Opinion
DOCKET NO. A-1503-14T2
03-18-2016
SIGNATURE INFORMATION SOLUTIONS, LLC, Plaintiff-Appellant, v. JERSEY CITY MUNICIPAL UTILITIES AUTHORITY, and THE RECORDS CUSTODIAN OF THE JERSEY CITY MUNICIPAL UTILITIES AUTHORITY, Defendants-Respondents.
Walter M. Luers argued the cause for appellant. Alice M. Bergen argued the cause for respondents (DeCotiis, FitzPatrick & Cole, LLP, attorneys; Daniel E. Zwillenberg, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Simonelli and Carroll. On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-3308-14. Walter M. Luers argued the cause for appellant. Alice M. Bergen argued the cause for respondents (DeCotiis, FitzPatrick & Cole, LLP, attorneys; Daniel E. Zwillenberg, on the brief). PER CURIAM
Plaintiff Signature Information Solutions, LLC appeals from that part of the October 10, 2014 Law Division order, which denied its request for attorney's fees pursuant to the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13. For the following reasons, we affirm.
We derive the following facts from the record. Plaintiff is a private, for-profit corporation that "collects, packages and re-sells public information, including but not limited to [Uniform Commercial Code] statements, tax lien reports, corporate status reports, flood searches, tidelands claims and grant searches, tax assessments and a wide variety of other public information." Defendant Jersey City Municipal Utilities Authority (JCMUA) is an independent municipal utilities authority organized pursuant to N.J.S.A. 40:14B-1 to -69 to provide water and sewer service to residents and businesses of the City of Jersey City (City). JCMUA does not directly administer the provision of water services. Instead, it contracts with a third-party vendor, United Water Jersey City, Inc. (United Water) for the management, administration, operation, and maintenance of the City's water facilities and systems.
We shall hereafter sometimes collectively refer to JCMUA and United Water as defendants.
United Water is responsible for all billing for water service provided to Jersey City residents and businesses. It maintains all billing records, prepares a billing and collection report known as an Aged Accounts Receivable (AAR) Report, and provides the AAR Report to JCMUA on a monthly basis. United Water also provides JCMUA with real-time remote access to its database of utilities accounts through a web browser; however, JCMUA has no ability to manipulate or export the data displayed, and can only print hard copy "screen shots" of that data.
The parties have a longstanding relationship. For many years, plaintiff submitted nearly daily OPRA requests to JCMUA for municipal water billing and lien data. In response, JCMUA printed hard copy "screen shots" of the data, converted them to a portable document file (PDF) format, and provided the requested data to plaintiff in the PDF format on almost a daily basis.
In late 2012, defendants fell behind in responding to plaintiff's numerous OPRA requests. Plaintiff filed a complaint with the Government Records Council (GRC), which resulted in a settlement agreement. To spare plaintiff payment of a fee for the requested records, the settlement agreement provided that defendants would submit the data in hard copy converted to a PDF.
Following the settlement, plaintiff continued submitting numerous and regular OPRA requests to JCMUA, and defendants responded in as timely a manner as possible. To assist plaintiff, United Water provided a representative who plaintiff could directly contact. The representative promptly and regularly provided the information plaintiff requested.
On May 28, 2014, on plaintiff's behalf, Cynthia McBride submitted an OPRA request to JCMUA's Director of Finance, John Folk, requesting that JCMUA provide "utility billing information (from United Water) for all of Jersey City parcels/properties" from "the 'first account' through the 'last account' inclusive" (the May 2014 OPRA request). The May 2014 OPRA request did not specify a beginning and end date, but it specifically requested that JCMUA provide the data in electronic format. McBride later requested her own login credentials to permit her direct access to United Water's database of utilities accounts.
Plaintiff used the term "thru date" in the May 2014 OPRA request without defining the meaning of that term.
McBride and Folk discussed the OPRA request, but they disagreed as to what they said to each other. McBride claimed she requested a "snapshot" of United Water's accounts data in electronic format. Folk claimed that McBride requested the data on a daily basis and also requested her own log-in credentials so she could remotely access United Water's database of utilities accounts on an on-going basis. Folk asserted that the most recent AAR Report as of April 2014 (the April 2014 AAR Report) contained all of the data plaintiff requested and he offered it to McBride, but she refused it. McBride countered that Folk never offered the April 2014 AAR Report and she would not have refused it if he had done so.
In any event, in an effort to accommodate McBride, JCMUA asked United Water whether it could provide the requested data in the electronic format she requested and also provide her with remote access to its database of utilities accounts. On June 11, 2014, United Water responded as follows:
Per the mediation we had, we agreed that all account information would be sent to [plaintiff] th[r]ough the individual OPRA requests. We have given them a direct contact in which our representative responds to all requests in a very timely fashion. We have also offered them the ability to come into the office to do their own searches. In speaking with management and per our prior discussion, we are still of the position where we cannot offer off site access to our billing system, nor do we have a specific report already created to accommodate [the OPRA] request. At this time we do not have the resources to have any new reports created. We have complied with all of the OPRA requests sent to us for information requested by her company and at this point we need to continue the process as is unless they want to come to our office to do their individual searches in which we will gladly have that set up for them.Folk sent United Water's response to McBride. The record does not reveal that she, or anyone else on plaintiff's behalf, replied. Instead, on July 26, 2014, plaintiff filed a verified complaint and order to show cause (OTSC), asserting defendants violated OPRA and the common law right of access, and seeking access and an award of attorney's fees and costs.
[(Emphasis added).]
Prior to filing an answer, on September 5, 2014, defendants sent plaintiff the most recent AAR Report containing data through August 30, 2014 (the August 2014 AAR Report). Defendants requested dismissal of the complaint, but plaintiff refused and continued the litigation, claiming that the August 2014 AAR Report did not satisfy all aspects of the May 2014 OPRA request.
The issue before the trial court was whether JCMUA had to provide the requested data in the specific electronic format plaintiff requested. On the return date of the OTSC, defendants advised the court that prior to the lawsuit, United Water had no ability to provide the data in the specific electronic format plaintiff requested; however, United Water had recently determined it could now generate a report of the requested data, but to do so required compilation of additional data-processed information that was not readily available and would require the expenditure of forty-eight man-hours of labor at a cost of $105 per hour. Thus, defendants requested that plaintiff pay a special service charge.
The court rejected plaintiff's argument that it should not pay a special service charge and ordered plaintiff to pay $3,851.19 pursuant to N.J.S.A. 47:1A-5(d), which provides as follows, in pertinent part:
Defendants requested $5000, but the court found that $3,851.19 was a reasonable amount.
If the public agency does not maintain the record in the medium requested, the custodian shall either convert the record to the medium requested or provide a copy in some other meaningful medium. If a request is for a record: (1) in a medium not routinely used by the agency; (2) not routinely developed or maintained by an agency; or (3) requiring a substantial amount of manipulation or programming of information technology, the agency may charge, in addition to the actual cost of duplication, a special charge that shall be reasonable and shall be based on the cost for any extensive use of information technology, or for the labor cost of personnel providing the service, that is actually incurred by the agency or attributable to the agency for the programming, clerical, and supervisory assistance required, or both.The court ordered defendants to produce the requested records, but only if plaintiff paid the special service charge. Plaintiff did not pay the special service charge and, consequently, the records were not produced. The court denied plaintiff's request for attorney's fees, finding that defendants made a good-faith effort to comply with the May 2014 OPRA request. The court memorialized its decision in an order entered on October 10, 2014. This appeal followed.
On appeal, plaintiff does not challenge its obligation to pay a special service charge pursuant to N.J.S.A. 47:1A-5(d) or the amount ordered. Plaintiff only contends that the court erred in applying a good-faith test rather than the prevailing party test in denying its request for attorney's fees. Plaintiff argues it was entitled to attorney's fees as the prevailing party under the catalyst theory because: (1) defendants produced the August 2014 AAR Report after litigation commenced and without an order or judgment compelling production; (2) there was a factual nexus between the lawsuit and the production of the August 2014 AAR Report; and (3) there was a basis in law for the relief achieved because the August 2014 AAR Report was a public record subject to OPRA. Although we agree it was error to apply the good-faith test, we nonetheless conclude that plaintiff was not the prevailing party under the catalyst theory.
We generally review the grant or denial of attorney's fees under an abuse-of-discretion standard. Packard-Bamberger & Co., Inc. v. Collier, 167 N.J. 427, 443-44 (2001). However, the application of OPRA is a legal question subject to our de novo review. Bozzi v. City of Atl. City, 434 N.J. Super. 326, 331 (App. Div. 2014). Thus, we review the denial of attorney's fees to plaintiff de novo.
OPRA provides that if a requestor is denied access to non-exempt records, the requestor may file an action in the Superior Court or file a complaint with the GRC. N.J.S.A. 47:1A-6, -7. If access has been improperly denied, the court or GRC shall order access. Ibid. "A requestor who prevails in any proceeding shall be entitled to a reasonable attorney's fee." Ibid. "A plaintiff may qualify as a prevailing party, and thereby be entitled to a fee award, by taking legal action that provides a 'catalyst' to induce a defendant's compliance with the law." Smith v. Hudson Cty. Register, 422 N.J. Super. 387, 394 (App. Div. 2011). "The statute does not restrict fee-shifting to instances of willful violations." Id. at 398. Thus, a requestor may be awarded attorney's fees even if the OPRA request is fulfilled pursuant to a settlement, so long as the relief resulted from the litigation. Teeters v. Div. of Youth & Family Servs., 387 N.J. Super. 423, 433-34 (App. Div. 2006), certif. denied, 189 N.J. 426 (2007).
To prevail under the catalyst theory, absent a judgment or enforceable consent decree, a requestor must "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.'" Mason v. City of Hoboken, 196 N.J. 51, 76 (2008) (quoting Singer v. State, 95 N.J. 487, 494, cert. denied, 469 U.S. 832, 105 S. Ct. 121, 83 L. Ed. 2d 64 (1984)). "'The first prong requires that the litigant seeking fees establish that the lawsuit . . . was a "necessary and important" factor in obtaining the relief.'" Smith, supra, 422 N.J. Super. at 394 (quoting Teeters, supra, 387 N.J. Super. at 431). "The party does not need to obtain all relief sought, but there must be a resolution that 'affect[s] the defendant's behavior towards the prevailing plaintiff.'" Ibid. (alteration in original) (quoting Teeters, supra, 387 N.J. Super. at 432). The Court explained the second prong as follows:
Even if plaintiffs can establish that their suit was causally related to the defendants' actions which improved their condition, this is only half of their battle. The test they must pass is legal as well as factual. If it has been judicially determined that defendants' conduct, however beneficial it may be to plaintiffs' interests, is not required by law, then defendants must be held to have acted gratuitously and plaintiffs have not prevailed in a legal sense.
[Singer, supra, 95 N.J. at 494-95 (emphasis added) (quoting Nadeau v. Helgemoe, 581 F.2d 275, 284 (1st Cir. 1978)).]
Plaintiff failed to establish a factual causal nexus between the litigation and the relief ultimately achieved -- the August 2014 AAR Report. Plaintiff rejected the August 2014 AAR Report as not fully compliant with the May 2014 OPRA request and continued the litigation. More importantly, the August 2014 AAR Report was not the relief plaintiff requested in the May 2014 OPRA request. Rather, plaintiff requested data in a specific electronic format, which, undisputedly, was a format United Water did not routinely use, develop or maintain, and which required a substantial amount of manipulation or programming of information to develop. Plaintiff was only entitled to the data upon payment of the special service charge, which plaintiff never paid. Accordingly, the litigation did not result in the relief plaintiff requested in the May 2014 OPRA request.
In addition, plaintiff's receipt of the August 2014 AAR Report had no basis in law because the May 2014 OPRA request was invalid. Further, defendants had no obligation under the law to provide the August 2014 AAR Report in response to the May 2014 OPRA request.
Contrary to plaintiff's argument, defendants did not waive their right to challenge the validity of the May 2014 OPRA request. See Spectraserv, Inc. v. Middlesex Cty. Utils. Auth., 416 N.J. Super. 565, 582 (App. Div. 2010) (rejecting the "waiver argument as unsound and without merit"). --------
"[A]gencies are only obligated to disclose identifiable government records." Burke v. Brandes, 429 N.J. Super. 169, 174 (App. Div. 2012). "A proper request 'must identify with reasonable clarity those documents that are desired.'" Ibid. (quoting Bent v. Twp. of Stafford Police Dep't, 381 N.J. Super. 30, 37 (App. Div. 2005)). "'Wholesale requests for general information to be analyzed, collated and compiled' by the agency are outside OPRA's scope." Ibid. (quoting MAG Entm't, LLC v. Div. of Alcoholic Beverage Control, 375 N.J. Super. 534, 549 (App. Div. 2005)). "OPRA does not countenance open-ended searches of an agency's files" and is not "intended as a research tool litigants may use to force government officials to identify and siphon useful information." MAG Entm't, supra, 375 N.J. Super. at 546, 549. As such, requests for "any and all documents" on a specific subject are considered "overly broad." Spectraserv, supra, 416 N.J. Super. at 578. A custodian may reject a request that is overly broad or vague so as to prevent identification of the records sought. N.J. Builders Ass'n v. N.J. Council on Affordable Hous., 390 N.J. Super. 166, 181-82 (App. Div.), certif. denied, 190 N.J. 394 (2007).
In addition, OPRA permits requests for documents already created or on file with a public entity. N.J.S.A. 47:1A-1.1. OPRA does not require a public agency to create documents not already in existence. Sussex Commons Assocs., LLC v. Rutgers, 210 N.J. 531, 544 (2012). Moreover, "if a request 'would substantially disrupt agency operations, the custodian may deny access to the record after attempting to reach a reasonable solution with the requestor that accommodates the interests of the requestor and the agency.'" Burke, supra, 429 N.J. Super. at 174 (quoting N.J.S.A. 47:1A-5(g)).
The May 2014 OPRA request was overly broad, as it requested all billing information for every property in Jersey City serviced by United Water and provided no beginning and end date. The request also improperly required defendants to compile data not readily available and provide it in a specific electronic format United Water did not routinely use, develop or maintain, and which required a substantial amount of manipulation or programming of information to develop. In addition, the methods the parties used for many years -- the PDF format, on-site access, and a United Water representative -- were still available, but plaintiff rejected these methods. Instead, the May 2014 OPRA request placed a heavy burden on defendants to comply and could be characterized as "[a] [w]holesale request[] for general information," an "open-ended search," and a search that would require defendants to "identify and siphon useful information." MAG Entm't, supra, 375 N.J. Super. at 549, 546. Plaintiff's specified electronic format required defendants to "manually search through all of the . . . files, analyze, compile, and collate the information contained therein," and once the cases were identified, "the records custodian would then be required to evaluate, sort out, and determine the documents to be produced." Id. at 549. The intensity of this endeavor is what justified the imposition of the special service charge.
Accordingly, the May 2014 OPRA request was not proper. In cases where the original request was deemed not proper, we have expressly found the requestor to not be a prevailing party. See N.J. Builders Ass'n, supra, 390 N.J. Super. at 178-79. Even assuming the May 2014 OPRA request was proper, defendants' numerous attempts at accommodation cannot be said to be a "denial of access," but instead a "reasonable solution[] that involve[d] brief delay." Spectraserv, supra, 416 N.J. Super. at 582. Because there was no denial of access, but rather, a partial response and attempts at accommodation, plaintiff cannot be considered a prevailing party under the catalyst theory.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION