In Gannett Satellite Information Network, LLC v. Township of Neptune, (A-63-21/085719) (Decided June 30, 2023), the Supreme Court of New Jersey held that Gannett Satellite Information Network, LLC(Gannett) was not owed attorney’s fees in its records dispute with the Township of Neptune. The court unanimously declined to adopt an exception to the American Rule, under which each party pays its own legal fees, for common law right of access claims to public records.
Facts of Gannett v. Township of Neptune
In June 2015, Philip Seidle, a police officer employed by Neptune Township, killed his former wife. After the Monmouth County Prosecutor’s Office issued a report on the Seidle case that was based in part on Seidle’s IA files, Gannett submitted to the Township a request for records pursuant to both the Open Public Records Act (OPRA), and the common law, seeking copies of those files. After the Township denied the request, Gannett filed an action in the Law Division seeking a judgment directing the Township to release the requested records, as well as an award of attorneys’ fees and other remedies.
The trial court dismissed Gannett’s OPRA claim but ordered the release of the contested records, redacted in accordance with guidelines prescribed in the court’s opinion, on the sole basis of the common law right of access. The trial court granted a partial fee award.
Before oral argument in the Appellate Division, the Attorney General advised the appellate court that pursuant to the Internal Affairs Policy and Procedures Manual, a redacted version of Seidle’s IA files would be released.
The Appellate Division affirmed in part and reversed in part. First, it affirmed the trial court’s determination that Gannett had no claim under OPRA but was entitled to a redacted version of Seidle’s IA files pursuant to the common law. Second, it held that the New Jersey Supreme Court recognized a right to counsel fees in common law right of access cases under certain circumstances in Mason v. City of Hoboken, 196 N.J. 51, 57 (2008). On the facts presented, however, the Appellate Division reversed the trial court’s partial award of counsel fees.
NJ Supreme Court’s Decision in Gannett v. Township of Neptune
The Supreme Court of New Jersey held that Gannett is not entitled to an award of attorneys’ fees. However, it declined to adopt an exception to the American Rule for common law right of access claims to public records.
“Those claims impose significant burdens on municipal clerks and other records custodians; they require a careful balancing of competing interests and the application of an array of factors that can challenge even a seasoned judge,” Justice Anne Patterson wrote. “If we were to impose fee-shifting in this category of cases, we would venture far beyond the narrow exceptions to the American Rule that our courts have adopted to date.”
In reaching its decision,the New Jersey Supreme Court emphasized that the state’s courts have historically followed the American Rule, which provides that litigants must bear the cost of their own attorneys’ fees. Counsel fee awards, as exceptions to the American Rule, fall under four general categories: those granted pursuant to a fee-shifting statute, such as OPRA; those allowed by court rule, a narrow category; a tightly circumscribed common law exception in settings involving breaches of fiduciary duties; and those granted through a contractual agreement.
The New Jersey Supreme Court went on to note thatan award of attorneys’ fees in connection with common law claims would not fit within any of the four categories of actions in which such awards are authorized under current law. “Were we to accept such an argument, we would expand the narrow fiduciary exception to the American Rule far beyond its logical parameters, and the exception would swallow the rule,” Justice Patterson wrote. The court further found a request for information not subject to disclosure under OPRA, predicated on the common law right of access, is a “particularly inappropriate basis” for an award of attorneys’ fees as an exception to the American Rule. “When a public entity undertakes the balancing analysis required by our decisions on the common law right of access, it should be permitted to formulate a good-faith legal position on the disputed information and to litigate that position, without the risk of an award of attorneys’ fees in the event that a court later rejects it,” Justice Patterson wrote.