NJ court: High costs is denial of access; awards atty's fees

The appellate division of the Superior Court of New Jersey awarded attorney's fees to a records-access plaintiff Monday in Smith v. Hudson County Register even though he was able to access and copy the records he sought.

The court held that the cost of copying the records — 25 cents per page — was unrelated to the actual cost to the agency and, in certain circumstances, it could amount to a constructive barrier to access, enabling Smith to qualify under the Open Public Records Act requirements for awarding attorney fees.

Dean Smith, a private investigator, filed a class action lawsuit in 2007 under the Open Public Records Act on behalf of anyone who had filed a records request with Hudson County and paid the copying fee. Smith claimed the 25-cent fee per page for copying records was unrelated to the actual cost of producing the copies and, therefore, violated the records law, which allows agencies to charge only the actual cost of producing the records.

A trial court refused to certify the case and dismissed Smith's claim for lack of standing to sue, because he had "voluntarily" paid the fee.

On appeal in 2010, the appellate court overturned the trial court's findings, finding that voluntarily paying the fee does not prohibit a requester from making a claim. Such an outcome would serve as a "major impediment" to enforcing the Open Public Records Act if requesters had to refuse to pay an excessive fee and then await the outcome of litigation to receive the requested documents.

In addition, the court held that under the Open Public Records Act, fees must be based on the actual cost to the agency. However, it also held that the county did not have to estimate its costs for previous records requests and would only have to do so going forward. The court then remanded the case to the trial court to determine attorney's fees.

Attorney Sander Friedman, who represented Smith, said the remand was to determine "how much" not "if" fees should be awarded.

The defendants and the trial court disagreed, and the court dismissed the case.

The defendants, the Hudson County Register, who files and preserves documents on property in the county, and the county itself, argued that Smith was not a "prevailing party" under the statute and, therefore, not qualified to receive a fee award because he was never denied access to records. The Open Public Records Act states that if access was "improperly denied," then a prevailing party may receive attorney's fees. The trial court held that, while the per copy charge may have been improper, Smith was never actually denied access to the records.

Smith again appealed and the appellate court again overturned the trial court, finding Smith was a prevailing party under the statute, as his case was the "catalyst" to a policy change. The court followed a two-part test to determine if Smith was a "prevailing party."

First, the lawsuit must have been a "necessary and important factor in obtaining the relief," and second "the relief sought [must] have some basis in the law." Acting as a "catalyst" to induce the defendant to act in accordance with the law is a way to qualify as a prevailing party, the court held. To hold otherwise would be to allow a defendant to avoid paying attorney's fees by "chang[ing] its behavior at the eleventh hour," it said.

Smith was a prevailing party and, therefore, entitled to fees because Smith convinced the court to reject the use of the "'volunteer rule' as a procedural bar to his OPRA action" and he also successfully argued to the court that copying fees must be limited to actual costs, the court held. Smith was a catalyst for change, the court found.

The fact that Smith had access to the records, and could have viewed them without copying, does not preclude him from being a prevailing party, the court held. "The right of copying is no less important under OPRA than the right of inspection. Both rights are manifestly subsumed in what is termed 'access.'"

Friedman said it's a "shame" the county fought this case so long. "Overcharging is a barrier to access," he said and this is not the first court in New Jersey to find that high fees violate the Open Public Records Act. It should never have been a question that Smith should get awarded fees because the law is clear, Friedman said.

Since the appellate court's initial decision in 2010 requiring agencies to only charge the actual cost of copying records, the New Jersey legislature has amended the Open Public Records Act, effective November 2010, setting a fee of 5 cents per copy without requiring any evaluation of actual costs for government agencies.

Friedman said the 5-cent fee is close to actual costs and admitted that the case had "forced the hand" of the legislature to act after the court ordered that actual costs must be determined for every charge.