By: Ruhani K. Aulakh, Law Clerk
Editor: Sanmathi (Sanu) Dev, Esq.
On June 20, 2023, the New Jersey Supreme Court in Gannett Satellite Info. Network, LLC v. Township. of Neptune declined to adopt an exception to the American Rule for attorneys’ fees under common law right of access claims to public records, which requires each party to pay its own fees in civil litigation. The Court held that expanding the four categories of exceptions to the American Rule to include attorneys’ fees under the common law right of access would violate public policy.
A former police officer employed by Neptune Township (“Township”) killed his wife in 2016 and was sentenced to a thirty-year prison term. Two years later, the Monmouth County Prosecutor’s Office issued a report on the case that was based on the officer’s Internal Affairs (“IA”) records. Gannett Satellite Information Network, d/b/a the Asbury Park Press (“Gannett”) submitted a request for the IA records to the Township, pursuant to both the Open Public Records Act (“OPRA”) and the common law right of public access. The Township’s municipal clerk denied the request, citing to portions of the Internal Affairs Policy and Procedures Manual that addressed the confidentiality of IA records.
Gannett sued the Township in the Superior Court of New Jersey, claiming violations of both OPRA and the common law. Gannett requested the release of the records and an award for attorneys’ fees. The Township moved to dismiss the action for failure to state a claim, which the trial court granted in part and denied in part. The trial court dismissed Gannett’s OPRA claim, but ordered the release of the contested records in accordance with the common law and awarded a partial fee award.
The Township appealed to the New Jersey Appellate Division, arguing that the trial court erred in releasing the requested records and awarding a partial award for attorneys’ fees. Gannett cross-appealed, arguing that the trial court erred in dismissing its OPRA claim. The Attorney General informed the Appellate Division that a redacted version of the officer’s IA files would be released, so only the question of attorneys’ fees and the OPRA claim remained. The Appellate Division affirmed the trial court’s determination that Gannett had no claim to the officer’s IA files under OPRA. Regarding the award of attorneys’ fees, the Appellate Division held that while the Court recognized a right to attorneys’ fees under the common law right of access in Mason v. City of Hoboken, 196 N.J. 51, 57 (2008), that right is subject to the discretion of the court. The Appellate Division utilized its discretion and reversed the trial court’s award of attorneys’ fees under the common law right of access.
The New Jersey Supreme Court granted Gannett’s petition for certification, focusing solely on the issue of attorneys’ fees. The Court affirmed the Appellate Division’s reversal of the award for attorneys’ fees; however, the Court’s reasoning differed. The Court clarified its holding in Mason, stating that it had not recognized a right to attorneys’ fees under the common law right of access; rather, it construed several provisions of OPRA to determine the award of fees in that case. As such, the determination of an award for attorneys’ fees under the common law right of access was a question of first impression for the Court.
The Court held that it has recognized exceptions to the American Rule under four general categories. First, it recognizes an exception pursuant to fee-shifting statutes. Second, it recognizes an award of attorneys’ fees when permitted by court rule. Third, attorneys’ fees may be awarded in decisions involving breaches of fiduciary duties. Lastly, an exception may apply where the parties have contractually agreed to an award of attorneys’ fees.
Here, the Court held that an award of attorneys’ fees does not fit within any of the four categories of exceptions. Further, the Court held that recognizing an exception to the common law right of access case would violate public policy. The Court reasoned that a common law request for information requires a records custodian to conduct a much more fact intensive analysis to determine whether the requested information should be released. If there is a threat of an award of attorneys’ fees, a records custodian may be inclined to release information not properly subject to disclosure in order to avoid such an award. Thus, the Court declined to adopt an exception to the American Rule under the common law right of access.
The Court provided two recommendations to ensure the proper disposition for requests of information pursuant to the common law right of access. First, it recommended that clerks and other records custodians for public entities receive comprehensive training with respect to common law right of access claims. Second, it urged individuals requesting information pursuant to a common law right of access to explain, in detail, their interest in the subject matter of the material.
