In a new ruling, the New Jersey Supreme Court refused to allow fee-shifting in public records disputes under New Jersey's common law right of access. (Photo by New Jersey Monitor)
People who sue for public records under New Jersey’s common law right of access have to pay for their own attorneys, win or lose, the state Supreme Court ruled Tuesday.
The decision was a disappointment for public-interest and transparency advocates, who had argued that losers of such lawsuits should foot the costs of litigation, as now happens under the state’s Open Public Records Act.
The disappointment was especially acute at a time when several state lawmakers have bills now in the Statehouse pipeline that would tweak OPRA to shrink public access, including adding new fees and restrictions on frequent requestors and limiting further what records are public.
Attorney CJ Griffin, who argued the case on behalf of five social justice groups, including the American Civil Liberties Union of New Jersey, called the decision disappointing.
“Without access to attorney’s fees, most members of the public will not be able to enforce their rights to obtain police internal affairs reports, dash camera videos, and so many other records that we have access to pursuant to the Supreme Court’s landmark decisions expanding the common law right to these documents,” Griffin said.
The decision proves the need for the Legislature to expand access to public records under OPRA and pass a stalled bill that would make police misconduct records public, Griffin added. Griffin has represented the New Jersey Monitor in public records cases and other legal matters.
But Justice Anne Patterson, writing for a unanimous court, said common law right of access claims to public records impose significant burdens on municipal clerks and other records custodians.
“They require a careful balancing of competing interests and the application of an array of factors that can challenge even a seasoned judge,” Patterson wrote. “If a custodian were to release information not properly subject to disclosure in order to avoid the risk of an award of attorneys’ fees, individuals’ privacy and safety and the public entity’s interests could be compromised.”
The two laws and the records request
People seeking public records can do so in New Jersey under two laws — the Open Public Records Act and the common law right of access.
OPRA largely spells out a list of records state lawmakers have exempted from disclosure, and that includes police disciplinary records.
But under the common law right of access, the public can get such exempted records if they successfully argue that disclosure is in the public’s best interest. In March 2022, the Supreme Court decreed that police disciplinary records are subject to disclosure under the common law right of access.
Tuesday’s ruling stems from a records dispute dating to 2017, when the Asbury Park Press sought the disciplinary records for former Neptune police Sgt. Philip Seidle, who’s now serving a 30-year prison sentence for aggravated manslaughter.
Seidle used his service revolver to gun down his ex-wife, Tamara, in June 2015 near a busy area of Asbury Park in the presence of their 7-year-old daughter. In 2017, the Monmouth County Prosecutor’s Office issued a public report, partly based on Seidle’s disciplinary records, showing that he remained on the force, with access to his service weapon, despite a long history of domestic violence reports.
The prosecutor’s office found that in Seidle’s 22 years on the Neptune police force, the department had received reports of seven domestic violence incidents between 1994 and 2015 involving the Seidles; seven calls about the couple’s child custody issues; and another seven calls from the couple about issues unrelated to their relationship. An eighth domestic violence incident involving the couple had been reported to Tinton Falls police in 2012, the prosecutor’s office reported.
The prosecutor’s office said its investigation “disclosed a critical flaw in the domestic violence policies and procedures that currently exist statewide.” Domestic violence incidents that don’t result in criminal charges or a temporary restraining order “call into question the fitness-for-duty of a police officer,” and an officer with numerous disciplinary complaints “raises a red flag” that should prompt supervisors to evaluate their ability to do their job, the report added.
As a result of their investigation, the office implemented an “early warning system” for law enforcement agencies countywide.
After the report came out, the Asbury Park Press asked for Seidle’s disciplinary records. Neptune Township officials rejected the request, supplying only a list of withheld documents relating to 28 separate incidents involving the Seidles.
Gannett, the newspaper’s parent company, sued for access, saying the denial violated both OPRA and the common law.
A trial judge sided with Gannett, denying the records under OPRA but granting access under the common law right of access, saying most of the disputed records already had been revealed anyway by the prosecutor’s office and the Asbury Park Press’ own reporting.
That judge partially granted Gannett’s bid to have Neptune cover its attorneys’ fees, awarding the media company just over $85,000. The township appealed, and an appellate court upheld the trial judge’s decision that the records were public under the common law — but reversed the award of attorney fees.
The Supreme Court agreed to hear the case on the narrow issue of attorneys’ fees.
In her ruling, Patterson wrote that the state follows the American rule on legal fees. That’s the default legal rule in the U.S. under which each party pays its own legal fees in civil litigation, regardless of who wins. The goal is to ensure unrestricted access to the courts for all, so that a fear of costs doesn’t dissuade someone from taking a case to court.
There are exceptions in New Jersey, like OPRA, that allow for fee-shifting, Patterson noted. But the common law right of access is not — and shouldn’t be — an exception, she wrote.
She made two recommendations to help records requestors and custodians avoid court battles, and hence, attorneys’ fees:
- Municipal clerks and other records custodians for public agencies should receive comprehensive training on common law right of access claims — and seek legal advice as necessary.
- People requesting records under the common law right of access should explain in detail why they want the records to avoid “an unnecessary dispute, thus wasting the resources of both parties.”
Attorney Jonathan Cohen, who represented Neptune, applauded the ruling, saying municipal clerks are not judges nor lawyers and so might struggle with the complex legal considerations the common law right of access requires of “close-call” records requests.
“Municipal clerks are going to do their job professionally, under any circumstance, even under the threat of counsel fees,” Cohen said. “However, it does put undue pressure on municipal clerks to know that their decision could cost their municipality tens, if not hundreds, of thousands of dollars in legal fees. The effect would have been to put municipal clerks in an unfair position.”
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