Did Raritan have Legal Fee Phobia or Press Phobia?

The borough of Raritan will pay Gannett Co $542,000, the highest legal fee ever awarded under New Jersey’s Open Public Records Act (OPRA).  They got there either because they were afraid of the newspaper, afraid to pay their lawyer or both.

Newspapers and Political opponents love to talk about legal fees.  Lawyers are an easy target and hourly billing often creates good headlines.  After all, voters generally do not hire lawyers unless they are buying a house which is usually done at a flat fee, so any legal fee over $2,000 is usually shocking. Raritan is what happens when government does not pay good municipal lawyers or when government overrides their advice.

The Open public Records Act first became effective July 8, 2002, representing a sweeping change to New Jersey’s public access laws. The public policy behind OPRA is that making government records readily available to the citizens of New Jersey, with certain exceptions, furthers the public interest. According, lawmakers intended for the law to be as broad as possible, specifically stating in their legislative findings that any limitations on the right of access should be construed in favor of the public’s right of access.

Municipalities often get into trouble when determining whether requested documents fall under OPRA’s definition of “government record.” Public agencies are not required to turn over every piece of paper in their file cabinets, rather, only those that records that have been made, maintained, or kept on file in the course of official business, or that have been received in the course of official business. OPRA also provides for 24 exceptions to disclosure, which cover issues ranging from criminal investigatory records to trade secrets to documents protected by attorney-client privilege.

Nonetheless, blanket refusals can lead to legal headache if they are not supported by statute or established case law. In Raritan’s case, it attempted to argue that requested payroll data, which was stored in electronic form, did not constitute a “government record” because humans could not decipher it without the aid of computer software.

The court disagreed. As Superior Court Judge Yolanda Ciccone explained, “The Court is convinced that just as ‘microfilm,’ which is specifically identified as a ‘government record’ under OPRA, cannot be used by a human without the assistance of a machine, the same is true about the non-PDF computerized data.”

Now, the municipality is paying the price. Under OPRA, a requestor who prevails in any proceeding brought under the law is entitled to a reasonable attorney’s fee. Given the protracted nature of Raritan’s legal battle with Gannett Co., a special master appointed by the court recently determined that the municipality must pay $542,000, which may go down as the costliest OPRA mistake in New Jersey history.

For a more detailed discussion on the case, please visit the Scarinci Hollenbeck Government and Law Blog.

Donald Scarinci is a managing partner at Lyndhurst, N.J. based law firm Scarinci Hollenbeck.  He is also the editor of the Constitutional Law Reporter and Government and Law blogs.

Did Raritan have Legal Fee Phobia or Press Phobia?