The Common Law Right of Access to Public Records and the Cost of the Fight

It’s pretty big news when a judge grants a $45,000 fee award in a successful lawsuit seeking public records under the common law right of access.  It’s not just the magnitude of the figure, but that the requester-plaintiff — the little guy — could have been stuck with the tab.

Many of our readers know that a records requester who files an OPRA lawsuit and wins — i.e., the records are public under the Records Act — will recover his or her costs, including legal fees. OPRA mandates it. The outcome is not so certain if the records are deemed public under the common law right of access (a body of law based on court decisions). In that case, there’s no mandate requiring a court to award attorney’s fees to the plaintiff, and no doubt many of us can rattle off a slew of examples when the requester got the short end of the stick. You may even have felt the sting first-hand.

Governments are aware of this circumstance, and less-than-forthright ones may take it into account when addressing requests for records they would rather keep from view.  Some that balk at releasing records that are public under common law appear to be doing so for no other reason than they are betting no one will sue.

One example involves Hainesport Township, which in 2014 denied a request for the names of health benefits enrollees shortly after Middletown Township lost a lawsuit involving the very same issue. Middletown was required to release the records but, as a consolation prize, didn’t have to reimburse the plaintiff’s costs. The judge in the Hainesport case, however, sent a very clear message — thou shalt not disregard the law — by awarding legal fees to the plaintiff.

Fortunately, New Jersey courts are awarding fees to plaintiffs in common law cases with increasing frequency. This is a welcome development that helps level the playing field and that we hope results in a greater degree of voluntary compliance with open records laws.