In a precedential opinion issued on August 14, 2019, the United States Court of Appeals for the Third Circuit held that a New Jersey college is responsible for paying legal fees due to its failure to comply with the New Jersey Open Public Records Act (OPRA). Golden v. NJIT, Case No. 18-3150 (August 14, 2019).
The Third Circuit reversed the lower court's opinion which had denied counsel fees to two journalists who brought suit against New Jersey Institute of Technology ("NJIT") for failure to release documents that the FBI had directed NJIT to withhold. After the lawsuit was filed NJIT and the FBI revisited the journalists' document requests and elected to release thousands of pages of documents that were originally withheld. The journalists then requested counsel fees as a prevailing party under OPRA's fee shifting provisions.
The United States District Court denied the fee request, holding that there was no nexus between the lawsuit filing and the subsequent release of the records. The District Court agreed with NJIT that it had reasonably followed the FBI's directive.
On appeal, the Third Circuit concluded that the journalists' lawsuit was the catalyst for the production of the information.
"That NJIT withheld records at the behest of the FBI does not afford it a basis to abdicate its role as the records custodian. NJIT alone bore the borden of allowing or denyhing access to the requested records. With that burden comes the attendant responsibility of paying attorneys' fees to the prevailing plaintiff. We will therefore reverse and remand for the calculation of attorneys' fees."
The decision is a harsh lesson for NJIT and puts public officials on notice that relying on a governmental law enforcement agency when responding to OPRA records requests does not provide a safe harbor against paying prevailing party legal fees under OPRA.