In an unpublished decision released today, February 18, 2010, the New Jersey Superior Court Appellate Division affirmed an award of approximately $16,000 in attorney fees and costs to my attorney, Richard Gutman of Montclair, by Gloucester County Superior Court Assignment Judge Georgia M. Curio after we prevailed in an Open Public Records act (OPRA) suit against West Deptford Township. The decision, as well as the briefs filed by both sides, are on-line here.
At issue before Judge Curio was whether the Internal Affairs Summary Report Forms filed by the West Deptford Police Department and the Police Department's Use of Force Reports arising out of an August 6, 2003 incident were public records under OPRA. (Note: The August 6, 2003 incident involved Nekeisha Williams, of West Deptford, who claimed that West Deptford Police Officers Patrick Goggin, Michael Pfeiffer and Sean McKenna used excessive force that resulted in her being thrown to the ground causing her to break her femur. The police officers' account of the incident was significantly different. Williams sued the West Deptford Police in federal court and ultimately settled her case for $600,000. More information about the underlying case can be found here.)
West Deptford had claimed that the requested records were exempt from disclosure because Williams and the Township, within the federal court case, consented to a Discovery Confidential Order that prevented the parties to the federal suit from disclosing purportedly confidential records produced in discovery. On December 2, 2008, Judge Curio rejected the Township's defense and ordered release of the requested records. In a subsequent order, she awarded me and Mr. Gutman court costs and attorney fees.
Even though the Township did not appeal from the December 2, 2008 order, the Appellate Division reviewed the underlying question of whether the Discovery Confidentiality Order trumped a citizen's OPRA request. The court held that the Confidentiality Order "was entered for the benefit of the Township, and its purpose was to prohibit other parties and their attorneys in the federal case from disclosing records produced in discovery, or from using those records for purposes outside the federal litigation." The court found that the Discovery Confidentiality Order "did not pertain to the Township's other uses of its own record [and] did not prohibit the Township's disclosure of government records under OPRA."
The court went on to say that "the Township could not exempt itself from the requirements of OPRA, or other State law, by entering into a consent order to maintain confidentiality of discovery materials it provides to litigants in a lawsuit."