Sunday, October 30, 2016

Opinion: GRC should be able to award OPRA attorney fees without help from an administrative law judge.

One of the main complaints about the Government Records Council (GRC) is the length of time it takes to fully adjudicate an Open Public Records Act (OPRA) case.  For example, on October 25, 2016, the GRC adjudicated Michael L. Shelton v. Manasquan School District, GRC Complaint No. 2014-183 which was filed on April 25, 2014.  Unfortunately, case processing times that are counted in years instead of months are not uncommon. 

Making a party wait two and a half years for his or her OPRA case to conclude is not in keeping with OPRA's goal of making government records "readily accessible" and providing requestors with "a summary or expedited" adjudication process when access to records is denied. See, N.J.S.A. 47:1A-1 and 47:1A-6.

One of the many reasons for the GRC's slowness is its heavy reliance on administrative law judges to resolve factual disputes.  While it makes sense to have administrative judges preside over contested OPRA matters where a case's underlying facts are in serious dispute and extensive discovery and witness testimony is required, the GRC should refrain from farming out routine matters that the GRC's staff members are capable of deciding themselves.

For example, on October 25, 2016, the GRC nearly wrapped up Shawn G. Hopkins v. Monmouth County Board of Taxation, et al--a case which was originally filed with the GRC in January 2014.  Hopkins won his case and the only issue left to be decided was the amount of attorney fees the government agencies that denied Hopkins' requests had to pay. 

Hopkins' attorneys had filed certifications with the GRC stating the number of hours they worked on the case and their hourly rates.  What was left for the GRC to do was determine whether the hours the attorneys claimed to have worked were fair and whether their hourly rates were reasonable.  Multiplying the rates by the hours would yield the "loadstar" amount of fees which then could be adjusted upward if warranted by the novelty or difficulty of the case. 

In its October 25, 2016 opinion, the GRC decided to punt the determination of Hopkins' attorney fees to an administrative law judge.  In its decision, the GRC said that it "has limited experience in attorney fees" and was satisfied that an administrative law judge "is in the best position to resolve the parties' arguments and reach a reasonable prevailing party fee determination."

Why cannot the GRC determine the proper fee amount itself?  It has done so in other cases (see, e.g. Jeff Carter v. Franklin Fire District #2, Complaint No. 2011-228). 

It will likely take the administrative law judge another six months to a year to resolve the attorney fee issue.  And, upon receipt of the judge's recommendation, it will take an additional month or two for the GRC to affirm that fee amount. 

The parties to this matter and their attorneys have waited long enough for this case to be resolved. The GRC should not have referred this matter to the Office of Administrative Law.  Rather, it ought to have determined a fair attorney fee award itself.

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