News Flash


Posted on: June 23, 2023

Supreme Court: No Attorneys’ Fee for Common Law Claim for Records

The Supreme Court of New Jersey has issued a decision in a matter in which the League participated in as amicus, reaffirming that prevailing litigants in common law right of access cases are not entitled to attorneys’ fees.

In Gannett Satellite Information Network, L.L.C., d/b/a Asbury Park Press v. Township of Neptune, Gannett sought an award of attorneys’ fees arising from its common law right of access claim to Internal Affairs (IA) files pertaining to a former Neptune police officer. The news agency made a request for the records under both the Open Public Records Act (OPRA) and the common law right of access. The Township denied the request. Gannett then instituted legal action seeking to have the files released.

At the trial level the court dismissed Gannett’s OPRA claim but ordered the release of the records, with appropriate redactions, on the sole basis of the common law right of access. The trial court also granted a partial fee award to Gannett as a prevailing party. 

The case was appealed, and the Appellate Division affirmed the trial court’s determination that Gannett had no claim under OPRA but was entitled to a redacted version of the IA files under the common law. The Appellate Division also held that the Supreme Court had previously recognized in Mason v. City of Hoboken, 196 N.J. 51, 57(2008), a right to counsel fees in common law right of access cases under certain circumstances. On the facts presented, however, the Appellate Division reversed the trial court’s partial award for counsel fees. 

The matter was then appealed to the New Jersey Supreme Court, who granted certification solely on the issue of attorneys’ fees. 

The Court declined to adopt an exception to the American Rule for common law which provides that litigants must bear the cost of their own attorneys’ fees. The Court also clarified that, contrary to the Appellate Division’s holding, it did not determine in Mason whether the theory for attorney’s fees discussed in that case could apply to common law claims.

While the Court declined to find a general exception to the American Rule for common law regarding the award of attorneys’ fees, it did caution public entities that litigation costs and reasonable attorneys’ fees could still be awarded under other areas of the law. This would include raising a frivolous defense as provided by statute at N.J.S.A. 2A:15-59.1, or through Rule 1:4-8, which prescribes a procedure for an award of sanctions for frivolous pleadings. 

The Court explained that these provisions could be used to award attorneys’ fees should a records custodian unjustifiably reject a request for records that are clearly within a category of information that the Court has already deemed to be subject to disclosure under the common law right of access. 

The League would like to thank Carl Woodward, Esq., of Carella, Byrne, Cecchi, Olstein, Brody & Agnello, who represented the League, the New Jersey Institute of Local Government Attorneys, and the New Jersey School Boards Association in this matter.

You should review this decision with your municipal attorney for additional guidance on the decision. 

Contact: Frank Marshall, Esq., Associate General Counsel,, 609-695-3481, x137. 

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