Township Council Meeting — Agenda

MRS L 000300-20 05/22/2020 Pg 3 of 16 Trans ID: LCV2020932426 Kelly Montes v. Town of Morristown and Margot Kaye, in her Official Capacity as Records Custodian for the Town of Morristown MRS-L-300-20 STATEMENT OF REASONS I. BACKGROUND AND PROCEDURAL HISTORY This matter comes before the Court on fees, filed on April 22, 2020, against Defendants, Town of Morristown and Margot Kaye, in her Official Capacity as Records Custodian for the Town of Morristown . The underlying contends that Defendants wrongly withheld body-worn camera footage of the traffic See Complaint. Plaintiff filed a Verified Complaint and Order to Show Cause on February 5, 2020. The Court granted the Order to Show Cause that same day and scheduled the initial return date on the Order to Show Cause for March 18, 2020. In a letter, dated March 4, 2020, defense counsel informed the Court that Defendants had already provided Plaintiff with the information sought in her OPRA request. On April 14, 2020, the Court denied Pl . The instant motion to pay counsel fees followed, on April 22, 2020. On April 29, 2020, Defendants filed opposition. On May 4, 2020, Plaintiff filed a reply. II. LEGAL ANALYSIS a. OPRA Standard any paper, written or printed book, document, drawing, map, plan, photograph, microfilm, data processed or image processed document, information stored or maintained electronically or by sound-recording or in a similar device, or any copy thereof, that has been made, maintained or kept on file in the course of his or its 3 Pa044

MRS L 000300-20 05/22/2020 Pg 4 of 16 Trans ID: LCV2020932426 official business by any officer, commission, agency or authority of the State or of any political subdivision thereof, including subordinate boards thereof, or that has been received in the course of his or its official business by any such officer, commission, agency, or authority of the State or of any political subdivision thereof, including subordinate boards thereof. [N.J.S.A. 47:1A-1.1]. OPRA applies to all records which are required by law to be made, maintained or kept on file by Daily Journal v. Police Dept. of City of Vineland, 351 N.J. Super. 110 (App. Div. 2002). If a document is a public record, the public has an absolute right to access it under OPRA, unless specific exceptions apply. Williams v. Atlantic City Public Schools, 329 N.J. Super. 308 (App. Div. 2000), certif. denied, 165 N.J. 488. Public agencies have the burden of demonstrating that disclosure of a document is inappropriate. N.J.S.A. 47:1A-6. Should a custodian fail to respond to an OPRA request within -5(i)(1). In any proceeding shall be entitled to a reasonable - Smith v. Hudson Cnty. Register, 422 N.J. Super. 387, 394 (App. Div. to a settlement, so long as the relief resulted from the litigation. Teeters v. Div. of Youth & Family Servs., 387 N.J. Super. 423, 433-34 (App. Div. 2006), certif. den., 189 N.J. 426 (2007). However, rt should conduct a qualitative analysis that weighs such factors as the number of documents received versus 4 Pa045

MRS L 000300-20 05/22/2020 Pg 5 of 16 Trans ID: LCV2020932426 the number of documents requested, and whether the purpose of the OPRA was vindicated by the New Jerseyans for a Death Penalty Morator , 185 N.J. 137, 155 (2005). Therefore, the court should reduce the lodestar amount if the plaintiff only achieves limited success as compared to the relief sought in the OPRA action. See Rendine, 141 N.J. at 336. A simple calculation of the percentages of documents obtained should not be used when determining how to reduce the lodestar; rather, the Court should consider a number of relevant of success. New Jerseyans, 185 N.J. at 154-55. b. Fee Agreements Generally, agreements between attorneys and clients regarding the attorney-client relationship including retainer agreements are enforceable, provided the agreements satisfy both the general requirements for contracts and the requirements of professional ethics. Cohen v. Radio-Electronics Officers Union, 146 N.J. 140, 155 (1996). The attorney bears the burden of establishing the fairness and reasonableness of the transaction. Id. A court should construe an agreement between an attorney and a client as a reasonable person in the circumstances of the Id. When contracting for a fee, therefore, attorneys must fulfill their fiduciary obligations to the client. This includes explaining the basis and rate of the fee at the outset and advising the client of potential conflicts, the scope of representation, and the implications of the agreement. Id. at 156. Rule of Professional Conduct 1.5(b) provides that, where an attorney has not regularly represented the client, the attorney must communicate, in writing, the basis or rate of the fee before or within a reasonable time after commencing the representation. The purpose of the writing requirement is to avoid misunderstandings and fraud. Starkey v. Estate of Nicolaysen, 172 N.J. 60, 69 (2002). 5 Pa046

MRS L 000300-20 05/22/2020 Pg 6 of 16 Trans ID: LCV2020932426 c. Determining Whether a Fee is Fair and Reasonable number of hours reasonably expende calculation known as the lodestar. Rendline v. Pantzer, 141 N.J. 292, 324 (1995). When determining whether the lodestar is fair and reasonable, a court should be guided by the Rules of Professional Conduct 1.5, which focuses on: (1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly; (2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer; (3) the fee customarily charged in the locality for similar legal services; (4) the amount involved and the results obtained; (5) the time limitations imposed by the client or by the circumstances; (6) the nature and length of the professional relationship with the client; (7) the experience, reputation, and the ability of the lawyer or lawyers performing the services; (8) whether the fee is fixed or contingent. [R.P.C. 1.5(a)]. In relevant part, R. 4:42- supported by an affidavit of services addressing the factors enumerated by RPC 1.5(a). The affidavit shall also include a recitation of other factors pertinent in the evaluation of services rendered, the amount of allowance applied for, and an itemization of disbursements for which R. 4:42-9(b). 6 Pa047

MRS L 000300-20 05/22/2020 Pg 7 of 16 Trans ID: LCV2020932426 . Mason v. City of Hoboken, 196 N.J. 51, 73 (2008). Plaintiffs are entitled to and the relief ultimately achieved; and (2) that the relief ultimately secured by plaintiffs had a basis Id. at 76 (internal quotation marks and citation omitted). d. Whether Plaintiff is the Prevailing Party The parties first disagree as to whether Plaintiff is the prevailing party. Here, Plaintiff filed an OPRA request on January 13, 2020, seeking to obtain both the dash camera and body-worn ootage of that occurred on January 6, 2020. See Ver. Compl., Exhs. A, B. On January 23, 2020, seven (7) business days after Plaintiff filed her request, Kaye emailed Plaintiff that she was in receipt of her OPRA request, and that the disc containing the footage was ready to be picked up. Id., Exh. B. However, later that same day, Kaye followed up to state that she had neglected to include a denial to your request for the body worn video denied pursuant to N.J.S.A. 47:1A-1.1, et seq. as a Id. Following further inquiries by Plaintiff as to how the criminal investigatory record exception applied to her request, o as to why this exception applied. Id. On February 5, 2020, Plaintiff filed a Verified Complaint and Order to Show Cause for relief under OPRA, which the Court granted that same day. Griffin Cert. ¶ 4. On February 6, 2020, defense counsel spoke with to say that he wished she had contacted him before filing the Verified Complaint because, due to a new unreported Appellate Division decision, Richard Rivera, LLC v. Twsp. of Bloomfield, 2020 N.J. Super. Unpub. LEXIS 55 (January 9, 2020), the Town would be providing BWC footage to all requestors. Pawar Cert. 7 Pa048

MRS L 000300-20 05/22/2020 Pg 8 of 16 Trans ID: LCV2020932426 ¶¶ 3, 5. footage to another requestor. Id. ¶ 4. be paid as the prevailing party, even though defense counsel advised that the change in policy was not the result of the instant lawsuit, but rather due to this recent decision. Id. In a follow-up email, wrote, in relevant part, that, [a]s I stated on the call, our position is that you should release the BWC video immediately as it does not pertain to a criminal maintained per the AG Directive, and therefore the criminal investigatory records exemption that the Clerk cited does not apply. Given that you stated that you do not object to the disclosure of the BWC, I believe that you should have the police department release it to Ms. Montes immediately and then we can limit our arguments to matter. I am also happy to try to settle those fees. [Griffin Cert. ¶ 5]. Id. ¶ 6. On February 7, 2020, Defendants were served with the Verified Complaint and, three (3) minutes later, the Morristown Police Department sent Plaintiff an email from Evidence.com, producing the BWC video. Id. ¶¶ 7-8; Exh. C. Plaintiff claims that she is the she received the requested BWC footage after she filed and served the OPRA complaint. See N.J.S.A. 47:1A-6. OPRA claim relating to the BWC footage. Although Plaintiff received the dash camera footage within seven (7) business days, her request for BWC footage was denied on January 23, 2020, when Kaye indicated that the Town could not produce the BWC footage based on the criminal 8 Pa049

MRS L 000300-20 05/22/2020 Pg 9 of 16 Trans ID: LCV2020932426 investigatory records exception under OPRA. In order to find a basis to deny access to records under the an investigation and that their release would be inimical to Courier News v. , 358 N.J. Super. 373, 380 (App. Div. 2003) (emphasis in original) (quoting , 354 N.J. Super. 146, 158 (Law Div. 2002)). In Courier News a 911 tape that was more than one year old, that was evidence in a matter that had yet to be adjudicated, fell within the criminal investigatory exception and to immediately release the record of the 911 call at issue to the plaintiff. The Court found that, [a]cceptance record associated with a criminal investigation until a trial has been completed and all potential appeals have been exhausted. Such a government records embodied in OPRA. [Id. at 381]. Here, although quasi-criminal case at issue may have been ongoing, there is no evidence to suggest that the BWC footage would not be subject to disclosure as contrary to the public interest. Unlike circumstances in Courier News, there is nothing here to suggest that there would be media coverage that could result in tainting the jury pool. See id. Requiring OPRA requestors to wait until the conclusion of a criminal or quasi-criminal matter in order to retrieve otherwise publicly available records is contrary to the legislative findings of See N.J.S.A. 47:1A-1. Therefore, the criminal investigatory records exception does not apply here. Indeed, defense counsel essentially conceded that such footage should be disclosed in the February 6, 2020 conversation l, when defense counsel stated that the Town had 9 Pa050

MRS L 000300-20 05/22/2020 Pg 10 of 16 Trans ID: LCV2020932426 recently changed its policy in response to the Rivera decision, and BWC to requestors, and had already released BWC footage to another OPRA requestor. Pawar Cert. ¶ 4. Therefore, because the BWC footage does not fall under the criminal investigatory records exception and Defendants apparently failed to abide by their own policy as to BWC footage, it was inappropriate for Defendants to deny Plaintiff footage. Next, the Court must determine whether the Verified Complaint was the catalyst for Defendants producing the BWC footage. The Court notes that municipalities may request additional time to produce records upon responding to a request because OPRA never states that the records themselves must be produced within the seven (7) business days ; OPRA only requires that the record custodian respond within this period of time. See N.J.S.A. 47:1A-5(i). Under statute of limitations, a plaintiff has forty-five (45) days to challenge the denial of a records request. See Mason, 196 N.J. at 68. Here, the Town responded within the seven (7) business day timeframe. However, the Town never informed Plaintiff that it may need more time to determine whether it could fulfill her request for BWC footage, whether due to a chang or for any other reason. Although, on February 6, 2020, after Plaintiff filed the Verified Complaint, d and would now be providing all BWC to requestors Pawar Cert. ¶ 4, Plaintiff had no way of knowing when, or if, the Town would make good on this promise and provide the BWC footage prior to the expiration of the statute of limitations. Plaintiff had to timely file her OPRA complaint within the forty-five (45) day statute of limitations or risk losing her ability to sue under the statute. Because Plaintiff filed her Verified Complaint prior to any communications from the Town that, notwithstanding 10 Pa051

MRS L 000300-20 05/22/2020 Pg 11 of 16 Trans ID: LCV2020932426 their denial on January 23, 2020, they would comply with her request, and because the Town produced the requested BWC footage a day after they were notified that a Verified Complaint had already been filed, and three minutes after they were served with the papers, the Court must conclude that [the] . Smith, 422 N.J. Super. at 394. The Verified Complaint can be considered the catalyst for compelling Defendants to produce the BWC footage. Accordingly, as the Verified Complaint was compliance with OPRA, Plaintiff is the prevailing party and entitled See N.J.S.A. 47:1A-6. e. s Motion for Reasonable Counsel Fees and Costs s counsel seeks to recover $8,200.00 in legal fees from Defendants, billed at the rate of $500.00 per hour over the course of 16.4 hours. Griffin Cert. ¶ further claims that there are $515.90 in litigation costs, which include filing fees for the initial Complaint, Order to Show Cause, and fee applications, as well as process server and UPS charges for delivering courtesy copies to the Court. Id. ¶ a total award in the amount of $8,715.90. Id. ¶ 37. Regarding the first factor of RPC 1.5(a), pertaining to the skills required and type, novelty and difficulty of the legal questions involved, the instant action involves an OPRA claim. The Court has already found that Plaintiff was the prevailing party in this matter, and therefore is in connection with legal services rendered. N.J.S.A. 47:1A-6. The Court also finds that instant lawsuit has a causal nexus with her receipt of the requested body camera footage. See Mason, 196 N.J. at 76. Plaintiff received the requested BWC footage on February 7, 2020, after Defendants had previously denied her request for footage, and after Plaintiff had filed her Verified Complaint and 11 Pa052

MRS L 000300-20 05/22/2020 Pg 12 of 16 Trans ID: LCV2020932426 Order to Show Cause to induce compliance, not knowing if or when Defendants would produce this record. Had Plaintiff not commenced the instant litigation, it is unknown whether Defendants would provided her with the BWC footage within the time under the statute of limitations. , having founded and authored several OPRA-related articles, so it is unlikely that the instant matter presented novel or complex elements counsel would have been unfamiliar with. See Griffin Cert. ¶¶ 14, 24-27. This was a relatively simple and straightforward OPRA matter that did not raise particularly difficult legal questions or substantive issues. Indeed, prior to filing the OPRA complaint, Plaintiff had already compelled Defendants to produce the dash camera footage, leaving only the matter of the BWC footage to be resolved. Regarding the second factor of RPC 1.5(a)(2), Plaintiff counsel was not precluded from pursuing other matters on behalf of Plaintiff or other clients while preparing for the instant litigation. this case was prioritized because OPRA that there had to be schedule adjustments and that the firm had to accommodate . Id. ¶ 29. As s counsel normally bills $565.00 per hour, but that this rate is routinely discounted to $500.00 per hour for OPRA matters as a courtesy to the government agency. Id. ¶ 32 that this rate is reasonable for what large law firms in northern New Jersey charge for skilled OPRA litigators. Ibid. Plai that OPRA fees ranging from $450.00 to $524.00 per hour were reasonable rates. Id. ¶¶ 33-34. 12 Pa053