The court awarded substantial attorneys fees to the plaintiff in a settlement with our municipality. Can such fees be ordered in the context of a settlement?

Yes. In 2006, the New Jersey Appellate Division ruled that a plaintiff who filed suit under the Open Public Records Act (OPRA) could qualify as a "prevailing party" for award of counsel fees under the Act even though the case had been settled. In Cynthia Teeters v. the Division of Youth and Family Services, 387 NJ. Super. 423 (App. Div. 2007) the Court supported its findings with case law demonstrating the State's history of liberal construction of fee shifting provisions as well as its encouragement of the settlement process.

The Court emphasized that in this case a satisfactory settlement was reached only because of the plaintiff's efforts in filing suit, and the plaintiff's actions were thus the "catalyst" that allowed her to prevail in obtaining the records she sought. The Court said: "Petitioner engaged in reasonable efforts to pursue her access rights to the records in question. She sought attorney assistance only after her self-filed complaints and personal efforts were unavailing. With that assistance, she achieved a favorable result that reflected an alteration of position and behavior on the Division's part."

The Court went on to point out that not awarding counsel fees in a settlement situation would put the plaintiff in a worse economic position than if she continued to litigate, and this result would not serve the state policy encouraging settlement of litigation. Furthermore, the history of OPRA indicated that a liberal application of its attorney fee provisions is appropriate. "It is also clear that the repeal of NJ.S.A. 47:1A-4, shortly after NJ.S.A. 47:1A-6 and -7 were adopted, was a renunciation of a narrower attorney's fees rule (i.e., embodying a prerequisite for a court order requiring disclosure, a limitation to $500, and a discretionary authority in the trial court) in favor of the broader, mandatory standard of entitlement based on the sole test of ‘prevail[ing] in any proceeding,' and subject to a rule of reasonableness with no expressed monetary limitation."

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1. I have heard that the Attorney General has specifically exempted attorneys from the Open Public Records Act (OPRA). Is this true, and if so, why are they given special treatment?
2. Is email sent by a municipal employee subject to the Open Public Records Act? If so, what about email sent from his or her home computer?
3. Our municipality is being sued in state court over denial of a variance and using OPRA. Doesn’t he need to use the discovery rules to obtain material concerning litigation as parties have always done?
4. With Open Public Records Act (OPRA), what do I do with attorney-client privilege information, such as with detailed bills, when a request is sent?
5. Is the financial disclosure form that I file under the Local Public Ethics law as a municipal official subject to release under the Open Public Records Act (OPRA)?
6. I am a municipal clerk and a reporter for a regional newspaper recently called and asked for the salaries of all municipal employees. Do I have to release this information?
7. I requested a transcript of a municipality meeting and was told it takes weeks, don't they have to provide this to me within seven business days of my request under the law?
8. A resident who had a variance application denied has asked me for all “similar variance denials” by the municipality. How would I handle this?
9. Do requestors have to use the official Open Public Records Act (OPRA) form?
10. The court awarded substantial attorneys fees to the plaintiff in a settlement with our municipality. Can such fees be ordered in the context of a settlement?