(Photo by Sergey Tryapitsyn)
When public entities respond to records requests for the legal bills of outside counsel, they cannot charge for the cost of reviewing the bills in order to redact privileged and confidential information, a New Jersey judge says.
The Open Public Records Act allows records custodians to impose a “special service charge” when complying with a request that “involves an extraordinary expenditure of time and effort,” but Hackensack’s municipal attorney Thomas Scrivo’s review of his own invoices did not qualify.
Hackensack wanted to charge requester Jason Nunnermacker the $450 cost—three hours at $150 per hour—for Scrivo’s review of more than 300 pages of his itemized billings from his firm, McElroy Deutsch Mulvaney & Carpenter in Morristown, for a three-and-one-half-month period.
“Having one’s lawyer review that lawyer’s bill for privileged information would appear to be more routine than exceptional; more ordinary than extra-ordinary,” Superior Court Judge Robert Contillo held Thursday in Nunnermacker v. City of Hackensack.
Contillo saw nothing wrong with outside counsel scrutinizing their billings before granting public access in order to make sure that no confidential matter is revealed. Nunnermacker, himself a lawyer, did not challenge the redactions.
It was to be expected that recent bills like the ones sought in the case could contain privileged material regarding ongoing litigation, personnel matters or contract negotiations, but the cost of culling them should be borne by the government client, not the requester, Contillo said.
OPRA contains no language that supports making requesters pay and such a policy would have “the inevitable effect of restricting access to public records” by pricing some of them out, Contillo added.
Nunnermacker submitted his OPRA request on Jan. 17, asking for McElroy’s billing records from Oct. 1, 2013, through Jan. 31, 2014.
When the clerk advised him he would have to pay the $450 special charge before getting any documents, Nunnermacker emailed Scrivo, asking the reason for it.
Scrivo explained he had to do a line-by-line review of more than 300 pages of invoices.
Nunnermacker objected and demanded the documents without the special charge by Jan. 30 or he would sue. He did not get them so he filed his Bergen County complaint on March 7.
Seven days later, on March 14, the date Hackensack was served, the clerk turned over redacted bills without the charge.
Nunnermacker then sought his fees and costs, as allowed by OPRA.
The city opposed the request, arguing the case should be dismissed as moot. It also stood by its position that it was entitled to pass along the cost of reviewing the records.
The city told the court that the only reason it ended up not charging Nunnermacker was that it had already redacted the invoices in response to a prior OPRA request from Richard Salkin, a Hackensack solo and Scrivo’s predecessor. Salkin served as city attorney for from 1989 to 2005. He was also municipal prosecutor from 2007 to 2012 and is the current school board attorney.
Last December, Salkin submitted an OPRA request for copies of all McElroy Deutsch’s legal bills from July 1, 2013, to date and was inadvertently provided with the unredacted records.
When Hackensack realized the mistake, it went through the records and redacted them, sent the redacted versions to Salkin and asked him to return the unredacted copies.
The city claimed it ultimately decided not to charge Nunnermacker, not because it no longer believed it had the right to do so, but because it would not be fair to make him pay, given that the work had already been done. Even though Salkin got his redacted copies in February, and Nunnermacker did not get them until March, after he sued, the lawsuit was not the cause, so Nunnermacker was not a prevailing party entitled to legal fees, it contended.
Contillo disagreed, noting the Jan. 30 deadline to produce the records and their disclosure the same day the complaint was served. “A clearer causal link between suit and record production could not be drawn,” he wrote.
At oral argument on May 23, McElroy’s Joseph Morris posited that Nunnermacker did not get the records before suing because his request was overlooked due to the crush of business at City Hall.
“Even if Nunnermacker’s suit did nothing more than re-focus the city on his outstanding OPRA request, that too establishes that the lawsuit is what triggered the city’s compliance with his OPRA request,” Contillo said.
Nunnermacker, of Rochelle Park’s Arturi, D’Argenio, Guaglardi & Meliti, who lives in Hackensack, said another requester got the redacted bills around the time he sued without being charged and he thinks he was asked to pay because he ran on an opposing ticket in the last council election. The new administration that was sworn in last July and hired Scrivo promised to cut legal costs but McElroy has billed more than $600,000 in less than a year, he said.
His lawyer, Hackensack solo Donald Lenner, said, “I don’t think, by and large, that legal bills contain privileged or confidential information nor should they.”
Salkin, who still has the unredacted McElroy bills, said there is nothing in them that is privileged and the $450 charge was not valid. “The fuss seemed to be about naming cases they were working on,” he said.
Lawyers should know when preparing a bill for a public entity that it is a public record and couch it in terms that will not reveal confidential information, Salkin suggested.
Scrivo and Morris did not respond to a request for comment.
New Jersey State League of Municipalities attorney Edward Purcell said he thinks the ruling is wrong. He added that the cost for attorney review of OPRA requests can add up over the course of a year and if some of that cost can be recovered, “it’s a good thing for the taxpayers.”
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