One Plaintiff is a Catalyst for Relief, But Another Plaintiff is Not

Smith v. Hudson County Register, 2011 WL 1529730 (App. Div. April 25, 2011).  This opinion, by Judge Sabatino, applied the catalyst doctrine to an Open Public Records Act (“OPRA”) case.  In Mason v. Hoboken, 196 N.J. 51 (2008), also an OPRA case, the Supreme Court of New Jersey ruled that the catalyst doctrine remained vital in New Jersey even though the Supreme Court of the United States had rejected that doctrine under federal fee-shifting statutes.  [Disclosure:  I represented an amicus curiae in Mason, whose position on the catalyst doctrine was accepted by the Court].  Mason, however, involved a denial of physical access to public records, while Smith dealt only with the cost of access that had in fact been granted.

Two different plaintiffs, represented by the same lawyers, filed suit to challenge the copying costs that Hudson County imposed.  The second case was filed only after the first plaintiff, Smith, had lost his suit and had filed an appeal.  The second case was stayed at the request of the second plaintiff, pending the result of Smith’s appeal.  The Appellate Division reversed the dismissal of Smith and, following some other events, including a statutory amendment by the Legislature, the County reduced its copying charges. 

Both plaintiffs sought attorneys’ fees under OPRA’s fee-shifting provision, asserting that they were the catalysts for the reduction in copying charges.  Judge Sabatino’s opinion held that Smith was a catalyst but that the second plaintiff was not.  The second plaintiff had not participated in Smith’s appeal, and had done nothing more than to make “a provisional filing in the event that Smith was unsuccessful on appeal.” 

Judge Sabatino also correctly rejected several arguments by the County that fees should not be awarded even if one or both plaintiffs were catalysts for relief.  First, the County had asserted that since Smith had been afforded physical access to the records in question, he had gotten all that OPRA gave him.  The Appellate Division held that “[t]he right of copying is no less important under OPRA than the right of inspection.”  Second, the County claimed that because it had acted “according to a reasonable interpretation of the statute,” the County should not have to pay counsel fees.  Judge Sabatino noted that OPRA “does not restrict fee-shifting to instances of willful violations.”