The state Supreme Court ruled last week on two lawsuits pertaining to a private citizen’s access to government documents, which also served to set forth some guidelines for these cases in the future.
The appeal of a case by Hoboken resident Beth Mason, who is now a councilwoman but filed the suit when she was still just a citizen, was supported by six of the seven members of the court. The seventh judge did not participate.
The decision set a strict 45-day filing period for any lawsuit pertaining to public access to government records.
The decision stemmed from two suits filed by Beth Mason back in 2004, when she believed her right to get Hoboken records was denied on various occasions.
City Attorney Steven Kleinman said last week in an interview, “Obviously, this is a very satisfying outcome to a [four]-year-old lawsuit.”
Mason has since filed several other suits about public records, some of which she won, and some of which are being appealed.
Kleinman said last week, “Ten separate judges in three separate courts looked at this case, and everyone found in favor of Hoboken.”
He called it a “very well-reasoned common sense decision” and said it will “impact every single OPRA (Open Public Records Act) request in the state of New Jersey.”
But Mason has said that the city has a pattern of trying to hinder public access to documents.
In this particular suit, Mason was joined by the American Civil Liberties Union, the Libertarian Party, and the New Jersey Press Association.
The New Jersey Attorney General’s Office joined on the city’s behalf.
The first suit
The first lawsuit pertained to Mason’s request for the city’s general ledgers, or their checkbooks, from 2003 and 2004.
The city responded to Mason’s request after nine business days (two more than allowed by law) and told her the ledgers were, according to the court decision, “in the process of being corrected” and that they would be available in the coming weeks.
The court made allowances for the delay, particularly because Bob Drasheff, then-city business administrator, was tending to his critically ill mother at the time, which was made known to Mason by the city.
Mason then responded by asking for the un-“corrected” versions of the ledgers, but never got them.
According to court records, it was only during a trial court teleconference with the city, that Mason was told the ledgers were available for pick-up.
Last week, Mason claimed that she still has not received the original ledgers, just the “corrected” ones.
Mason lost the case at the trial and appellate court levels, largely because of lateness issues. So she took it to the state Supreme Court.
She later explained that even if she was filing the complaints late, it was partly because she was led to believe she would be getting the documents.
The second suit
The Supreme Court ruled on the first and second lawsuits at the same time.
v The second lawsuit covered 15 apparent instances of Mason attempting to access records or information.
Of the 15 counts, 13 of them were found by the court to have been filed after the 45-day statute of limitations.
The court upheld the state’s 45-day statute of limitations in their ruling.
But Mason argued last week that the 45-day deadline puts the “burden on the citizens” to respond to inaction, even if the information is said to be forthcoming.
She believes the court should have taken into account “extenuating circumstances” for the deadline, just as they do for municipalities late in providing the information sought.
Better late than never?
The 14th count of the second lawsuit pertained to a paper copy of the city budget given to Mason less than one hour after her request, but – according to the lawsuit – not made available electronically until three weeks after her request.
The court found that the city had already been making an attempt to post it online before Mason’s lawsuit, although it still wasn’t ready for three weeks after her request.
On the last count, Mason had asked to review all OPRA requests submitted to the city from 2002 through 2004. Two days later, the city responded to say that she could view the files once they prepared them.
The court found the delay to be understandable. In addition, they said that the city started to make the files available to Mason less than a month after her request.
But the complete files were not made available until Sept. 22, 2004, two months after the original request on July 20, and Mason decided to file a complaint.
The court found that the city made the documents available regardless of the lawsuit, and therefore, Mason was again not entitled to attorney’s fees.
‘Catalyst theory’ precedent
The payment of legal fees in these cases has been a point of contention by both plaintiffs and defendants for some time.
The court, after weighing several different interpretations, agreed on an interpretation called the “catalyst theory.”
The theory says that in order to win legal fees, a plaintiff, in this case Mason, must have caused the records to be produced – being the catalyst – by filing the lawsuit, which also must have a basis in law.
Mason’s suit was not found to be the catalyst for her ultimately getting the information. In other words, the city was in the process of delivering it to her before the suit was filed, according to the court.
Plaintiffs are not awarded attorney’s fees if the information sought was in the process of being produced regardless of the lawsuit, even if it was provided late or after the lawsuit was filed, as was the case in parts of these lawsuits.
The court did not decide the merits of some of the counts, because they were late anyway.
Mason and city respond
However, last week, Mason’s team called the decision of the court to adopt the “catalyst theory” a win for her and anyone seeking legal fees after filing similar suits.
In the past, the plaintiff in an open records case had to have a favorable court decision in order to collect legal fees. So municipalities who settled out of court could avoid paying attorneys’ fees.
This decision now allows plaintiffs who settle out of court to still get a ruling saying they were a “catalyst” in getting the records, and win attorneys’ fees. However, their case still must have a basis in law.
Kleinman said last week that Mason was “rightly walking away with nothing” in the case.
“Ten separate judges in three separate courts looked at this case and everyone found in favor of Hoboken.”
– Steven Kleinman
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To the top
Mason’s appeals of the lower courts’ decisions pushed the cases in front of the state Supreme Court, which in the past rarely heard cases of this nature.
Mason thought it was necessary to continue the appeal process in order to, at the very least, get some clarification on the various facets of OPRA cases.
But Kleinman asked why Mason took it to the higher court if she missed the deadlines and the information had been provided.
He said that in his opinion, the case was more about publicity than justice for Mason. Mason is widely rumored to be a candidate for mayor next May.
According to Kleinman the case could have been taken to the Government Records Council (GRC), a body that arbitrates records access cases like these, for a “fraction of the costs at a fraction of the time.”
Mason said that at the time the lawsuit was filed, the courts were the “best and quickest means” to a decision, not the GRC.
For questions or comments on this story, e-mail tcarroll@hudsonreporter.com.