Update: The holding in the following case has been reversed.  Click here for more information.

On November 10, 2010, in what appears to be the first case of its kind, Union County Superior Court Judge Kathryn A. Brock ruled that a record requestor who obtained records under the common law right of access, but not under the Open Public Records Act (OPRA), is entitled to his or her attorney fees.

The case is John Paff v. Borough of Garwood, Docket No. UNN-L-1089-10. At issue was a request for a police surveillance video that depicted Garwood Police Officer Gennaro Mirabella, while in uniform, trespassing in the Garwood Borough offices. In a July 13, 2010 opinion, Judge Brock found that Paff was not entitled to the video under OPRA but was entitled to it under the common law right of access. For background and case documents, click here.

After entry of the July 13, 2010 order, Paff’s attorney, Richard M. Gutman of Montclair, filed an application for costs and attorney fees. He asserted that the New Jersey Supreme Court, in Mason v. Hoboken, 196 N.J. 51 (2008), created a new right to attorney fees in common law access cases. Brock agreed and awarded Gutman $40,288.50 in attorney fees and a “fee enhancement” of $14,100.98. She also awarded the cost of a $1,381.40 transcript and $260 in court filing fees for a total of $56,030.88. Garwood was represented in the case by Robert F. Renaud of Cranford.

Brock found that although “there simply have not been any published decisions since the Court’s decision in [Mason v. Hoboken] where the plaintiff filed claims for access under OPRA and the common law, but only prevailed on the common law claim . . . the authority to make the award is clear under [Mason] and under the catalyst theory this plaintiff is entitled to a reasonable counsel fee as the prevailing party on his common law claim under the facts of this case.”

Judge Brock found that $350 per hour was a reasonable fee for Mr. Gutman’s services but reduced Gutman’s request to be paid for 141.88 hours to 115.11 hours.

Judge Brock also ruled that Gutman was entitled to an extra 35% because of the risk he took in not getting paid at all if the suit was unsuccessful. Brock agreed with Gutman that his chance of losing the suit was high, given that Garwood refused to provide him and Paff with “more specific information about the basis for the OPRA exemptions being relied upon” and because Garwood had raised a security concern by falsely claiming that the Borough’s safe was shown on the video. On the latter point, she found that “if the court had not viewed the DVD and concluded that [Garwood’s claimed] security exemption did not apply . . . the plaintiff’s claim under the common law right of access might well have been lost . . .”

Gutman’s fee application and the Borough’s opposition are on-line here. Judge Brock’s order and thirty-seven page decision is on-line here.

Chairman of the New Jersey Libertarian Party's Open Government Advocacy Project. Please send all comments to [email protected]