The Third Circuit Court of Appeals recently held in Golden v. New Jersey Inst. of Tech. that an author was wrongly denied fees under the New Jersey Open Public Records Act (“OPRA”). According to the appeals court, although the fact that the Federal Bureau of Investigation (“FBI”) directed the New Jersey Institute of Technology (“NJIT”) to withhold the records did not relieve the school of its obligations under OPRA.
NJIT’s OPRA Dispute
In 2015, Pulitzer Prize-winning journalist Daniel Golden and publicist Tracy Locke made public records requests to several public universities while conducting research for Golden’s then-forthcoming book. In 2015 from April to August, Golden and Locke submitted three OPRA records requests to NJIT. However, the documents in possession of NJIT that were responsive to the OPRA requests originated with the FBI and were subject to prohibitions on public distribution.
NJIT’s custodian of records, Clara Williams, therefore asked the FBI to advise NJIT as to whether it should allow access to the records. In no uncertain terms, the FBI directed NJIT to withhold most of the records. NJIT followed this recommendation, and denied the request on the grounds that the documents were exempt from disclosure. Golden and Locke filed suit.
After removal of this case to federal court, NJIT and the FBI agreed to reexamine the previously withheld records. As a result of that review, NJIT produced thousands of pages of documents it had formerly deemed exempt. Golden and Locke then moved for attorneys’ fees under OPRA, which mandates a fee award for prevailing plaintiffs. The District Court denied the fee motion, holding that no nexus existed between the lawsuit filed by Golden and Locke and the eventual release of records. The court was also persuaded by NJIT’s position that it had acted reasonably in following the FBI’s direction.
Third Circuit Rules Requesters Entitled to Attorneys’ Fees
The Third Circuit reversed. On behalf of the court, Judge D. Brooks Smith wrote: “We disagree with both the district court’s conclusion and its misplaced focus on reasonableness.”
In support of its decision, the Third Circuit cited the New Jersey Supreme Court’s 2008 decision in Mason v. City of Hoboken, in which the court held that “prevailing plaintiffs” may attain attorneys’ fees when they obtain records “when a government agency voluntarily discloses [them] after a lawsuit is filed.” (emphasis added) Such plaintiffs are entitled to fees if they can demonstrate (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.”
Here, the Third Circuit found that ”Golden and Locke’s lawsuit was the catalyst for the production of documents and thereby satisfied the Mason test.” As Judge Smith explained:
Before the lawsuit, NJIT refused to release the majority of documents responsive to the first OPRA request and completely denied the second and third requests. After Golden and Locke filed suit, NJIT agreed to the FBI’s consultation procedure and subsequently released 3,445 unredacted pages and 379 partially redacted pages. By releasing these previously withheld records, NJIT abandoned any reliance on the OPRA exemptions it had formerly asserted. There is no indication in the record that NJIT would have produced the previously withheld documents absent Golden and Locke’s lawsuit. On the contrary, NJIT allowed access to the records only after a lengthy, cooperative process overseen by the Magistrate Judge. It is clear, then, that Golden and Locke’s lawsuit was the catalyst for the release of records.
The Third Circuit further held that the fact that NJIT chose to rely upon the FBI’s directives did not alter its conclusion. “That NJIT withheld records at the behest of the FBI does not afford it a basis to abdicate its role as the records custodian,” Judge Smith wrote. “NJIT alone bore the burden of allowing or denying access to the requested records. With that burden comes the attendant responsibility of paying attorneys’ fees to a prevailing plaintiff.”
In support, the Third Circuit cited several cases holding that a third party’s interest does not supersede the records custodian’s obligation to produce non-exempt documents and any obligation to pay attorneys’ fees. Judge Smith wrote:
These authorities, taken together, lead us to one conclusion—it is of no moment that the FBI directed NJIT to withhold the disputed records. NJIT, as the records custodian, bore the duty under OPRA to decide whether to release or withhold the records Golden and Locke sought, as well as the burden to pay attorneys’ fees if it made the wrong decision. In making its decision, NJIT was free to consult with the FBI to determine whether disclosure would impinge upon any of the FBI’s interests. NJIT did not err by advising the FBI that its interests may be affected by production of the documents or by seeking the FBI’s position as to whether disclosure would be proper. Where NJIT went astray was in failing to exercise independent judgment and, instead, unquestioningly obeying the FBI’s orders to withhold the records. NJIT is responsible for that choice and must bear the consequences, i.e., paying attorneys’ fees.
Finally, the Third Circuit rejected NJIT’s argument that because its own actions were eminently reasonable, it was immunized from any obligation to pay attorneys’ fees. “[T]he District Court and the Magistrate Judge incorrectly concluded that, because NJIT had acted reasonably in following the FBI’s orders, it was absolved of any responsibility to pay attorneys’ fees. This interpretation of reasonableness misreads Mason and conflicts with the plain language of OPRA,” Judge Smith wrote. “But even if Mason did impose the ‘reasonableness’ requirement urged by NJIT, its conduct here was not reasonable. As discussed supra, NJIT—not the FBI— had the responsibility to parse the requested records, decide whether exemptions applied, and withhold documents pursuant to those exemptions.”
The Third Circuit remanded the case back to the district court for the calculation of an appropriate fee award.
For more information about the Third Circuit’s decision in Golden v. New Jersey Inst. of Tech.,or the legal issues involved, we encourage you to contact a member of Scarinci Hollenbeck’s Government Law Group.