UNDERWOOD PROPERTIES LLC v. CITY OF HACKENSACK

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(NOTE: The status of this decision is Published.)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0044-20

UNDERWOOD PROPERTIES,
LLC,

Plaintiff-Appellant/
Cross-Respondent,

v. APPROVED FOR PUBLICATION

January 24, 2022
CITY OF HACKENSACK and
DEBORAH KARLSSON, in APPELLATE DIVISION
her professional capacity as
Records Custodian for the City
of Hackensack,

Defendants-Respondents/
Cross-Appellants.

Argued January 6, 2022 – Decided January 24, 2022

Before Judges Alvarez, Mawla, and Mitterhoff.

On appeal from the Superior Court of New Jersey, Law
Division, Bergen County, Docket No. L-7980-19.

Leonard E. Seaman argued the cause for
appellant/cross-respondent (Law Offices of Richard
Malagiere, PC, attorneys; Richard Malagiere, of
counsel; Leonard E. Seaman, of counsel and on the
briefs).

Steven W. Kleinman argued the cause for
respondents/cross-appellants (Cleary, Giacobbe,
Alfieri, Jacobs, LLC, attorneys; Steven W. Kleinman,
of counsel and on the briefs).

The opinion of the court was delivered by

MAWLA, J.A.D.

Plaintiff Underwood Properties, LLC appeals from a July 24, 2020 order,

denying its application under the Open Public Records Act (OPRA), N.J.S.A.

47:1A-1 to -13, to compel defendants City of Hackensack and its records

custodian Deborah Karlsson to produce privileged documents, and awarding

plaintiff counsel fees. Defendants cross-appeal and also challenge the counsel

fee award. We affirm in all respects.

The dispute underlying the OPRA litigation regards the Hackensack

Planning Board's zoning determinations and ordinances adopted in the City's

redevelopment plan, which are the subject of two separate lawsuits involving

these parties. On August 12, 2019, plaintiff's counsel submitted two OPRA

requests "from Richard Malagiere." The first sought "[a]ny and all [emails]

relating to official business of the City of Hackensack, such as to constitute a

government record, to or from [the deputy mayor's personal email address] from

November 2017 through present[.]" The second sought "[t]ext messages,

[emails], and any other . . . correspondence" involving nine city officials and the

deputy mayor, about a particular planning board application and subsequent

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resolution and ordinance for a two-year time period. Karlsson denied the first,

calling it invalid because it failed "to identify the content and/or subject of the"

emails and would require the City to undertake an open-ended search. She

requested an extension to respond to the second. On August 28, 2019, plaintiff's

counsel submitted a third request seeking communications to and from the

deputy mayor's personal email account, narrowing the search terms to specific

words.

Karlsson provided seventeen pages of records in response to the second

request and thirteen pages for the third. She also submitted a Vaughn index1

explaining why certain records were withheld or redacted as privileged.

However, Karlsson declined to produce records responsive to seven search terms

generating over 400 emails, asserting "it is the City's position that any of the

above search terms producing more than 400 [emails] are too general for the

City to review" and would constitute an open-ended records search.

1
"[A] Vaughn index . . . is a detailed affidavit [submitted by the withholding
government entity] correlating the withheld documents with the claimed
exemptions. To pass muster, a Vaughn index must consist of one comprehensive
document, adequately describe each withheld document or redaction, state the
exemption claimed, and explain why each exemption applies." Cozen O'Connor
v. U.S. Dep't of Treasury, 570 F. Supp. 2d 749, 765 (E.D. Pa. 2008).
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Plaintiff's counsel filed a complaint in lieu of prerogative writs and an

order to show cause alleging defendants violated OPRA by: "(1) denying access

to records for search terms generating over 400 responsive [emails], and (2)

improperly asserting privileges and exemptions to withhold four categories of

[emails] responsive to the 'approved' search terms, when those [emails] should

have been provided along with the rest of [d]efendants' partial production . . . ."

Plaintiff sought in camera review of the privileged documents. Defendants

opposed the emergent application, arguing plaintiff's counsel lacked standing to

file the OPRA complaint, could not be awarded attorney's fees, and the requests

were properly denied as overly broad.

On January 9, 2020, Judge Bonnie J. Mizdol ordered defendants to

produce certain documents directly to plaintiff and to provide the privileged

documents—namely, emails between the deputy mayor and four city officials—

to the court. On February 13, 2020, following her in camera review, the judge

ordered defendant to produce three of the four categories of emails, but found

one category "wholly exempted from production under the deliberative process

and attorney-client privilege[.]" Plaintiff moved for $14,560.20 in counsel fees,

supported by an affidavit of services pursuant to N.J.S.A. 47:1A-6 and RPC

1.5(a).

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Defendants moved for reconsideration of the order requiring production

of the privileged materials. The judge granted reconsideration and reclassified

all categories of emails she reviewed in camera as privileged. She denied

plaintiff's request for counsel fees associated with the documents she reviewed

in camera.

In May 2020, plaintiff moved to compel production of the documents

ordered to be produced in January, and again sought counsel fees. Defendants

withheld a portion of the documents on grounds of privilege. Additionally, they

argued plaintiff lacked standing to seek counsel fees because the OPRA request

was submitted in the name of Malagiere, plaintiff's attorney. The judge ordered

defendants to produce the disputed records for in camera review.

Thereafter, the judge entered the July order, which is the subject of these

appeals, accompanied by a detailed forty-two-page written opinion. She

concluded nine of the ten documents withheld by defendants were protected

from disclosure by the deliberative process privilege and beyond the scope of

plaintiff's request; the tenth document was protected by the attorney-client

privilege.

Acknowledging that OPRA standing is not a "straightforward" issue, the

judge noted N.J.S.A. 47:1A-6 states: "'A person who is denied access to a

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government record by the custodian of the record, at the option of the requestor,

may institute a proceeding to challenge the custodian's decision,' and that '[t]he

right to institute any proceeding under this section shall be solely that of the

requestor.'" (alteration in original). However, she concluded plaintiff had

standing because plaintiff's counsel "has the power to act under implied

authority to handle matters on behalf of his client as long as he is given consent."

The judge also noted "the Government Records Council has addressed this

particular situation by way of its Denial of Access complaint form. That form

specifically states: 'If you are an attorney who requested records and are filing

this complaint on behalf of a client, please state the client's name.'" She

concluded "it is more than apparent here that an attorney may request documents

on behalf of a client and subsequently file suit under the client's name." She

concluded plaintiff could seek fees because plaintiff's counsel filed the OPRA

request on behalf of his client and within the scope of his representation.

The judge observed her January 2020 order

clarified the records that [p]laintiff was searching for,
it also narrowed the scope of the original request . . . .
Despite this narrowing, [d]efendants turned over 831
pages of records that had not been previously produced
pursuant to the August 28 request. Moreover, with
respect to the original request, the court finds it facially
apparent that [d]efendants' imposed limit of 400
responsive hits was arbitrary and capricious, especially

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in light of the fact that [one search term] produced 401
responsive records.

Thus, "the 831 pages of records would not have been effected[] but for

[p]laintiff's filing of suit in this case . . . and that [p]laintiff's success is limited

here to only the records that [d]efendants initially produced . . . pursuant to the

court's January . . . order."

The judge performed a lodestar analysis and addressed each RPC 1.5(a)

factor. At the outset, she noted plaintiff's counsel billed in quarter hour

increments and modified it to "the more widely-accepted six-minute billing

increment." The judge analyzed and reduced certain billing entries she found

excessive and concluded the remaining factors either favored an award of fees

or did not militate against it. Hence, "only the portion of attorneys' fees and

costs attributable to litigation of the original [order to show cause]" were

compensable because "no subsequent litigation has resulted in further

production of documents" and the purpose of the OPRA request was not

vindicated.

The judge found plaintiff's challenge to the 346-page Vaughn index

caused defendants to produce thirty-five pages and noted each page of the index

"addresses three entries on average, [and] the court extrapolates that

approximately 3,633 pages, representing approximately 1,038 documents [346

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x 3=1,038], were withheld from production." Therefore, she concluded "less

than [twenty percent] of the documents originally sought were actually

produced." The judge awarded plaintiff $3,750, or roughly one-half of the

lodestar amount.

Our review of a trial court's interpretation of OPRA is de novo. See

O'Boyle v. Borough of Longport, 426 N.J. Super. 1, 8 (App. Div. 2012).

"Findings of fact, however, are reviewed deferentially." Ibid. (citing Rova

Farms Resort, Inc. v. Invs. Ins. Co., 65 N.J. 474, 484 (1974)).

"[A] reviewing court will disturb a trial court's award of counsel fees 'only

on the rarest of occasions, and then only because of a clear abuse of discretion.'"

Litton Indus., Inc. v. IMO Indus., Inc., 200 N.J. 372, 386 (2009) (quoting

Packard-Bamberger & Co. v. Collier, 167 N.J. 427, 444 (2001)). This is because

a "trial court [is] in the best position to weigh the equities and arguments of the

parties . . . ." Packard-Bamberger & Co., 167 N.J. at 447. We reverse only if

the award is "made without a rational explanation, inexplicably departed from

established policies, or rested on an impermissible basis." Flagg v. Essex Cnty.

Prosecutor, 171 N.J. 561, 571 (2002) (quoting Achacoso-Sanchez v. Immigr. &

Naturalization Serv., 779 F.2d 1260, 1265 (7th Cir. 1985)).

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II.

On appeal, plaintiff argues the judge erred by not releasing an email on

grounds of attorney-client privilege. Plaintiff contends defendants waived the

privilege by including a third party, the City's financial advisor, on the email.

Plaintiff also challenges the judge's calculation of counsel fees, alleging that she

considered "irrelevant and inappropriate factors" and should not have relied on

the number of documents produced to reduce the lodestar because many of

plaintiff's expenses were litigation costs rather than time billed. Plaintiff also

asserts the judge incorrectly concluded OPRA was not vindicated, yet the

lawsuit yielded additional documents.

On cross-appeal, defendants argue the judge should not have awarded

counsel fees because plaintiff did not prevail or demonstrate the documents were

released because of the lawsuit. Defendants also repeat their claim plaintiff did

not have standing to bring suit for an OPRA request it did not file. Defendants

urge us to consider "establish[ing] the standard that if an attorney is filing an

OPRA request on behalf of a client, it must clearly disclose that fact to the

custodian of records, or if the response proceeds to litigation the attorney must

be deemed the 'requestor.'"

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Standing

We affirm Judge Mizdol's ruling on standing for the reasons expressed in

her opinion. N.J.S.A. 47:1A-6 states:

A person who is denied access to a government record
by the custodian of the record, at the option of the
requestor, may:

institute a proceeding to challenge the custodian's
decision by filing an action in Superior Court . . . .

....

The right to institute any proceeding under this section
shall be solely that of the requestor.

Plaintiff's counsel filed the OPRA request on behalf of his client.

Defendants' claim counsel did not have authority to file the OPRA requests or

the subsequent suit after defendants denied the requests for records is

unsupported by the record. Counsel sought the records to further the underlying

litigation involving the same parties and counsel; therefore, counsel's role in

making the request was no mystery. This argument lacks merit. See R. 2:11-

3(e)(1)(E).

Furthermore, "OPRA is to be construed broadly to achieve the

Legislature's over-arching goal of making public records freely available[.]"

Scheeler v. Atl. Cnty. Mun. Joint Ins. Fund, 454 N.J. Super. 621, 625 (App. Div.

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2018). Moreover, "New Jersey courts always have employed 'liberal rules of

standing."' CFG Health Sys., LLC v. Cnty. of Hudson, 413 N.J. Super. 306, 314

(App. Div. 2010) (quoting Jen Elec., Inc. v. Cnty. of Essex, 197 N.J. 627, 645

(2009)). For these reasons, we decline to adopt defendants' literal reading of

N.J.S.A. 47:1A-6.

Attorney-Client Privilege

OPRA declares it is "the public policy of this State that: government

records shall be readily accessible for inspection . . . by the citizens of this State,

with certain exceptions, for the protection of the public interest[.]" N.J.S.A.

47:1A-1. One exception is the attorney-client privilege. N.J.S.A. 47:1A-1.1.

In pertinent part, the attorney-client privilege, provides "communications

between a lawyer and his client in the course of that relationship and in

professional confidence, are privileged. . . ." N.J.S.A. 2A:84A-20(1); N.J.R.E.

504(1).

The privilege "does not attach to a communication knowingly made within

the hearing of any person whose presence nullifies the privilege. . . . [T]he

privilege protects only those communications expected or intended to be

confidential." O'Boyle v. Borough of Longport, 218 N.J. 168, 185 (2014) (citing

N.J.R.E. 504(3). The privilege is not limited to legal advice but extends to

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"consultations with third parties whose presence and advice are necessary to the

legal representation." Ibid.

We have explained the common interest exception and held a

communication with a third party may still be protected under the attorney client

privilege "if '(1) the disclosure is made due to actual or anticipated litigation;

(2) for the purposes of furthering a common interest; and (3) the disclosure is

made in a manner not inconsistent with maintaining confidentiality against

adverse parties.'" Laporta v. Gloucester Cnty. Bd. of Chosen Freeholders, 340 N.J. Super. 254, 262 (App. Div. 2001) (quoting Holland v. Island Creek Corp.,

885 F. Supp. 4, 6 (D.D.C. 1995); see also In re Bevill, Bresler & Schulman, 805 F.2d 120, 126 (3d Cir. 1986)).

We consider the purpose of asserting the privilege when determining

whether a specific communication between a client and an attorney is protected.

In re Custodian of Recs., Crim. Div. Manager, 420 N.J. Super. 182, 187 (App.

Div. 2011). The privilege should be strictly construed. Paff v. Div. of L., 412 N.J. Super. 140, 150-51 (App. Div. 2010) (citing In re Selser, 15 N.J. 393, 405-

06 (1954)).

Judge Mizdol found "the Vaughn index . . . indicated . . . a single email

by [the City's attorney] to Hackensack officials, representatives, or agents which

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was made in the course of [counsel's] legal representation of the city. . . . The

court's in camera review confirms this explanation." She concluded the

attorney-client privilege applied because "(1) the conversation was made with

the purpose of seeking or rendering legal advice, (2) [the financial advisor] was

copied on the email in his capacity as the City's financial planner on a matter

involving both legal and financial matters."

We affirm for the reasons expressed by the judge and reject plaintiff's

argument that applying the common interest test would lead to a different result.

The email communicated legal advice about the underlying planning board and

zoning ordinance litigation to city officials as a group and included the financial

planner in his official capacity. There is no evidence the communication was

intended to be public—the City's counsel and the financial planner filed

certifications to this effect.

Counsel Fees

We reject the parties' challenges to the counsel fee determination. OPRA

allows a prevailing party to receive "reasonable attorney's fee[s]." N.J.S.A.

47:1A-6 (emphasis added). "[T]he phrase 'prevailing party' is a legal term of art

that refers to a 'party in whose favor a judgment is rendered.'" Mason v. City of

Hoboken, 196 N.J. 51, 72 (2008) (quoting Buckhannon Bd. & Care Home, Inc.

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v. W. Va. Dep't of Health and Hum. Res., 532 U.S. 598, 603 (2001)). "A

plaintiff is considered a prevailing party 'when the actual relief on the merits of

[the] claim materially alters the relationship between the parties by modifying

the defendant's behavior in a way that directly benefits the plaintiff.'" Teeters

v. Div. of Youth and Fam. Servs., 387 N.J. Super. 423, 432 (App. Div. 2006)

(alteration in original) (quoting Warrington v. Vill. Supermarket, Inc., 328 N.J.

Super. 410, 420 (App. Div. 2000)).

In Mason, the Court held "requestors are entitled to attorney's fees under

OPRA . . . when they can 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, 196 N.J. at 76

(quoting Singer v. State, 95 N.J. 487, 494-95 (1984)). "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.'" Smith v. Hudson Cnty.

Reg., 422 N.J. Super. 387, 394 (App. Div. 2011) (alteration in original) (quoting

Teeters, 387 N.J. Super. at 432). Such action includes a "change (voluntary or

otherwise) in the custodian's conduct." Spectraserv, Inc. v. Middlesex Cnty.

Utils. Auth., 416 N.J. Super. 565, 583 (App. Div. 2010) (citing Teeters, 387 N.J.

Super. at 430-31).

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Here, the judge conducted a fact-sensitive inquiry, demonstrating plaintiff

was the prevailing party under the catalyst theory and was entitled to an award.

See Mason, 196 N.J. at 79. Plaintiff showed a causal nexus between the

litigation and results achieved because the suit caused defendants to release an

additional 831 documents. Moreover, plaintiff's suit modified defendants'

behavior to plaintiff's benefit. See Teeters, 387 N.J. Super. at 432.

Defendants' claims they would have responded to the revised OPRA

request without court intervention are unsupported by the record. As the judge

commented, defendants acted arbitrarily in capping the search hits to 400 per

term. The litigation and the court's order ultimately produced the information

sought in the OPRA request.

The judge's calculation of the lodestar and final fee amount was not an

abuse of discretion. In determining the fee award pursuant to fee-shifting

provisions, courts must determine the "lodestar" amount, which is "the number

of hours reasonably expended on the litigation multiplied by a reasonable hourly

rate." Litton Indus., 200 N.J. at 406 (quoting R.M. v. Sup. Ct. of N.J., 190 N.J.
1, 10 (2007)). The calculation includes a careful evaluation of the specific

hourly rates supporting the fee application. Rendine v. Pantzer, 141 N.J. 292,

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335 (1995). To determine the reasonableness of a fee, the trial court must weigh

the RPC 1.5(a) factors.

Our Supreme Court has stated: "The trial court should conduct a

qualitative analysis that weighs such factors as the number of documents

received versus the number of documents requested, and whether the purpose of

the OPRA was vindicated by litigation." New Jerseyans for a Death Penalty

Moratorium v. N.J. Dep't of Corr., 185 N.J. 137, 155 (2005). Vindication may

mean "acquiring that one smoking gun record hidden amongst hundreds of pages

or . . . it may be the absence of any records." Ibid. (internal quotations omitted).

The court should not rely "on percentages of documents obtained to determine

whether a reduction of the lodestar is appropriate in OPRA cases." Id. at 154.

A fee award "can be problematic" when a plaintiff obtains only partial

success. Id. at 153. As such, "courts [can] 'reduce the lodestar fee if the level

of success achieved in the litigation is limited as compared to the relief sought.'"

Id. at 154 (quoting Rendine, 141 N.J. at 336). "[A] reduction may be appropriate

if 'the hours expended, taking into account the damages prospectively

recoverable, the interests to be vindicated, and the underlying statutory

objectives, exceed those that competent counsel reasonably would have

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expended.'" Walker v. Guiffre, 209 N.J. 124, 132 (2012) (quoting Rendine, 141 N.J. at 336)).

We disagree with plaintiff's argument the judge relied on improper factors

in calculating the fee award. The judge conducted a careful review of the time

and costs billed by counsel and explained why she reduced the sums sought .

The judge's conclusion plaintiff did not vindicate OPRA was not fatal to

awarding fees. The purpose of OPRA "is to maximize public knowledge about

public affairs in order to ensure an informed citizenry and to minimize the evils

inherent in a secluded process." Times of Trenton Publ'g Corp. v. Lafayette

Yard Cmty. Dev. Corp., 183 N.J. 519, 535 (2005) (quoting Asbury Park Press

v. Ocean Cnty. Prosecutor's Off., 374 N.J. Super. 312, 329 (Law Div. 2004)).

The fee award reflects the partial success achieved by plaintiff, which is

compensable. New Jerseyans, 185 N.J. at 154.

The judge's calculation of the documents she concluded were improperly

withheld by defendants did not abrogate the Supreme Court's admonition that

trial courts should not rely on a percentage calculation of the record yielded by

the OPRA litigation to calculate fees. A thorough review of the record shows

the judge performed a qualitative analysis of plaintiff's counsel's billing when

she reduced the lodestar figure. Her findings were based on the substantial

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credible evidence in the record, thoroughly explained, and do not warrant our

intervention.

Affirmed.

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