Federal Court: NJ public records custodians can’t abdicate role at the behest of law enforcement agencies

The United States Court of Appeals for the Third Circuit issued a decision Wednesday in a public records case that is similar to Planet Princeton’s lawsuit against the town of Princeton and Mercer County. The precedent-setting decision is a victory for journalists and public records advocates.

In 2015, Pulitzer Prize-winning journalist Daniel Golden and publicist Tracy Locke were conducting research for Golden’s book, “Spy Schools: How the CIA, FBI, and Foreign Intelligence Secretly Exploit America’s Universities.” As part of the research, Golden and Locke request documents from public universities. Under New Jersey’s Open Public Records Act, they submitted three records requests to the New Jersey Institute of Technology. Many of NJIT’s documents that were responsive to the OPRA requests originated with the Federal Bureau of Investigation. The FBI directed NJIT to withhold most of the records. The school withheld the records, claiming that the documents were exempt from disclosure. A lawsuit followed.

After the lawsuit was filed, NJIT released thousands of pages of records it had formerly deemed exempt, but the trial court denied legal fees. The court denied the fee motion, holding that no nexus existed between the lawsuit and the eventual release of records. The court was persuaded by NJIT’s position that it had acted reasonably in following the FBI’s direction.

The journalists were represented by New Jersey lawyer Bruce Rosen, a top lawyer in first amendment media law, and the Reporters Committee for Freedom of the Press. On appeal, the 3rd Circuit Court of Appeals reversed the District Court’s decision, and held that fee-shifting is mandatory, but also said records custodians can’t fail to fulfill their duties. If records custodians let a third party dictate their responses to OPRA requests, they are still responsible for legal fees if it turns out the records are not actually exempt.

“We disagree with both the District Court’s conclusion and its misplaced focus on reasonableness,” reads the 3rd Circuit Court of Appeals decision. “Under the catalyst theory, as adopted by the Supreme Court of New Jersey, plaintiffs are entitled to attorneys’ fees if there exists ‘a factual causal nexus between [the] litigation and the relief ultimately achieved’ and if ‘the relief ultimately secured by plaintiffs had a basis in law’.”

Before Golden and Locke filed suit, NJIT had asserted that OPRA exemptions justified the withholding the majority of the requested records.

“Post-lawsuit, NJIT abandoned its reliance on those exemptions and produced most of the records. Golden and Locke’s lawsuit was the catalyst for the production of documents and thereby satisfied the Mason test,” reads the decision. “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 burden of allowing or denying access to the requested records. With that burden comes the attendant responsibility of paying attorneys’ fees to a prevailing plaintiff. We will therefore reverse and remand for the calculation of attorneys’ fees.”

Earlier this year, Planet Princeton filed public records requests with the town of Princeton and Mercer County regarding the former municipal landfill, the town’s solar arrays, and the sewer department facility on River Road in the northeastern section of Princeton near the border with Montgomery, Rocky Hill, and Kingston. The county and the municipality denied the records requests, citing the Mercer County Prosecutor’s investigation into illegal dumping at the sewer department. Both public agencies said they were ordered by the prosecutor not to release various records related to the sewer department. The municipality issued a blanket denial of Planet Princeton’s entire request, including records for the former landfill and solar arrays, even though the former landfill isn’t part of the investigation.

Planet Princeton, represented by lawyer Walter Luers, filed a lawsuit against the county and the municipality in early July. Mercer County Superior Court Judge Mary Jacobson will hear the case on Oct. 8.

About two weeks ago, the county and municipality began releasing some records related to the former landfill and the municipal convenience center. Records still have not been released related to the sewer department site, including basic public records like copies of contracts.