In an opinion that could serve as a primer for enhanced legal fees in OPRA cases, Bergen County’s top judge has awarded $10,445 to a requester of records from the county prosecutor’s office.
The opinion clarified a host of issues, including what makes someone a prevailing party under the Open Public Records Act, when contingency fee enhancements are available and which attorney activities can be counted in calculating the lodestar.
Assignment Judge Peter Doyne held in Rivera v. Office of the County Prosecutor, No. BER-L-4310-12, that a records requester can recover fees at his or her lawyer’s regular hourly rate for time spent traveling to and from court, preparing the fee application, typing up documents and reviewing prior cases handled by the same lawyer.
The opinion, released Monday, follows Doyne’s Aug. 8 holding that the plaintiff was entitled to unredacted copies of reports that the Attorney General’s Office requires officers to complete whenever they use physical, mechanical or deadly force. County and municipal officers must turn over the reports to the county prosecutor.
On March 26, Robert Rivera, a retired police officer who investigates police conduct and makes regular requests for public records, asked the Bergen County Prosecutor’s Office for all reports on 2011 occurrences. There was no dispute he was entitled them, but the BCPO wanted to redact the names of the people subjected to use of force.
The records custodian, Executive Assistant Prosecutor Frank Puccio, explained that ordinarily only the names of juveniles and those who were not arrested would be scrubbed but that to look at each of the 1,079 reports to determine whether an arrest had occurred would entail “an extraordinary amount of time.”
Rivera objected, insisting he should be provided with the names for everyone who was not a juvenile.
Puccio responded that even some people who were arrested might have a reasonable expectation of privacy if their mental state was implicated.
In addition, he estimated that reviewing each report could cost more than $13,000. He calculated that sum based on an average of 10 minutes per report at his $74.10 per hour compensation.
Puccio told Rivera the cost would be prohibitive and the time spent would disrupt the BCPO’s operations.
After paying the copying cost of $53.95 and receiving redacted copies of all reports, Rivera sued.
Doyne said the only nonjuvenile names that should be redacted were those who were not criminally charged where the report indicated that the person was suicidal, emotionally disturbed or had a comparable psychological condition. He also held Rivera could recover his legal fees.
Rivera asked for $11,646.25 — a $8,057.50 lodestar enhanced by 50 percent plus $373.34 in costs.
Doyne first found that Rivera was a prevailing party and the entire lodestar, based on 29.3 hours of work at $275 per hour, was justified.
He rejected the argument that Rivera’s lawyer, Walter Luers, an experienced OPRA litigator, should not have billed for reviewing a previous case where he was counsel of record, saying there was no authority for it. “Such a ruling would require attorneys to memorize every facet of the previous case,” wrote Doyne.
Time spent going to and from court was similarly recoverable because lawyers can bill their own clients for such time, Doyne said.
Work on the fee motion was recoverable too. Doyne pointed out that the BCPO had the opportunity to negotiate a fee settlement but offered only the “inadequate” sum of $1,750, and that its own lawyer, John Carbone, conceded at oral argument that he would be billing for the time he expended on the fee dispute.
The hours Luers spent typing documents were also allowable. Luers’ only staff is a part-time secretary and during argument, he described the time he spent on secretarial tasks as contemporaneous with his “lawyerly” work.
Doyne termed Luers’ approach “more efficient than dictation or handwriting” and said it “may have reduced rather than increased the total hours expended.”
The judge also pointed out that younger lawyers are used to doing their own typing, unlike older ones.
Luers, 38, says he types his papers as he composes them, plugging in cites along the way. “I guarantee it would take longer if I had to write it out longhand” and have someone else type it, he says.
Doyne deemed a 25 percent fee enhancement — half the 50 percent maximum — was warranted because of the novelty of the issue and the public importance of the request.
Luers, a Clinton solo and president of the New Jersey Foundation for Open Government, calls the opinion a “good roadmap” for OPRA fee requests. He says it should be followed by Bergen judges because Doyne is “their boss,” but he also plans to attach it to every future fee application, regardless of the county.
He says that when the BCPO complied with Doyne’s order, names were redacted from about 5 percent of the reports.
John Carbone, of Carbone & Faasse in Ridgewood, who represents the prosecutor’s office, referred a request for comment to spokeswoman Maureen Parenta, who did not return calls.