Attorneys’ Fees Under the Common Law Right of Access

Gannett Satellite Information Network, LLC v. Township of Neptune, ___ N.J. Super. ___ (App. Div. 2021). Prudent practitioners who file cases under the Open Public Records Act, N.J.S.A. 47:1A-1 et seq. (“OPRA”), include an alternative claim under the common law right of access. That latter claim is not a mere sideshow.

Today, the Appellate Division, speaking through Judge Yannotti, addressed a case where plaintiff (doing business as the Asbury Park Press) lost the argument under OPRA but won access under the common law. The panel then, however, denied plaintiff attorneys’ fees. It would not be surprising to see this case, or at least that part of it involving attorneys’ fees, taken up by the Supreme Court.

Plaintiff requested from the defendant Township, under OPRA and the common law, copies of the internal affairs (“IA”) file of Philip Seidle, a Sergeant in the Township’s police department. Seidle had been involved in multiple domestic violence incidents against his wife, which were reported to the police. Later, he shot and killed his wife with his police revolver, in the presence of their daughter, aged 7. Seidle pled guilty to aggravated manslaughter and was sentenced to a prison term of thirty years.

The Monmouth County Prosecutor’s Office (“MCPO”) investigated and issued a report about the death of Seidle’s wife and the history of domestic violence reports. The MCPO report highlighted a flaw in domestic violence policies statewide: domestic violence reports that do not result in criminal charges against a police officer spouse raise a “red flag” as to the fitness of that officer to remain on a police force. The MCPO therefore implemented an “early warning” system for all law enforcement agencies in Monmouth County.

After all that, plaintiff filed its request for documents. The Township denied the request, but furnished a list of documents withheld. Plaintiff then filed this lawsuit. While the case was pending, the Asbury Park Press published an article titled “Philip Seidle, Killer Cop: Ex-Wife ‘did not become a victim until I killed her.'” As Judge Yannotti said, that article was based on “police reports, the MCPO’s report, public court documents, and letters and records provided by Seidle.”

Ultimately, the Law Division, ruling on the Township’s motion to dismiss, held that plaintiff was not entitled to the requested documents under OPRA. But the judge determined that plaintiff had the right to the documents under the common law. She also awarded attorneys’ fees to plaintiff for that success. After the Township’s motion for reconsideration was denied, the Township appealed and plaintiff cross-appealed. Today, the Appellate Division affirmed the substantive rulings as to OPRA and the common law right, but reversed the award of attorneys’ fees.

The first issue for the Appellate Division was whether the case was moot. The Attorney General advised that, pursuant to his statutory authority, he intended to release Seidle’s IA file, with certain redactions. He proceeded to do that. Judge Yannotti concluded that the appeals were not moot. “The Attorney General’s release of Seidle’s IA file does not affect the order awarding Gannett attorney’s fees. Moreover, the issue of whether Gannett is entitled to access to the records under the common law is not moot because that finding was the basis for the award of attorney’s fees. In addition, the issue of whether Gannett is entitled to access to the records under OPRA is not moot because Gannett contends it is entitled to the award of counsel fees under either OPRA or the common law.”

Turning first to plaintiff’s appeal of the denial of the documents under OPRA, Judge Yannotti invoked the de novo standard of review. After canvassing Fraternal Order of Police, Newark Lodge No. 12 v. City of Newark, 244 N.J. 75 (2020), and two Appellate Division decisions that are now pending before the Supreme Court, Libertarians for Transparent Government v. Cumberland County, 465 N.J. Super. 11 (App. Div. 2020), certif. granted, 245 N.J. 38 (2021), and In re Attorney General Law Enforcement Directive Numbers 2020-05 and 2020-6, 465 N.J. Super. 111 (App. Div.), certif. granted, 244 N.J. 447 (2020), the Appellate Division here concluded that “the IA records sought by Gannett are personnel records under OPRA, which are exempt from disclosure under N.J.S.A. 47:1A-10.”

De novo review also applied, Judge Yannotti said, to the Township’s appeal of the decision that plaintiff had a common law right to the IA materials. “To prevail on a claim for access to a public record under the common law, the party seeking access must establish that: (1) the document is a public record under the common law; (2) the party has an ‘interest in the subject matter’ of the record; and (3) a balancing of the party’s right to access and the State’s interest in non-disclosure favors access.” Finding that the Law Division had correctly found the first two of those prongs satisfied, Judge Yannotti focused on the third prong and agreed with the Law Division’s analysis.

That court had recognized that “generally, disclosure of IA files would discourage citizens and fellow officers from reporting police misconduct, which would undermine the purposes of the IAPP [the Attorney General’s Internal Affairs Policy and Procedures, which govern IA investigations by local law enforcement agencies] and also undermine public confidence in the police.” These were “compelling reasons” in favor of denying disclosure under the common law. However, “the unique circumstances of this matter tipped the balance in favor of disclosure. As the judge noted, the records relate to a horrific crime, in which an off-duty officer shot and killed his wife, with his service revolver,in the presence of their young child. The public has a strong interest in knowing how such an event could have occurred.”

Moreover, much of the facts in the IA file had already been made public, including in the Asbury Park Press article. Seidle himself had provided information to the newspaper. Additionally, ” in this particular matter, disclosure would not discourage citizens or fellow officers from reporting police misconduct because there was no indication that any complaint was provided by a person or officer on condition of anonymity. The judge stated that any harm resulting from disclosure could be addressed by redactions of the names of witnesses, or officers who investigated the complaints.”

The foregoing summarizes a longer discussion. But the bottom line was that the Appellate Division found that the Law Division had considered the relevant factors and had appropriately balanced them. And “[b]ecause the judge’s decision was limited to the facts of this case, we do not share the [amicus New Jersey State Association of Chiefs of Police’s] concern that the trial court’s decision will have an adverse impact upon IA investigations generally.”

To that point, the Appellate Division had agreed with the Law Division. But the panel parted company with the court below regarding attorneys’ fees, again applying de novo review. Judge Yannotti noted that in Mason v. City of Hoboken, 196 N.J. 51 (2008), the Supreme Court had stated that attorneys’ fees were available to a party who succeeded on an OPRA claim, and that “[a]bsent an apparent, theoretical basis for such a distinction, we conclude that the catalyst theory applies to common law suits as well.” [Disclosure: I represented an amicus curiae in Mason whose position on the catalyst doctrine more generally was substantially adopted by the Court in that case]. The parties here disagreed as to whether that statement was dicta, but Judge Yannotti said that the Appellate Division had to follow the Supreme Court’s decisions.

However, the panel ruled that whether to award fees for success under the common law right of access was “committed to the sound discretion of the trial court, after consideration of all relevant factors.” Here, ” the Township advanced good faith arguments in support of its contention that Gannett should not be granted access to the records under the common law. The trial court found a right of access but only after a careful examination of the relevant factors under Loigman [v. Kimmelman, 102 N.J. 98 (1986)]. There is no reason to assume that Gannett is not able to bear the cost and expense of pursuing this lawsuit, and the denial of fees under the particular facts and circumstances presented, would not dissuade other litigants from pursuing such claims.”

Nor was it appropriate to award fees based on the “catalyst doctrine.” The IA file was released to the public by the Attorney General “pursuant to the IAPP, in the exercise of his separate and independent authority as chief law enforcement officer in this State.” That did not occur because the Attorney General “perceived [that there was] an unlawful practice.” Accordingly, the panel affirmed in part and reversed in part on the Township’s appeal and affirmed on plaintiff’s cross-appeal.