Kelly's request for defense and/or indemnification relating to any investigations and/or litigation arising out of the lane closures of the [Bridge] in September 2013; 2. Correspondence between the Attorney General's Office and Bill Stepien (or his attorney) dated since January 8, 2014 responding to his request for defense and/or indemnification relating to any investigations and/or litigation arising out of the lane closures of the [Bridge] in September 2013. Please . . . provide a detailed reason for any redaction or full or in part denials citing specific laws as to why the information was not provided.On March 24, 2014, Goldblat responded:
Your OPRA request . . . has been denied. The [Division] cannot confirm or deny that we have received a request by either or both of the named individuals for defense and/or indemnification as to do so would break the attorney-client privilege. N.J.S.A. 47:1A-
1.1. Furthermore, without confirming and/or denying that we have received such request(s), any responsive documents would be exempt from disclosure as they constitute confidential documents and records subject to and protected by the attorney-client privilege. Consequently, your OPRA request . . . is denied and this matter closed in its entirety effective today.
The reporter filed a fourth request on March 13, 2014, seeking:
correspondence between the Attorney General's office and [individuals] who have requested defense and/or indemnification relating to any investigations and/or litigation arising out of the lane closures of the [Bridge] in September 2013.Goldblat responded on March 24, 2014, denying the request based on the attorney-client privilege.
Two weeks later, on April 7, 2014, NJMG filed but did not immediately serve a verified complaint and order to show cause. A judge signed the order to show cause on April 11, 2014, and directed NJMG to serve copies of the order to show cause, verified complaint, and all supporting affidavits or certifications within ten days. According to the Division, NJMG served the Division with the order to show cause and verified complaint on April 21, 2014. A week earlier, on April 14, 2014, the Division had released to the media, including NJMG, redacted documents concerning retention of certain law firms on behalf of current or former State employees.
In its brief, NJMG states it served the Division with the pleadings on April 22, 2014. The one-day discrepancy between the Division's and NJMG's statements as to when NJMG served the pleadings is not a material discrepancy.
The April 14 disclosures included the Division's retention letters to the law firms, correspondence from the Division to the firms, and financial disclosure information, if required, by the firms. The released documents disclosed the firms had contacted the Division in late January and early February 2014 concerning indemnification for representing their clients, who were State employees. The formal retention agreements were finalized on or after April 8, 2014. The Division redacted the identity of the State employees.
One retention agreement was not released until after it was finalized in June 2014.
Following NJMG's service of the order to show cause and verified complaint on the Division on April 21, 2014, the parties briefed the issues raised in the complaint and argued these issues on June 11, 2014. The court thereafter issued a written decision.
The court framed the issue before it as "whether the clients' identities, their original requests for representation and/or indemnification, and any written denial of such a request are exempt from disclosure by operation of the attorney-client privilege." The court concluded, "any correspondence from a current or former State employees and the Attorney General requesting representation or indemnification is covered by the [attorney-client] privilege and, therefore, is exempt from disclosure under OPRA." The court then balanced the parties' competing interests and determined NJMG was not entitled to the documents under the common law, concluding "the strong need to protect the attorney-client communications of the former and current State employees greatly outweighs [NJMG's] interest in the unredacted 'public records.' [T]he redacted documents provide [NJMG] with sufficient information to serve its interest in the records." The court did not require the Division to provide an index or description of the documents it withheld from NJMG's access.
Conversely, the court determined "[t]he same cannot be said of the redacted documents which the [Division] provided to [NJMG] two weeks after [NJMG] filed its complaint." The court concluded that by releasing these documents, the Division had "conceded that those documents were accessible under OPRA." The court determined "the documents should have been delivered to [NJMG] with redactions without the need to initiate this action." Having concluded in part the Division improperly denied NJMG access to certain documents "until after the initiation of the complaint," the court concluded NJMG had prevailed in the action and was entitled to attorney's fees. Thereafter, the court heard argument on NJMG's fee application and awarded $57,007.41 in fees and $1400 in expenses. The appeal and cross-appeal followed.
The court also noted the Division had not released any document denying an employee's request for representation. The court ordered the Division either to provide such documents with necessary redactions or certify that no such documents existed.
II.
We first address NJMG's cross-appeal. The central issue the parties dispute is whether the identities of State employees who requested representation or indemnification are exempted from OPRA access by the attorney-client privilege or RPCs. NJMG contends a client's identity is not protected from disclosure; rather, "a client's identity [is] deemed confidential only to the extent that the identity directly reveal[s] other sensitive information about the client." NJMG argues, alternatively, "to the extent State employees have a legitimate interest in not being publicly identified as having sought legal advice, that interest is outweighed by the public's right to transparency in government." Lastly, NJMG argues the trial court should not have rendered its decision without either conducting an in camera review of the documents sought by NJMG or requiring the Division to produce a Vaughn index.
Vaughn v. Rosen, 484 F.2d 820, 826-28, (D.C. Cir. 1973), cert. denied, 415 U.S. 977, 94 S. Ct. 1564, 39 L. Ed. 2d 873 (1974).
A Vaughn index is comprised of affidavits containing a "relatively detailed" justification for the claim of privilege being asserted for each document. The judge analyzes the index to determine, on a document-by-document basis, whether each such claim of privilege should be accepted or rejected. Vaughn, supra, 484 F.2d at 826-27. The affidavit is "ordinarily . . . composed without excessive reference to the actual language of the document." Ibid.
[Paff v. Div. of Law, 412 N.J. Super. 140, 161 n.9 (App. Div.), certif. denied, 202 N.J. 45 (2010).]
Our review of a trial court's interpretation of OPRA is de novo. See O'Boyle v. Borough of Longport, 426 N.J. Super. 1, 8 (App. Div. 2012), aff'd, 218 N.J. 168 (2014). "Findings of fact, however, are reviewed deferentially." Ibid.
OPRA declares it "the public policy of this State that . . . government records shall be readily accessible for inspection, . . . by the citizens of this State, with certain exceptions, for the protection of the public interest." N.J.S.A. 47:1A-1. One exception is the attorney-client privilege:
A government record shall not include the following information which is deemed to be confidential for the purposes of P.L.1963, c.73 (C.47:1A-1 et seq.) as amended and supplemented: . . . any record within the attorney-client privilege. This paragraph shall not be construed as exempting from access attorney or consultant bills or invoices except that such bills or invoices may be redacted to remove any information protected by the attorney-client privilege.
[N.J.S.A. 47:1A-1.1.]
The attorney-client privilege, codified in N.J.S.A. 2A:84A-20 and N.J.R.E. 504, and subject to exceptions not asserted by the parties here, states in pertinent part: "communications between a lawyer and his client in the course of that relationship and in professional confidence, are privileged." N.J.S.A. 2A:84A-20(1); N.J.R.E. 504(1). The term "client" is defined in relevant part as "a person or corporation or other association that, directly or through an authorized representative, consults a lawyer or the lawyer's representative for the purpose of retaining the lawyer or securing legal service or advice from him in his professional capacity." N.J.S.A. 2A:84A-20(3); N.J.R.E. 504(3).
Additionally, "OPRA exempts numerous categories of documents and information from disclosure." Kovalcik v. Somerset Cty. Prosecutor's Office, 206 N.J. 581, 588 (2011).
Taken together, OPRA's provisions strike "a balance . . . between the competing
interests of privacy and open government." Asbury Park Press v. [Cty.] of Monmouth, 406 N.J. Super. 1, 11 (App. Div. 2009), aff'd 201 N.J. 5 (2010). Accordingly, under OPRA, "all government records [shall] be disclosed upon request except those exempted by statute, legislative resolution, administrative regulation, executive order, rules of court, judicial decisions, or federal law." Id. at 6 (citing N.J.S.A. 47:1A-1, -9).
[Newark Morning Ledger Co. v. New Jersey Sports & Exposition Auth., 423 N.J. Super. 140, 161-62 (App. Div. 2011 (alterations in original)).]
The RPCs impose upon a lawyer the duty to maintain the confidentiality of information concerning clients. RPC 1.6(a) states: "A lawyer shall not reveal information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation." "It is safe to say that generally, almost without exception, no branch of government has the power to authorize, either explicitly or implicitly, conduct by attorneys that violates the ethical standards imposed by the judiciary." In re Advisory Comm. on Prof'l Ethics, 162 N.J. 497, 502 (2000) (quoting In re Op. No. 621, 128 N.J. 577, 590 (1992)).
Applying these principles to the facts of this case, we conclude the identity of the State employees who sought representation or indemnification fell within the attorney- client privilege and RPC 1.6(a), exemptions to OPRA's access requirements.
We previously noted that the attorney-client privilege's definition of "client" includes a person who "directly or through an authorized representative, consults a lawyer or the lawyer's representative for the purpose of . . . securing legal service." N.J.S.A. 2A:84A-20(3); N.J.R.E. 504(3). See also RPC 1.18(a) ("A lawyer who has had discussions in consultation with a prospective client shall not use or reveal information acquired in the consultation, even when no client-lawyer relationship ensues, except as RPC 1.9 would permit in respect of information of a former client.").
It is now beyond dispute "that there exists an attorney-client relationship between the Division and the [S]tate agencies to which it provides legal advice." Paff, supra, 412 N.J. Super. at 151. The Division is charged with the statutory duty to:
Act as the sole legal advisor, attorney or counsel, notwithstanding the provisions of any other law, for all officers, departments, boards, bodies, commissions and instrumentalities of the State Government in all matters other than those requiring the performance of administrative functions entailing the enforcement, prosecution and hearing of issues imposed by law upon them; and represent them in all proceedings or actions of any kind which may be brought for or against them in any court of this State;
and shall likewise interpret all statutes and legal documents, inspect and approve contracts and titles and otherwise control their legal activities.Thus, when a State employee consults the Division for the purpose of securing legal service, the communications comprising the "consult" would generally fall within the attorney-client privilege.
[N.J.S.A. 52:17A-4(e).]
That said, the attorney-client privilege protects communications between a lawyer and a client. The identity of a client is generally not deemed to be a privileged communication. State v. Toscano, 13 N.J. 418, 424-25 (1953). Nonetheless, our Supreme Court has noted "[t]he scope of the attorney-client privilege or protections is also subject to ethics rules governing attorney conduct." In re Advisory Op. No. 544, 103 N.J. 399, 406 (1986). RPC 1.6(a) prohibits a lawyer from revealing "information relating to representation of a client." The Supreme Court has stated "that client information that serves to identify the client would clearly be protected under . . . RPC 1.6. As noted, this rule accords confidentiality to any information relating to the representation of a client. Manifestly this would include a client's identity." In re Advisory Op. No. 544, supra, 103 N.J. at 409.
The issue before the Court in In re Advisory Op. No. 544 was "whether certain information relating to the clients of a legal services organization, which provides legal assistance to mentally impaired or disabled and indigent persons, may be disclosed to the private and governmental entities that provide funds to the organization, without violating the protections of confidentiality accorded attorney-client communications and relationships." Id. at 401-02. In discussing this issue, the Court explained:
The appropriate analysis must . . . focus upon whether the revelation of client information to someone other than the lawyer amounts to the impermissible disclosure of a privileged communication or a secret or information relating to the relationship. That inquiry is here particularized in terms of whether certain information that identifies the disabled and indigent persons receiving legal services from a legal services project may be disclosed to funding sources without violating the attorney-client privilege as defined by both statute and the Court's ethics strictures governing professional conduct.
[Id. at 407.]
Relying on "then-applicable ethics standards, Disciplinary Rule 4-101(A), or Disciplinary Rule 4-101(C)(1)," the Advisory Committee on Professional Ethics had "ruled that the disclosure of the information requested by private and public funding entities does not violate the confidences of the Law Project's clients[.]" Id. at 403. The Supreme Court pointed out the Disciplinary Rules had been superseded by the RPCs. Id. at 406. Contrasting the scope of the Disciplinary Rules and the RPCs, the Court explained:
information gained in the course of an attorney-client relationship, as provided under the former Disciplinary Rule 4-101(A), might not include information that consists of only the identity of the client . . . . While a client's identity per se might not be necessarily considered a privileged communication as such, . . . in some instances disclosure of identity may indirectly reveal other information about the client. Hence, depending upon the nature of such additional or collateral information that is revealed by the disclosure of the client's identity, the need for confidentiality could appropriately cloak even identity. In this case, for example, disclosure of the identity of clients of the Law Project would be tantamount to the revelation of the mental and financial status of individuals, as well as the fact that he or she has a legal problem that required the services of an attorney.
[Id. at 407-08.]
NJMG emphasizes this language in arguing a client's identity is not protected by either the attorney-client privilege or RPC 1.6. NJMG's argument overlooks the context of the Court's discussion, as well as the Court's express holding:
Accordingly, we hold that under current standards governing attorney conduct, client-identity may not be disclosed to any private or public funding agency in the
absence of appropriate consent or other legal justification. In so ruling, we determine that a client's identity constitutes information relating to the representation of a client under the current Rules of Professional Conduct and a secret entitled to non-disclosure, if not a protected confidential communication, under the attorney-client privilege and former Disciplinary Rule 4-101(A).For these reasons, we reject NJMG's arguments.
[Id. at 409.]
NJMG also asserts we held in Dry Branch Kaolin Co. v. Doe, 263 N.J. Super. 325, 331-32 (App. Div. 1993) that the identity of a client was not subject to the attorney-client privilege. Dry Branch involved a defamation action filed by a company's officers against an anonymous former employee. Id. at 326-27. The defamatory statements were contained in a letter from the anonymous employee's attorney. Id. at 327. In requiring disclosure of the anonymous employee's identity, we explained, "[t]he client here went beyond seeking legal advice from his or her attorney. After [the attorney] wrote to plaintiffs informing them of his client's concern of possible legal activities by plaintiffs, the client subsequently wrote the alleged defamatory letters." Id. at 331-32. We also explained that after the attorney-client relationship ended, "the client continued to write to [the] plaintiffs." It was in this context that we determined "the need to disclose the identity of the client outweighs any countervailing concerns." Ibid. Here, the attorney-client privilege is not being asserted for the purpose of avoiding tort liability or concealing post-representation conduct.
NJMG next contends the court erred by failing to either review the allegedly privileged documents in camera or require the Division to prepare a Vaughn index. Indisputably, "courts do possess the authority to direct a party who asserts the attorney-client privilege to prepare a Vaughn index." Paff, supra, 412 N.J. Super. at 161. Such an index, however, "is used in circumstances where it is evident that some of the documents may not in fact be privileged." Ibid. Here, the very nature of NJMG's OPRA requests implicated the attorney-client privilege.
NJMG also asserts its "fourth OPRA request . . . sought all '[c]orrespondence between the Attorney General's office and individuals who have requested defense and/or indemnification relating to any investigations and/or litigation arising out of the lane closures of the [bridge.]'" NJMG argues that, as such, its request "was not limited to the requests for defense themselves but included all correspondence between the requester and the Attorney General's office." We are unable to conclude from the OPRA requests themselves "it [was] evident that some of the documents may not in fact be privileged." Consequently, on this record, we find no basis to conclude the trial court abused its discretion by not either reviewing the documents in camera or exercising its authority to compel the Division to produce a Vaughn index.
We have considered NJMG's remaining arguments and found them to be without sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E).
III.
NJMG next argues it was entitled to the documents under the common law right of access to government records. OPRA does not limit the common law right of access. N.J.S.A. 47:1A-8. To obtain access to public records under the common law, however, "requestors must make a greater showing than required under OPRA." Wilson v. Brown, 404 N.J. Super. 557, 582 (App. Div.) (quoting Mason v. City of Hoboken, 196 N.J. 51, 67 (2008)), certif. denied, 198 N.J. 473 (2009). "'[T]he person seeking access must establish an interest in the subject matter of the material'; and . . . 'the citizen's right to access must be balanced against the State's interest in preventing disclosure.'" Mason, supra, 196 N.J. at 67-68 (quoting Keddie v. Rutgers, 148 N.J. 36, 49 (1997)).
Significantly, "[t]he common law right of access recognizes privileges, such as the attorney-client privilege, although the privilege may be overcome by a showing of particularized need." O'Boyle, supra, 218 N.J. at 168. In O'Boyle, the plaintiff articulated an interest in the public records at issue, "but failed to express a particularized need for the documents." Ibid. The Supreme Court held that the plaintiff's failure to demonstrate a particularized need for the privileged material constituted a failure "to satisfy the common law standard for access to those documents." Ibid.
The same reasoning applies here. NJMG asserted an interest in the records, which it unquestionably has as the publisher of multiple newspapers and news websites. But its substantial interest does not equate to a particularized need.
NJMG argues that "as the 'eyes and ears' of the public [it] has a very strong interest in publicizing news stories that would inform the public of how millions of dollars in public funds are spent." NJMG's argument appears to overlook both the Division's disclosure of the names and fee structures of the law firms retained to represent State employees and the Division's representation that it would continue to make such disclosures upon request if additional firms were retained. Further, OPRA does not exempt from disclosure "attorney or consultant bills or invoices." Consequently, common law right to access aside, NJMG can obtain access to the attorneys' bills through an OPRA request, and thereby inform the public about the amount of tax dollars spent as a result of the Bridge lane closings and other investigations.
In view of NJMG's access to attorney billing information under OPRA, NJMG can hardly demonstrate a particularized need under the common law right to access government records. See Wilson, supra, 404 N.J. Super. at 583 (explaining "the extent to which information may be available from other sources" is one prong of the test to "assess whether a party has articulated a sufficiently compelling particularized need").
NJMG also asserts "[t]he public has a right to know which current or former State employees are receiving taxpayer-funded representation." This conclusory assertion does not establish a particularized need sufficiently compelling to overcome the attorney-client privilege.
NJMG has demonstrated no particularized need to overcome the attorney-client privilege. Accordingly, we affirm the trial court's denial of the common law right to access request.
IV.
We turn to the Division's appeal. The Division argues the trial court should not have awarded NJMG fees and costs because NJMG was not a prevailing party. The Division also argues the fee award is excessive. We agree NJMG was not a prevailing party under OPRA.
OPRA provides that "[a] requestor who prevails in any proceeding shall be entitled to a reasonable attorney's fee." N.J.S.A. 47:1A-6. To determine whether a party has prevailed, New Jersey courts employ the catalyst theory. Mason, supra, 196 N.J. at 73. The catalyst theory requires the party to demonstrate: (1) a factual causal nexus between their litigation and the relief ultimately achieved; and (2) that the relief ultimately secured has a basis in law. Ibid. See also Singer v. State, 95 N.J. 487, 495, cert. denied, 469 U.S. 832, 105 S. Ct. 121, 83 L. Ed. 2d 64 (1984).
An OPRA requestor is not a prevailing party simply because the government entity produced documents after an OPRA lawsuit was filed. Rather, requestors are prevailing parties if they "achieve[d] the desired result because [their] complaint brought about change (voluntary or otherwise) in the custodian's conduct." Spectraserv, Inc. v. Middlesex Cty. Utilities Auth., 416 N.J. Super. 565, 583 (App. Div. 2010) (citing Teeters v. Div. of Youth & Family Servs., 387 N.J. Super. 423, 432 (App. Div. 2006), certif. denied, 189 N.J. 426 (2007)).
Here, the trial court apparently based its award of counsel fees on an erroneous fact and an erroneous assumption about the Division's position. First, the court noted the Division provided the redacted documents to NJMG "two weeks after [NJMG] filed its complaint." With one exception not mentioned by the trial court, the Division provided the documents one week after NJMG filed the complaint and one week before NJMG served the complaint on the Division. Second, the court concluded, "by releasing those documents defendants have conceded that those documents were accessible under OPRA." This is not so.
The court's factual error was not insignificant. It can hardly be said that NJMG achieved its desired result because its complaint brought about a change in the Division's conduct. Spectraserv, supra, 416 N.J. Super. at 583. The Division had not even been served with the complaint when it voluntarily released information not only to NJMG, but to other media entities as well. Moreover, the parties have cited no evidence in the record that the Division was aware the complaint had been filed when it released information about retention of certain law firms. The Division was not served with the complaint until one week after it initially released the retention agreements and related documents.
In one instance, the Division released retention information after being served with NJMG's complaint. The Division's release of this information was consistent with its previous position that once a formal retainer agreement was executed, certain information concerning retention would be released. In other words, the one instance of disclosures after service of the complaint was not the result of the complaint modifying the Division's conduct with respect to what information should be released and when it should be released. --------
Moreover, nothing in the record suggests the trial court's supposition about the Division's "concession" was accurate. To the contrary, the Division made no such concession. Rather, it explained that it released upon request — formal or informal — the retention and fee structure information once fee retainers had been formally executed.
For the foregoing reasons, we reverse the trial court's award of counsel fees. The court's conclusion that NJMG was a "prevailing" party has no factual support in the record.
Affirmed in part and reversed in part. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION