NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1810-16T3
PORT AUTHORITY POLICE BENEVOLENT ASSOCIATION, INC. and PAUL NUNZIATO,
Plaintiffs-Appellants,
v.
PORT AUTHORITY OF NEW YORK AND NEW JERSEY; WILLIAM SHALEWITZ, in his official capacity as Freedom of Information Administrator for the Port Authority of New York and New Jersey; KAREN EASTMAN, in her official capacity as Secretary for the Port Authority of New York and New Jersey,
Defendants-Respondents. ____________________________________
Argued May 2, 2018 – Decided December 20, 2018
Before Judges Fuentes, Koblitz and Suter.
On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-5789-16. Jeffrey D. Catrambone argued the cause for appellants (Sciarra & Catrambone, LLC, attorneys; Jeffrey D. Catrambone, of counsel and on the brief).
Thomas R. Brophy argued the cause for respondents (Port Authority Law Department, attorneys; Thomas R. Brophy and Sajaa S. Ahmed, of counsel and on the brief).
The opinion of the court was delivered by
FUENTES, P.J.A.D.
Plaintiffs, the Port Authority Police Benevolent Association, Inc., and
Paul Nunziato, filed a Verified Complaint against defendants, the Port Authority
of New York and New Jersey, William Shalewitz, and Karen Eastman, seeking
a response to fifty-eight requests for government records pursuant to the Open
Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13. Defendants provided
responses to six requests, requested more time to respond to fourteen other
requests, and denied the remaining thirty-eight requests as overbroad. The trial
court ordered defendants to produce records pertaining to the fourteen requests,
and granted plaintiffs' application for an award of counsel fees under N.J.S.A.
47:1A-6. The court limited the scope of the award to fees incurred seeking
access to these fourteen requests.
In this appeal, plaintiffs argue the court erred when it: (1) found the
records in counts 1-36, 52, and 58 are not subject to disclosure under OPRA; (2)
A-1810-16T3 2 held defendants are not required to produce the records plaintiffs identified in
their motion for reconsideration; (3) determined the lodestar amount for counsel
fees plaintiffs are entitled to receive as a prevailing party; and (4) denied
plaintiffs' counsel's application for a fee enhancement. Defendants argue the
trial court correctly determined that thirty-eight requests for records filed by
plaintiffs were overbroad. With respect to the award of counsel fees, defendants
argue the court correctly determined plaintiffs are not entitled to a fee
enhancement.
We conclude the court erred in denying plaintiffs' requests 27-29, 31-34,
36, 52 and 58 and affirm the court's decision to deny the remaining requests as
overbroad. We thus remand the matter for the court to reconsider plaintiffs'
award of counsel fees under N.J.S.A. 47:1A-6.
I
The dispute before us derives from a ruling the trial court made on May
17, 2016. Based on this ruling, on June 14, 2016, plaintiffs submitted to
defendants an amended list of fifty-nine OPRA requests for documents.
Defendants responded to only one of these requests. On August 9, 2016,
plaintiffs filed a Verified Complaint against defendants containing fifty-two
counts; each count identified a request for documents that defendant allegedly
A-1810-16T3 3 denied in violation of OPRA. Ten days later, plaintiffs filed an Amended
Verified Complaint, adding six additional counts, for a total of fifty-eight OPRA
requests. Plaintiffs generated this list of fifty-eight requests during the
litigation.1 In a certification submitted to the Law Division as part of defendants'
responsive pleading, defense counsel separated the objections to plaintiffs'
requests into four categories: (1) overbroad requests; (2) missing criteria
requests; (3) completed requests and; (4) open requests. Defendants categorized
thirty-eight requests as "overbroad" or "missing criteria," six as "completed,"
and fourteen as "open."
After hearing counsels' arguments, the trial judge issued an oral and
written decision on October 12, 2016. As a threshold matter, the judge found
the parties did not dispute "that the records that are being requested are
government records [as defined in N.J.S.A. 47:1A-1.1]. So they fall within the
ambit of OPRA." It is equally undisputed that defendants are "not claiming . . .
1 In their appellate brief, defendants included a footnote requesting that this court refrain from referring to the list because "it was never provided to [them]." This request is inappropriate. The proper method for raising issues concerning the content of a party's brief or appendix is via motion practice pursuant to Rule 2:8-1.
A-1810-16T3 4 any of the statutory exemptions." 2 Against the backdrop of these undisputed
issues, the judge made the following additional findings:
(a) Defendants have provided responsive records to six (6) requests (counts 37, 40, 44, 45, 49, 50)
(b) Defendants have denied thirty-eight (38) requests in their entirety (counts 1-36, 52, 58)
(c) Defendants have acknowledged receipt and have provided an expected response date for fourteen (14) requests (counts 38 39, 41-43, 46-48, 51, 53-57).
The judge provided the following explanation for upholding defendants'
decision to deny the thirty-eight requests:
Plaintiffs' requests are overbroad and invalid under OPRA as they fail to properly identify the records being sought. The language used in the majority of the requests does not specifically and with reasonable clarity identify the records sought. Those requests that have properly identified the records being sought, have been granted.
The judge also found the requests imposed "a burden on the custodian to
exercise his discretion and discern the broad 'catch-all' language in order to
respond to [d]efendants' requests." By imposing this burden on the custodian of
records, the judge found plaintiffs' requests fell outside the scope of OPRA. The
2 OPRA has twenty-one statutory exemptions to the term "government record," as defined in N.J.S.A. 47:1A-1.1, which are to be "'construed in favor of the public's right of access.'" Carter v. Doe (In re N.J. Firemen's Ass'n Obligation), 230 N.J. 258, 276 (2017) (quoting N.J.S.A. 47:1A-1). A-1810-16T3 5 judge also found that many of plaintiffs' requests contained "boilerplate
prefatory language" that requires "the custodian to analyze, collate, compile and
exercise discretion," which is not encompassed within OPRA. The judge
concluded these requests are overbroad because they would require the
custodian to conduct open-ended searches.
The judge also found the current requests were strikingly similar to the
previously denied requests. She found that in an attempt to camouflage the
current requests, plaintiffs had merely "broken into subparts" the requests. In
the judge's view, this maneuver did not cure the original problem. Plaintiffs'
requests "remain vague requests for information that would require [d]efendants
to exercise discretion as to which documents are responsive [and which] are
invalid under OPRA." In this light, the judge considered defendants' delay in
responding to the requests reasonable because timely responses would have
disrupted agency operations. Because she found defendants' responses were
lawful and appropriate, the judge denied plaintiffs' application for counsel fees
as a prevailing requestor. See N.J.S.A. 47:1A-6.
On November 1, 2016, plaintiffs filed a notice of motion for partial
reconsideration with respect to the trial court's denial of access to records for
requests: 27-34, 36, 52 and 58. Plaintiffs also filed a motion seeking $36,196.88
A-1810-16T3 6 in attorney's fees. On December 16, 2016, the trial court denied the motion for
reconsideration and awarded plaintiffs $5,400 in attorney's fees. In support of
its award of counsel fees, the trial court found plaintiffs were "a partially
prevailing party" as to counts 38, 39, 41-43, 46-48, 51 and 53-57, but found the
hours billed by plaintiffs' counsel were "excessive and unreasonable" because
the "fee application includes the entirety of time spent and is not limited to
plaintiffs' successes." The court applied the percentage of successful requests
to the total hours billed to reach the lodestar amount of $5,400. In this appeal,
plaintiffs challenge the orders entered on October 12, 2016 and December 16,
2016.
Plaintiffs argue the records in requests 1-36, 52 and 58 are subject to
disclosure under OPRA because the requests are similar to those deemed valid
under Burke v. Brandes, 429 N.J. Super. 169 (App. Div. 2012) and Burnett v.
Cty. of Gloucester, 415 N.J. Super. 506 (App. Div. 2010). Plaintiffs maintain
the requests were made with "reasonable clarity" and listed "identifiable
records." Plaintiffs emphasize these requests merely required defendants to
"search" for documents, not to "conduct research."
Plaintiffs specifically point to four categories of requests the trial court
found inappropriate and outside OPRA's reach: "records of meetings . . . and
A-1810-16T3 7 communications," "contracts and agreements," "emails and written
communications" and "application for grants, assistance, loan guarantees or
reimbursement of expenses to government agencies." Plaintiffs argue these
categories "specifically identify" certain records and are not "overly-broad" or
"open-ended."
Plaintiffs also address the eleven requests that were the subject of the
motion for reconsideration, which, in their judgment, were "narrowly-tailored"
and listed "specifically identifiable governmental records." According to
plaintiffs, these requests concern records that "contain a date range, subject
matter, and identity of the sender and/or recipient," which is "sufficient under
OPRA." Consequently, plaintiffs claim they are all subject to disclosure under
OPRA.
Finally, with respect to the award of counsel fees, plaintiffs argue the court
improperly reduced the lodestar amount by "arbitrarily reducing the attorney
hours by 76% and awarding a lower hourly rate, and improperly did not award
a fee enhancement." Plaintiffs contend the trial court arrived at the lodestar by
improperly using a rigid proportionality requirement.
In response, defendants argue plaintiffs' 4,000 word, seventy-eight page
complaint is overbroad and encompasses a type of record request not envisioned
A-1810-16T3 8 by the Legislature when it enacted OPRA. According to defendants, all of the
requests, and especially requests 1-22, are "deficient" because they seek
"records of meetings" between several individuals over a five-year period,
without identifying specific senders and recipients. Defendants argue that
requests 2, 6, 8, 9, 13, 16, 17 and 23 seek "phone logs, telephone billing records,
or cellular phone/text billing records concerning a variety of different subject
matter." This would require defendants' custodian of government records to
interview "thousands of individuals" to determine which of their billing records
corresponded to the appropriate subject matter. Finally, defendants argue that
requests 5, 6, 7, 9, 10, 11, 12, 27, 29, 31 and 32 lack subject matters that can be
easily searched and are thus outside the purview of OPRA.
Defendants urge this court to uphold the trial court's decision regarding
the amount of counsel fees awarded to plaintiffs. They argue plaintiffs should
only be awarded fees directly related to the "narrow portion of its case where it
prevailed – not to a windfall amount for its unsuccessful requests." According
to defendants, this situation did not require an upward adjustment of the lodestar,
and plaintiffs' request for $36,000 was unreasonable.
A-1810-16T3 9 II
This court reviews "de novo the issue of whether access to public records
under OPRA and the manner of its effectuation are warranted." MAG Entm't,
LLC v. Div. of Alcoholic Beverage Control, 375 N.J. Super. 534, 543 (App. Div.
2005) (emphasis omitted). The purpose of OPRA, N.J.S.A. 47:1A-1 to -13, is
"to insure that government records, unless exempted, are readily accessible to
citizens of New Jersey for the protection of the public interest." Mason v. City
of Hoboken, 196 N.J. 51, 57 (2008) (citing N.J.S.A. 47:1A-1). When it adopted
OPRA, the Legislature codified New Jersey's "longstanding public policy
favoring ready access to most public records." Serrano v. S. Brunswick Twp.,
358 N.J. Super. 352, 363 (App. Div. 2003). OPRA establishes a framework for
public records access and generally requires prompt disclosure of records; it also
provides record seekers a way to challenge a custodian's decision denying
access. Ibid.
Under OPRA, "government record" is defined as follows:
[A]ny paper, written or printed book, document, drawing, map, plan, photograph, microfilm, data processed or image processed document, information stored or maintained electronically or by sound- recording or in a similar device, or any copy thereof, that has been made, maintained or kept on file in the course of his or its official business by any officer, commission, agency or authority of the State or of any
A-1810-16T3 10 political subdivision thereof, including subordinate boards thereof, or that has been received in the course of his or its official business by any such officer, commission, agency, or authority of the State or of any political subdivision thereof, including subordinate boards thereof. The terms shall not include inter- agency or intra-agency advisory, consultative, or deliberative material.
[N.J.S.A. 47:1A-1.1.]
Absent an applicable exclusion or exemption to prevent disclosure, "all
government records shall be subject to public access[.]" N.J.S.A. 47:1A -1.
Therefore, OPRA mandates public access to government records unless the
records are covered by a specific exclusion. Ibid. A records custodian must
grant or deny access to a government record "as soon as possible, but not later
than seven business days after receiving the request," and a failure to respond
within this time "shall be deemed a denial of the request." N.J.S.A. 47:1A-5(i).
If the agency believes it cannot provide a timely response, the custodian must
convey that information to the record seeker within seven business days and
advise when the record will be made available. Ibid.
If a records request is denied, the requestor may challenge the decision by
filing an action in the Superior Court or through a complaint with the
Government Records Council. N.J.S.A. 47:1A-6. When access is denied, the
burden is placed on the agency to prove the denial was authorized by law. Ibid.
A-1810-16T3 11 When assessing the agency's evidence for denying access, "a court must be
guided by the overarching public policy in favor of a citizen's right of access."
Courier News v. Hunterdon Cty. Prosecutor's Office, 358 N.J. Super. 373, 383
(App. Div. 2003). If the court determines that the agency erred in denying
access, the court will order access to the records, and the prevailing party shall
be entitled to reasonable attorney's fees. N.J.S.A. 47:1A-6.
Under N.J.S.A. 47:1A-5(g), if "the custodian is unable to comply with a
request for access, the custodian shall indicate the specific basis therefor on the
request form and promptly return it to the requestor." One such basis is an
overly broad request, as New Jersey courts have stated OPRA governs "requests
for records, not for information." Burke, 429 N.J. Super. at 174 (quoting Bent
v. Twp. of Stafford Police Dep't, 381 N.J. Super. 30, 37 (App. Div. 2005)). In
Burke, we explained the type of requests that may be viewed as overly broad
and thus beyond the scope of OPRA:
"[A]gencies are only obligated to disclose identifiable government records." MAG Entm't, 375 N.J. Super. at 549. The statute "only allows requests for records, not requests for information." Bent, 381 N.J. Super. at 37. A proper request "must identify with reasonable clarity those documents that are desired." Ibid. "Wholesale requests for general information to be analyzed, collated and compiled" by the agency are outside OPRA's scope. MAG Entm't, 375 N.J. Super. at 549. "In short, OPRA does not countenance open-ended
A-1810-16T3 12 searches of an agency's files." Ibid.; see also Spectraserv, Inc. v. Middlesex Cnty. Utils. Auth., 416 N.J. Super. 565, 576 (App. Div. 2010).
Nor is OPRA "intended as a research tool litigants may use to force government officials to identify and siphon useful information." MAG Entm't, 375 N.J. Super. at 546. Furthermore, if a request "would substantially disrupt agency operations, the custodian may deny access to the record after attempting to reach a reasonable solution with the requestor that accommodates the interests of the requestor and the agency." N.J.S.A. 47:1A-5(g).
[Burke, 429 N.J. Super. at 174.]
The salient facts in Burke provide a concrete example of how to determine
whether a request is overly broad. The plaintiff in Burke sought records from
the Office of the Governor regarding "E[-]Z pass benefits afforded to retirees of
the Port Authority, including all . . . correspondence between the Office o f the
Governor . . . and the Port Authority . . . ." Id. at 171. The custodian of records
from the Office of the Governor denied this request on the basis that it was
overbroad. Ibid. The trial court upheld the custodian's denial on this basis. We
reversed because the request "was confined to a specific subject matter that was
clearly and reasonably described with sufficient identifying information,
namely, E-Z Pass benefits provided to Port Authority retirees." Id. at 176. The
request was also limited to "particularized identifiable government records . . .
A-1810-16T3 13 rather than information generally," and "did not require the custodian to conduct
research, or to collect, collate and analyze data." Id. at 176-77. We particularly
noted that because plaintiff's request:
. . . described the records sought with the requisite specificity and narrowed the scope of the inquiry to a discrete and limited subject matter, we conclude his request was neither vague nor overbroad. The request sought the records themselves, not data, information or statistics to be extracted, gleaned or otherwise derived therefrom. Involving no research or analysis, but only a search for, and production of, what proved to be readily identifiable records, plaintiff's properly circumscribed and tailored request was wrongly invalidated as overbroad.
[Id. at 177-78.]
We described the features of an inappropriate OPRA request in Bent, 381
N.J. Super. 30. The plaintiff in Bent requested his entire criminal file from an
investigation jointly conducted by the Stafford Township Police Department,
the United States Attorney for New Jersey, and the Internal Revenue Service.
Id. at 33-34. He also requested "the factual basis underlying documented action
and advice to third parties to act against my interest [having] been credited to
SPD under a Federal Grand Jury credit card investigation." Ibid. We deemed
his request improper under OPRA because he did not request specific documents
and instead "sought the custodian's response to his allegation of police
A-1810-16T3 14 misconduct, borne of his belief that certain unidentified and unnamed documents
on file with the township were wrongfully concealed or withheld from him." Id.
at 39. We held an agency is not obligated to respond to a request seeking
"general information" and framed as an "open-ended demand requir[ing]
analysis and evaluation . . . [.]" Id. at 39-40.
Similarly, in MAG Entm't, this court denied the plaintiff's request for "'all
documents or records evidencing that the [Division of Alcoholic Beverage
Control] [(ABC)] sought, obtained or ordered'": (1) "'revocation of a liquor
license for the charge of selling alcoholic beverages to an intoxicated person in
which such person, after leaving the licensed premises, was involved in a fatal
auto accident'"; and (2) "'suspension of a liquor license exceeding 45 days for
charges of lewd or immoral activity.'" 375 N.J. Super. at 539-40. The plaintiff
did not provide names or any other identifiers in the request and the records
custodian was "required to evaluate, sort out, and determine the documents to
be produced and those otherwise exempted." Id. at 549. This court concluded
the request was "a broad-based demand for research and analysis, decidedly
outside the statutory ambit." Id. at 550.
In N.J. Builders Ass'n v. N.J. Council on Affordable Hous., 390 N.J.
Super. 166 (App. Div. 2007), the plaintiff submitted thirty-eight requests under
A-1810-16T3 15 OPRA that sought documents and data "'used' or 'considered' by COAH or
'support[ing],' 'demonstrat[ing],' 'justif[ying]' or 'verif[ying]' various
determinations relevant to COAH's determinations about fair-share housing
obligations" including "[a]ny and all documents and data which [were] relied
upon, considered, reviewed or otherwise utilized" by any individual at COAH
for an affordable housing project. Id. at 172. We denied the plaintiff's request
on similar grounds. Consistent with the approach we employed in Bent and
MAG Entm't, we stated that the "five-page, thirty-nine paragraph request bears
no resemblance to the record request envisioned by the Legislature" as it
"required a survey of employees . . . before any attempt to compile the
documents and data[.]" Id. at 178. It concluded that the plaintiff "asked COAH
to identify the documents, which is [the plaintiff's] obligation under OPRA."
Ibid.
In contrast, in Burnett, 415 N.J. Super. at 508, we granted an OPRA
request from the County of Gloucester of "[a]ny and all settlements, releases or
similar documents entered into, approved or accepted from 1/1/2006 to present."
In Burnett, our colleague Judge Payne explained "the fact that [the plaintiff]
requested settlement agreements and releases without specifying the matters to
which the settlements pertained did not render his request a general request for
A-1810-16T3 16 information obtained through research, rather than a request for a specific
record." Id. at 513-14. Judge Payne clearly identified the key analytical
distinction by noting that "it is the documents, themselves, that have been
requested, and their retrieval requires a search, not research." Id. at 516.
Here, the trial court's order required defendants to supply plaintiffs with
requests 38, 39, 41-43, 46-48, 51 and 53-57. Defendants originally provided
responses only to 37, 40, 44, 45, 49 and 50. We affirm the trial judge's decision
in this respect. The judge correctly denied plaintiffs' requests 1 to 36, 52, and
58 in the original order, and in the order denying plaintiffs' motion for
reconsideration. This appeal only addresses the above thirty-eight denied
requests. The trial judge did not provide analysis on each individual request and
instead examined them as a whole, occasionally focusing on the language of
specific requests. Each of the requests should have been considered a separate
OPRA request.
III
Requests 1, 3, 5, 7, 14, 18, 19, 22 and 23 begin with the following
language: "Records of meetings (defined as physical or digital calendars,
minutes or notes taken during such meeting by any participant(s), or memoranda
summarizing such meeting and/or actions to be taken as a result of such
A-1810-16T3 17 meeting)." Requests 1 and 3 seek records, as defined above: "sent by, received
by or participated in" by named employees of the Port Authority and " any Port
Authority Commissioner, officer or other employee(s), outside contractor(s) or
any non-Port Authority personnel, concerning the provision of Aircraft Rescue
Fire Fighting . . . services at Port Authority operated facilities" from as early as
2009. (Emphasis added). Although plaintiffs provide a subject matter, albeit a
broad one, the request seeks records of meetings between the named individuals
and any Port Authority or non-Port Authority personnel. This is potentially an
excessively large number of people. It is also unclear how defendants can be
considered custodians of documents in the possession of "non-Port Authority
personnel." These requests would require the records custodian to interpret the
meaning of "concerning the provision of Aircraft Rescue Fire Fighting . . .
services." Plaintiffs do not define the term "concerning," rendering these
requests akin to requests for "information generally," rather than specific,
identifiable records. See Burke, 429 N.J. Super. at 176-77. These types of
requests for documents are not easily searchable by the records custodian and
leave unclear how the custodian is expected to discern what "actions . . . [were]
taken as a result of such meeting[s]."
A-1810-16T3 18 Requests 5 and 7 reflect similar flaws. Request 5 seeks records of
meetings "sent by, received by or participated in" by a named individual and
"any employee of the Federal Aviation Administration between January 1, 2009
and the date of this request." Requests 7 seeks records of meetings "sent by,
received by or participated in" by a named individual and "any employee or
member of the Congress of the United States of America, including any member
of the House of Representatives, Senator, staff member of any staff of an
individual member of Congress or any staff member of any Congressional
committee between January 1, 2009 and the date of this request." Neither of
these requests contains a specific subject matter, and both potentially encompass
a massive number of individuals and documents. Requests 5 and 7 thus fall
outside the scope of OPRA. N.J. Builders Ass'n, 390 N.J. Super. at 178.
Requests 14, 18, 19 and 22 do not include a date restriction. Request 14
seeks records of meetings "participated in by David Garten and any Port
Authority Commissioner, officer or employee, concerning David Garten's
employment with the Port Authority[.]" (Emphasis added). These records
cannot be obtained through a reasonable search because they are framed as a
"broad-based demand for research and analysis." MAG Entm't, 375 N.J. Super.
at 550. Requests 18 and 19 seek records of meetings involving a named
A-1810-16T3 19 individual and any personnel or non-personnel of the Port Authority, as well as
any individual associated with "Legends Hospitality LLC concerning"
agreements reached with Legends Hospitality LLC dating back to 2011. These
requests contain defects similar to requests 1 and 3 in that they encompass such
a large swath of individuals; they also use the ambiguous "concerning"
language, which would require the custodian to search and analyze other
possibly relevant documents to discern what documents may be within the scope
of plaintiffs' request. Although the request for the "agreements reached with
Legends Hospitality LLC" would be appropriate, requesting records of meeti ngs
"concerning negotiations with, proposals made by or to or agreements reached
with Legends Hospitality LLC" imposes an obligation on the custodian not
sanctioned by OPRA.
In request 22, plaintiffs seek records of meetings "sent by, received by or
participated in" by three named individuals and any Port Authority personnel
and non-personnel "concerning the construction, financing, leasing, or operation
of Tower 3 of the World Trade Center between January 1, 2009 and the date of
this request." This request is even broader than the previous requests because it
individually names three people instead of one while also including the
"concerning" language accompanied by a similarly broad subject matter. In
A-1810-16T3 20 sum, all of plaintiffs' requests for records of meetings (requests 1, 3, 5, 7, 14,
18, 19 and 22) are overbroad, ambiguous, and impose an impermissible burden
on the custodian of records. Unlike the plaintiff's request in Burke for
"particularized identifiable government records . . . rather than information
generally," plaintiffs' requests here would "require the custodian to conduct
research, or to collect, collate and analyze data." Burke, 429 N.J. Super. at 176-
77. Plaintiffs' requests are also distinguishable from those of the plaintiff's in
Burnett because there, the court found, "it is the documents, themselves, that
have been requested." Burnett, 415 N.J. Super. at 516. Here, plaintiffs' requests
require research, more than just a search, making them materially different from
the requests in Burnett. Ibid. For these reasons, we affirm the trial court's
decision denying these requests.
IV
Requests 2, 6, 8, 9, 13, 16 and 17 begin with the following language:
"Records of communications (defined as phone logs, telephone billing records,
or cellular phone/text billing records)." Requests 2 and 8 seek records of
communication "sent by, received by or participated in" by a named individual ,
any Port Authority personnel and "any non-Port Authority personnel,
concerning the provision of Aircraft Rescue Fire Fighting . . . services at Port
A-1810-16T3 21 Authority operated facilities" as early as 2009. (Emphasis added). These
requests seek "phone logs, telephone billing records, or cellular phone/text
billing records" "concerning" a specific subject matter, without identifying the
number of possible individuals who fall within its scope. They leave unclear
how the records custodian would be able to discern whether a log or record
"concerned" a specific subject matter. The custodian would also be unable to
discern this information by identifying the individuals involved in the records
or the dates of the records. These requests would require the custodian to
perform an unspecified number of interviews with the named individuals, which
this court has held would "substantially disrupt agency operations." MAG
Entm't, 375 N.J. Super. at 546; see also N.J. Builders Ass'n, 390 N.J. Super. at
181.
Requests 13, 16 and 17 are similarly improper under OPRA. Without a
date restriction, request 13 seeks records of communications concerning the
"retention" of a named individual by the Port Authority "sent by, received by or
participated in" by a named individual and any Port Authority employee. The
lack of a date restriction imposes an impermissible burden on the records
custodian to sort through these records without conducting research or
interviews to determine what subject matter was discussed during a specific
A-1810-16T3 22 billing record or phone log. Requests 16 and 17 seek records of communications
"sent by, received by or participated in" by a named individual and any Port
Authority personnel or non-Port Authority personnel, as well as any individual
associated with Legends Hospitality LLC, concerning agreements reached with
Legends Hospitality LLC since 2011. This would require the records custodian
to produce these records after consulting with potentially dozens of people, both
Port Authority employees and non-Port Authority employees, to determine what
logs or billing records correspond with the requested subject matter. The trial
court thus properly denied all of plaintiffs' requests for these records of
communications.
V
Requests 4, 10, 11, 12, 15, 20, 21 and 35 begin with the following
language: Communications (defined as: correspondence, memoranda, electronic
mail or text message). Request 10 seeks "communications" between a named
individual and any member of Congress as well as staff or employees of
Congress since 2009. Request 12 seeks "communications" between the same
individual and any employee of the Federal Aviation Administration since 2009.
These requests contain no subject matter, encompass an exorbitant number of
possible individuals, and do not identify particular documents. These are clearly
A-1810-16T3 23 requests for information, not documents. Request 11 does not contain a date
restriction and seeks communications "between David Garten and any Port
Authority . . . employee concerning David Garten's employment with the Port
Authority . . . ." This is not a request reasonably searchable by the records
custodian because it would require the custodian to exercise a significant degree
of discretion in deciding what communications "concern" the employment of
David Garten. It also is not limited to specific individuals; it seeks
communications between Garten and any employee of the Port Authority.
Requests 4 and 15 seek "communications" between separately named
individuals, and any Port Authority personnel or non-Port Authority personnel
"concerning the provision of Aircraft Rescue Fire Fighting" as early as 2009.
Request 35 seeks "communications" between a named individual and any Port
Authority personnel or non-Port Authority personnel from 2011 "concerning
agreements reached with Legends Hospitality LLC." These requests essentially
mirror the ones in Part I of this opinion, except they request "communications"
that encompass emails and texts instead of records of meetings. While emails
and texts are more easily searchable, these requests lack specificity regarding
the number of individuals involved and the subject matter addressed. Again,
including "any non-Port Authority personnel" substantially expands the possible
A-1810-16T3 24 pool of potential individuals involved in these "communications," and the
"concerning" language leaves too much discretion to the records custod ian to
decipher what "records" plaintiffs are actually seeking. With respect to request
35, although OPRA permits a request for specific agreements, request 35
becomes overly broad by seeking all correspondence "concerning" any
agreements over a five-year span, without further specificity. This places a
substantial, undue burden upon the records custodian because plaintiffs seek
information rather than requests for documents.
Requests 20 and 21 are similarly overbroad. Request 21 seeks
communications "sent by, received by or participated in" by three separately
named individuals and any individual or individuals . . . concerning the
construction, financing, leasing, or operation of Tower 3 of the World Trade
Center between January 1, 2009 and the date of this request." (Emphasis added).
Indeed, this may be the broadest of plaintiffs' requests because other than
including the three named individuals, there are no other limiting identifiers on
the senders or recipients of the correspondence. Request 21 therefore
encompasses all of their correspondence with any individual "concerning the
construction . . . of Tower 3 of the World Trade Center" over a seven-year span.
This is essentially an "open-ended demand requir[ing] analysis and evaluation
A-1810-16T3 25 which the agency is under no obligation to provide . . . ." Bent, 381 N.J. Super.
at 40. Request 20, although narrower, is similar to previously discussed
improper requests because it seeks communications of a named individual and
"any individual . . . employed by or acting as a representative of Legends
Hospitality LLC concerning negotiations with, proposals made by or to or
agreements reached with Legends Hospitality LLC" within a four year span.
Instead of requesting specific agreements regarding specific topics, plaintiffs
seek general information "concerning" potentially dozens of agreements within
a large span of time. These types of requests are overbroad under OPRA.
Before we address and discuss the next category of requests, it is
necessary to address request 23, which seeks communications, records of
communications and records of meetings
[s]ent by, received by or participated in by the following individuals with any and all officers, staff and/or members of the Board of Commissioners concerning Memoranda of Agreement/Letters of Agreement executed by Paul Nunziato and Patrick Foye on or about May 9, 2013 and released in Port Authority Freedom of Information Request Number 15227 . . . .
Request 23 then lists twenty-two individuals. We conclude this exemplifies the
kind of "[w]holesale request[] for general information" that must be "analyzed,
collated and compiled" by defendants, as well as an "open-ended search[] of
A-1810-16T3 26 [defendants'] files." MAG Entm't, 375 N.J. Super. at 549. This is the type of
request that substantially disrupts an agency's operations. "[I]f a request would
substantially disrupt agency operations, the custodian may deny it and attempt
to reach a reasonable solution that accommodates the interests of the requestor
and the agency." MAG Entm't, 375 N.J. Super. at 546 (citing N.J.S.A. 47:1A-
5(g)). Although not explicitly defined, "[d]isruption may simply be inferred
from the breadth, generality and complexity of the request at issue, which
'necessitates work by [agency] employees that is neither assigned by the agency
nor envisioned by OPRA.'" Spectraserv, Inc., 416 N.J. Super. at 579-80 (quoting
N.J. Builders Ass'n, 390 N.J. Super. at 181). "A request that . . . demands
assessment and preliminary inquiry . . . is sufficient to give rise to an inference
that compliance will 'disrupt agency operations.' Disruption may be inferred
because a request . . . necessitates work by [the agency] that is neither assigned
by the agency nor envisioned by OPRA." N.J. Builders Ass'n, 390 N.J. Super.
at 181.
Here, request 23 would require the records custodian to search through
correspondence, emails, texts, phone logs, billing records, calendars, minutes
and notes of meetings of twenty-two individuals, find the relevant records and
respond to plaintiffs within seven business days. Although plaintiffs attempted
A-1810-16T3 27 to limit the subject matter to records that concern agreements executed by
specific people on a specific date, the scope and breadth of the records request
still falls outside the purview of OPRA.
VI
Requests 24, 25 and 26 begin with the following language:
Records Contracts or written agreements governing any period between January 1, 2008 and December 31, 2020 between the Federal Government of the United States of America, including any branch or agency thereof, and the Port Authority providing for financial aid, provision of equipment and/or reimbursement of Port Authority expenses, whether for personnel, outside contractors or equipment, related to the provision of public safety and/or security at Port Authority facilities ....
Request 25 also seeks contracts between the Port Authority and the State
of New York while request 26 seeks contracts between the Port Authority and
the State of New Jersey. These requests seek: "records [of] contracts or written
agreements" for three different kinds of equipment along with "related
equipment and staffing/training," "records [of] contracts or written agreements"
for police canines along with "related equipment and staffing/training s" and
"records [of] contracts or written agreements" related to officers assigned to the
"Transportation Security Agency," Aircraft Rescue and Firefighting operations,
and security for political figures.
A-1810-16T3 28 Similar to the requests we addressed and discussed in Part V of this
opinion, these requests would also substantially disrupt agency operations.
Although circumscribed to specific subjects, the requests seek records of
contracts or agreements between the Port Authority and three different
governments encompassing a twelve-year span. These are the type of requests
from which disruption may be inferred because of "the breadth, generality and
complexity of the request;" that would "necessitate[] work by [agency]
employees that is neither assigned by the agency nor envisioned by OPRA."
Spectraserv, Inc., 416 N.J. Super. at 579-80 (quoting N.J. Builders Ass'n, 390
N.J. Super. at 181). These requests are also ambiguous because they ask for
"Records Contracts or written agreements." This language leaves unclear
whether plaintiffs seek the "contracts or written agreements" themselves or
whether they seek records of the contracts or written agreements. Plaintiffs
could have easily narrowed the request; these broad, complex requests would
substantially disrupt agency operations. Under these circumstances, defendants
were not required to provide responses to these requests.
VII
We now review the trial court's decision to deny plaintiffs' motion for
reconsideration of the ruling that rejected requests 27-34, 36, 52 and 58. The
A-1810-16T3 29 court found these requests were properly denied by defendants because they
were overbroad. We conclude the trial judge erred in upholding defendants'
denial of requests 29, 31-34 and 58, and affirm the judge's decision to deny
request 30.
Requests 33 seeks "written reports and recommendations made by the
Chertoff Group to the Port Authority of New York and New Jersey" from 2009.
Request 34 seeks "reports, memos, and written and electronic communication[s]
generated by the Chertoff Group regarding any candidates who applied for the
position of Chief Security Officer issued between January 1, 2012 and December
31, 2012." Both of these requests were proper under OPRA. Request 33 seeks
specific identifiable documents in the form of reports generated by the Chertoff
Group. The absence of a specific subject matter does "not render [the] request
a general request for information obtained through research." Burnett, 415 N.J.
Super. at 513-14. Request 34 seeks similar documents, limited to documents
generated by the Chertoff Group, and limits the subject matter and period to one
year. These records, generated by one sender regarding a specific position,
limited to a short time period, should be readily accessible and do not require
research on the part of the records custodian.
A-1810-16T3 30 Request 58 was also improperly denied. In this request plaintiffs seek
"applications for grants, assistance, loan guarantees, or reimbursement of
expenses submitted by the Port Authority . . . to any level or agency of
municipal, state or federal government during the period January 1, 2008 and
the date of this request." This is a request for specific identifiable documents
that should be accessible to the records custodian. Although request 58 spans a
wide range of time, plaintiffs request the documents themselves, not general
information. This does not require the custodian to do research or analyze data.
It is similar to the requests for contracts, invoices and retainer agreements
already turned over by defendants in requests 37-57.
Requests 29, 31 and 32 seek similar types of documents. They all seek
"electronic mail" between two specifically named individuals over a one year or
two year timespan. Although they do not contain specific subject matter, the
requests would not necessarily require the records custodian to conduct research.
The custodian can access responsive documents by searching the email accounts
of the named individuals and print the correspondence between the two email
accounts. Because the requests seek emails for at least a one-year timespan, this
could involve a substantial amount of documents. The lack of subject matter is
concerning, but since the requests are for readily accessible documents limited
A-1810-16T3 31 by sender/recipient, they constitute proper access requests under OPRA. In
reaching this conclusion, we are mindful to construe any shortcoming in the
request "in favor of the public’s right of access." N.J.S.A. 47:1A-1.
Request 27 seeks "written and email communications from Arlene
Grampp regarding asset forfeiture for the time period of January 1, 2010 to
January 1, 2016."
Request 28 seeks the same types of communications "from Martin Gleeson
regarding Port Authority Police Sergeants' promotions and the Sergeants'
Supervisory Development course from October 1st, 2015 through November
17th, 2015." Request 28 is narrower than request 27 because it limits the
documents based on the sender, includes a detailed subject matter, and limits the
timespan of communications to approximately one month. Request 27 contains
similar features, but significantly expands the timespan of communications to
six years. However, since these requests are for emails from a specific sender
or recipient that can be searched using a subject phrase, they most likely can be
electronically identified and retrieved with relative ease. Absent countervailing
evidence showing the requests as framed impose an undue burden on the
custodian, we conclude they are both proper requests under OPRA.
A-1810-16T3 32 Requests 36 and 52 present similar characteristics. Request 36 seeks
"written and email communications from Thomas Belfiore, David Garten, or
Martin Gleeson containing the terms 'Paul Nunizato', 'PBA,' 'Port Authority
PBA', 'Paul' or 'Nunizato' from November 2, 2015 through November 25, 2015."
Plaintiffs provided defendants keywords to search, and limited the senders and
timespan to less than one month. Request 52 seeks the same communications
"from Executive Director Patrick Foye from January 1, 2014 through December
31, 2016 containing the terms or phrases 'PBA', 'Port Authority PBA', 'Paul
Nunziato', 'Nunziato', 'O'Brien', 'Michael O'Brien', 'Pope Francis', 'Pope', 'FOI',
'Freedom of Information', or 'OPRA'. Similar to request 36, request 52 is limited
to these communications that contain certain search terms. Although the period
is larger, this request is reasonably tailored and should have been upheld by the
trial court.
We reach a different conclusion with respect to request 30. Because the
language used by plaintiffs in this request is far less clear, the trial judge
properly held the custodian was not obligated to respond under OPRA. Request
30 seeks "written and email communications and calendars referencing meetings
between Dr. Edward Bennett . . . and Lt. Timothy McGovern . . ., Mr. Martin
Gleeson . . . and any other Port Authority employees involved in the case
A-1810-16T3 33 regarding Police Officer Steven Napoli JFK and Byron Miller JFK between
August 21, 2014 to the date of this request." This would require the records
custodian to determine the communications, including calendars, that reference
meetings between three individuals and any other Port Authority employees
"involved in the case" regarding two individuals. The custodian would also have
to determine what documents plaintiffs are seeking. The trial judge properly
upheld the denial of request 30 because it would require the custodian to perform
far more than just a search for documents.
VIII
Finally, we address the amount of counsel fees the trial court awarded
related to those requests in which the court found plaintiffs were the prevailing
party. The trial judge awarded plaintiffs $5,400 in counsel fees. Plaintiffs argue
the judge used an "overly rigid and simplistic mathematical approach" to reduce
by seventy-six percent the amount of counsel fees requested. The judge found
plaintiffs prevailed with respect to requests 38, 39, 41-43, 46-48, 51, 53-57, and
awarded counsel fees incurred in the enforcement of those requests. The judge
rejected plaintiffs' application for an award of counsel fees in the amount of
$46,196.88, which the judge found was "calculated at an hourly rate of $495.00
for 56.25 hours of work performed plus a 30% lodestar enhancement."
A-1810-16T3 34 The judge found the number of hours plaintiffs' counsel claimed they
devoted litigating the case were "excessive and unreasonable" because: (1)
plaintiffs only prevailed in fourteen of the fifty-eight requests; and (2) the issues
before the court were not novel. Under this approach, the judge found plaintiffs
prevailed to enforce only 24.1% of the total requests and reduced the number of
billable hours to 13.5. The judge then multiplied 13.5 by an hourly rate of
$400.00 to reach $5,400. The judge also rejected plaintiffs' counsel's request
for a lodestar enhancement.
Pursuant to N.J.S.A. 47:1A-6, if "[a] requestor . . . prevails in any
proceeding [the requestor] shall be entitled to a reasonable attorney’s fee." A
requestor is entitled to attorney's fees if there is: (1) "a factual causal nexus
between plaintiff's litigation and the relief ultimately achieved"; and (2) "that
the relief ultimately secured by plaintiffs had a basis in law." Mason, 196 N.J.
at 76 (quoting Singer v. State, 95 N.J. 487, 494 (1984)). We review awards of
counsel fees under an abuse of discretion standard. McGowan v. O'Rourke, 391
N.J. Super. 502, 508 (App. Div. 2007). Determinations regarding counsel fees
"will be disturbed only on the rarest of occasions, and then only because of a
clear abuse of discretion." Ibid. (quoting Packard-Bamberger & Co. v. Collier,
167 N.J. 427, 444 (2001)).
A-1810-16T3 35 To determine the amount of counsel fees, the court calculates the
"lodestar," which is the number of hours reasonably expended by the successful
party's counsel, multiplied by a reasonable hourly rate. Litton Indus., Inc. v.
IMO Indus., Inc., 200 N.J. 372, 386 (2009). The court considers the following
factors in calculating the "lodestar":
(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly; (2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer; (3) the fee customarily charged in the locality for similar legal services; (4) the amount involved and the results obtained; (5) the time limitations imposed by the client or by the circumstances; (6) the nature and length of the professional relationship with the client; (7) the experience, reputation, and ability of the lawyer or lawyers performing the services; [and] (8) whether the fee is fixed or contingent.
[Id. at 387 (citing R.P.C. 1.5(a)).]
The court may reduce the lodestar "if the level of success achieved in the
litigation is limited as compared to the relief sought." New Jerseyans for a Death
Penalty Moratorium v. New Jersey Dep't of Corr., 185 N.J. 137, 154 (2005)
(quoting Rendine v. Pantzer, 141 N.J. 292, 336 (2005)). However, it should not
be reduced "simply because the plaintiff failed to prevail on every contention
raised in the lawsuit." Ibid. (quoting Hensley v. Eckerhart, 461 U.S. 424, 435
A-1810-16T3 36 (1983)). Our Supreme Court has also cautioned against employing a
"mathematical approach [that compares] the total number of issues in the case
with those actually prevailed upon' because such a ratio provides little aid in
determining what is a reasonable fee in light of all the relevant factors." New
Jerseyans for a Death Penalty Moratorium, 185 N.J. at 154, (internal citations
omitted). The Court also rejected an approach that relies "on percentages of
documents obtained to determine whether a reduction of the lodestar is
appropriate in OPRA cases." Id. at 155 Instead, the Court directed trial judges
to
conduct a qualitative analysis that weighs such factors as the number of documents received versus the number of documents requested, and whether the purpose of the OPRA was vindicated by the litigation. Further . . . the court also should consider the factors enumerated in RPC 1.5(a), which include the novelty of the issue, the time and labor required to conclude the matter, and whether the representation precluded the attorney from undertaking other employment opportunities. If, after consideration of all the relevant factors, the court concludes that the requester has obtained a high degree of success, the requester should recover the full lodestar amount.
[Ibid. (internal citations omitted).]
Here, plaintiffs argue the trial judge's reliance on a mathematical formula
to determine plaintiffs' degree of success, and thereafter apply the ratio produced
A-1810-16T3 37 by this exercise to determine the amount of counsel fee plaintiffs' are entitled to
receive as a prevailing party, is precisely the approach the Supreme Court
rejected in New Jerseyans for a Death Penalty Moratorium. We disagree. The
trial judge carefully analyzed plaintiffs' fee application and concluded it
improperly contained time spent on items that were found outside the scope of
OPRA. The judge also considered the fact that the parties had previously
litigated almost identical requests and "[m]any of plaintiffs' submissions were
identical to those in previous pleadings and briefs." The judge analyzed these
factors and then calculated the lodestar based on the percentage of successful
requests. Although the judge used a mathematical approach, she also conducted
a qualitative analysis using these factors and considered whether the requests
furthered the purpose of OPRA. We conclude the judge was entitled to weigh
heavily the fact that plaintiffs were successful only in fourteen out of fifty-eight
requests, and that these requests were almost identical to ones previously denied.
The court's approach did not constitute an abuse of discretion or an erroneous
application of law.
However, because eleven requests were improperly denied, we remand the
matter to the trial judge to adjust the award of attorney's fees accordingly. The
A-1810-16T3 38 judge must also determine a reasonable award of counsel fees related to
plaintiffs' success in this appeal.
Affirmed in part, reversed in part, and remanded for the trial court to
determine an award of counsel fees to plaintiffs consistent with this opinion.
A-1810-16T3 39