In October 2010, I sued the Township of Readington (Hunterdon County) because its police department would not provide me with records that said how much cash was confiscated from a car that contained illegal substances.
On December 23, 2010, well after my suit's filing, the Township released records showing that $61,649 had been confiscated and asserted that this disclosure was being made because "the ongoing investigation by the DEA and the US Department of Justice has now been concluded." In a subsequent certification, Readington Police Chief Sebastian Donaruma confirmed that the DEA's investigation concluded on December 22, 2010.
In order to recover costs and attorney fees on a records suit, the burden is on the requestor to prove that a) the lawsuit was causally related to securing the relief obtained and b) the relief granted had some basis in law. Readington asserted, however, that the reason for its December 23, 2010 disclosure was not my lawsuit but because the federal investigation had just concluded the day before.
My lawyer, Rick Gutman, and I determined that given the Chief's certification, there was very little likelihood that we could convince the court that the lawsuit, and not the resolution of the federal investigation, was the impetus for the disclosure. Therefore, we abandoned our claim for attorney fees and costs. So, while I got the records, I lost $230 in court costs and Mr. Gutman recovered nothing for his efforts.
Had the investigation not concluded until after the court had heard my lawsuit, I probably would have prevailed. After all, it would be hard for the police to persuasively argue that the governmental interest in keeping the amount of seized cash confidential--especially since that amount is already known to the criminal defendant who possessed the cash--is greater than the public's right to know that amount. If the court would have so decided, I would have recovered my costs and Mr. Gutman his fees.
But, when a criminal investigation resolves after a lawsuit's filing but prior to it being heard, the police can release the requested records and thwart the requestor's ability to recover his costs and fees. Since one never knows how long a criminal investigation will take, its risky to sue for records that are being withheld because of a pending criminal investigation. This risk is likely to dissuade attorneys from taking contingency cases in which records related to pending investigations are sought.