                           NOT FOR PUBLICATION WITHOUT THE
                          APPROVAL OF THE APPELLATE DIVISION
   This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                      SUPERIOR COURT OF NEW JERSEY
                                                      APPELLATE DIVISION
                                                      DOCKET NO. A-5356-18T2

LAWRENCE JUSTIN MILLS,

        Plaintiff-Appellant,

v.

STATE OF NEW JERSEY,
DIVISION OF STATE POLICE
and DAVID ROBBINS,

     Defendants-Respondents.
__________________________

                 Argued telephonically July 13, 2020 –
                 Decided August 3, 2020

                 Before Judges Suter and Natali.

                 On appeal from the Superior Court of New Jersey, Law
                 Division, Mercer County, Docket No. L-2491-18.

                 Donald M. Doherty, Jr. argued the cause for appellant.

                 Suzanne M. Davies, Deputy Attorney General, argued
                 the cause for respondents (Gurbir S. Grewal, Attorney
                 General, attorney; Raymond R. Chance, Assistant
                 Attorney General, of counsel; Suzanne M. Davies, on
                 the brief).
PER CURIAM

      The sole issue in this appeal is the quantum of attorney's fees to which

plaintiff Lawrence Justin Mills is entitled as a result of his partial success in

obtaining a declaratory judgment requiring defendant, the New Jersey State

Police (NJSP), to produce certain documents related to his arrest under the Open

Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, and the common law right

of access. The trial court reduced plaintiff's fee request from $13,248 to $2376

and failed to award $362.95 in costs. We affirm the fee award but remand with

respect to plaintiff's request for costs as the court did not address the issue.

                                         I.

      According to the certification of defendant and NJSP custodian of records

Lieutenant David Robbins, plaintiff was arrested on November 2, 2017 for theft

by deception for allegedly "paying . . . individuals to open online internet

gaming accounts to receive . . . new account bonuses and using those . . .

bonuses to obtain $6000 to which he was not entitled." After the charges were

dismissed, plaintiff served the NJSP on October 2018 with a number of requests

under OPRA for records related to his arrest.

      Robbins received plaintiff's requests and attested that because the charges

involved internet gaming fraud, a "highly complex and sensitive crime[,]" he


                                                                             A-5356-18T2
                                         2
was required to "extensive[ly] review . . . the records and coordinat[e] with

various law enforcement agencies." Robbins sought two-week extensions to

respond to plaintiff's requests on October 12 and 26, 2018. He sought yet

another extension on November 14, 2018 which plaintiff promptly denied in a

November 14 responsive email.        In that communication, plaintiff advised

Robbins that he did not consent to any further extensions. Instead of responding

to the initial OPRA requests, or plaintiff's November 14, 2018 email, Robbins

instead sought another extension until December 12th. Three days later, on

December 3, 2018, plaintiff filed a verified complaint and order to show cause.

      After defendants failed to appear at a December 20, 2018 scheduled

teleconference, the court issued an order that day rescheduling the conference

for January 7, 2019. On January 8, 2019, the court issued a case management

order directing defendants to respond to plaintiff's OPRA requests by January

11th and to address the bases for refusing to produce any document. It also

directed defendants to provide a privilege log and a copy of any withheld

document for in camera review.

      On January 11, 2019, the NJSP denied plaintiff's requests, filed opposition

to the verified complaint, and provided the court with the entire investigation

file regarding plaintiff's arrest for in-camera review. The NJSP also claimed it


                                                                         A-5356-18T2
                                       3
did not have responsive records to certain of defendant's requests and denied

others relying on N.J.S.A. 47:1A-1.1, claiming a number of documents

constituted exempt criminal-investigatory, security, and surveillance records.

      After plaintiff challenged defendants' response, the court heard oral

argument on February 5, 2019 and ordered defendants to produce a "Vaughn"1

index which defendants subsequently produced for the entire investigatory file.

In that index, defendants did not assert the criminal-investigatory exemption for

the complaint/summons, arrest report, affidavit of probable cause, or dismissal

documents. The NJSP asserts on appeal that it did not previously provide these

records to plaintiff as they were not specifically requested, and they were already

in his possession from the criminal proceedings.

      On April 16, 2019, after considering the Vaughn index, the parties'

supplemental briefing and reviewing the documents in camera, the court issued

a comprehensive order that granted in part and denied in part plaintiff's requests.



1
  "A Vaughn index is comprised of affidavits containing a 'relatively detailed'
justification for the claim of privilege being asserted for each document. The
judge analyzes the index to determine, on a document-by-document basis,
whether each such claim of privilege should be accepted or rejected." Paff v.
Div. of Law, 412 N.J. Super. 140, 161 n.9 (App. Div. 2010) (citing Vaughn v.
Rosen, 484 F.2d 820, 826-27 (D.C. Cir. 1973)). The affidavits "ordinarily" omit
"excessive reference to the actual language of the document." Vaughn, 484 F.2d
at 826-27.
                                                                           A-5356-18T2
                                        4
The court concluded defendants correctly denied plaintiff's requests under

OPRA for "[computer aided dispatch (CAD)] reports, video footage of his

incarceration . . . , mug shots, and records of searches of his [i]Phone and

MacBook" because no such records existed. The court also found that the

remaining responsive records were properly denied under the criminal-

investigatory     records     exemption       of   OPRA,     except     for     the

"[c]omplaint/[s]summons, [a]ffidavit of [p]robable [c]ause, [a]rrest [r]eport . . .

, and documents confirming the dismissal of the charges." Plaintiff's counsel

conceded that he had previously been provided the complaint, probable cause

affidavit, and the letter dismissing the charges, but claimed the two-page arrest

report was never produced.2 The court accordingly ordered the NJSP to provide

plaintiff with the arrest report.


2
   In plaintiff's reply brief, he maintains he "did not have the records when the
decision was rendered" and "did not know [what] the records he would be getting
included . . . because [defendants] refused to tell him what was being withheld."
In its June 28, 2019 oral decision, however, the court stated that "[t]he
complaint/summons, and the affidavit of probable cause, and the dismissal
record, while they were public records under OPRA, . . . plaintiff conceded that
he was in possession of them." The court further noted in its April 16, 2019
order that "[c]ounsel for [plaintiff] agreed that the [c]omplaint/[s]ummons and
[a]ffidavit of [p]robable [c]ause had earlier been provided to [plaintiff], but
asserted at argument that the arrest report had not previously been provided." In
light of the court's comments and plaintiff's failure to include the February 5,
2019 oral argument transcript in the appendix, we find no record support for


                                                                           A-5356-18T2
                                          5
      The court next considered plaintiff's requests under the common law right

of access and determined that plaintiff was entitled to an additional forty-six

pages of records, including certain gaming receipts, a redacted version of the

investigation report and statements from certain witnesses. The court denied

plaintiff's requests for approximately 120 pages of additional documents,

including surveillance footage from the Golden Nugget casino.

      After the NJSP produced the ordered records, plaintiff filed an application

seeking $13,248 in attorney's fees and $362.95 in costs, which reflected

expenses related to filing fees for the complaint and order to show cause, copies,

and postage. As noted, the court granted plaintiff's application in part and

awarded a total of $2376 in counsel fees and did not address plaintiff's request

for costs.

      The court determined that plaintiff was a partially prevailing party under

OPRA as defendant failed to produce plaintiff's arrest report, but was

unsuccessful as to the remaining records, including the complaint, probable

cause affidavit and dismissal documents, as those materials were already in his

possession. The court also concluded that although plaintiff was entitled to fees


plaintiff's claim. See Spinks v. Twp. of Clinton, 402 N.J. Super 465, 474-75
(App. Div. 2008) (It is plaintiff's "responsibility to refer us to specific parts of
the record to support their argument.").
                                                                            A-5356-18T2
                                         6
under OPRA as a partially successful litigant, his success in receiving

documents under the common law did not warrant the award of fees as there

"wasn't anything here to justify going outside of the American [R]ule to give a

counsel fee for a common law cause of action."

      When determining the fee award, the court considered the Rules of

Professional Conduct (RPC) 1.5 factors and found the issues presented in the

verified complaint were not novel and the requisite time necessary to address

the issues was not extensive, particularly for plaintiff's counsel who was an

experienced OPRA attorney and whose brief contained "boilerplate" legal

arguments. The court also noted, however, that defendants failed to respond in

an appropriate and timely fashion to plaintiff's initial OPRA request, the initial

conference, and imposed numerous unilateral extensions. The court recognized

that plaintiff was successful in obtaining the arrest report and in compelling

production of the Vaughn index and ultimately concluded plaintiff's minimal

success under OPRA warranted a fee award of $2376, which represented 6.6

hours of work at the reasonable rate of $360 per hour.

      In determining its fee award, the court declined to award fees related to

plaintiff's efforts to obtain documents under the common law right of access.

The court explained that the "the issue of counsel fees under the common law


                                                                          A-5356-18T2
                                        7
was not before the [Mason v. Hoboken, 196 N.J. 51 (2008)] court and was not

decided by the Supreme Court." The court concluded that while plaintiff's

counsel was entitled to counsel fees as plaintiff was a prevailing party under

OPRA, plaintiff's counsel was "not entitled to fees for the work that led to the

release of documents under the common law."

      This appeal followed.

                                         II.

      On appeal, plaintiff raises two primary arguments. First, he contends that

although a 45% (16.6 hours) or 30% (11.1 hours) reduction would have been

"understandable[,]" the court's cutting 82% of his hours from 36.8 to 6.6

resulting in a reduction of his requested fee from $13,248 to $2376 was

"excessive." Second, plaintiff contends that the court erred in denying his

request for $362.95 in costs under Rule 4:42-8. We disagree that the court

abused its discretion in reducing plaintiff's fee request and remand for the court

to resolve in the first instance his request for costs.

      Whether OPRA applies to a litigant's application for fees is a "legal

conclusion[] subject to [our] de novo review."            Wronko v. N.J. Soc'y for

Prevention of Cruelty to Animals, 453 N.J. Super. 73, 79 (App. Div. 2018)

(citing O'Shea v. Twp. of W. Milford, 410 N.J. Super. 371, 379 (App. Div.


                                                                           A-5356-18T2
                                          8
2009)). If it does, we review awards of counsel fees for an abuse of discretion.

McGowan v. O'Rourke, 391 N.J. Super. 502, 508 (App. Div. 2007).

Determinations regarding counsel fees "will be disturbed only on the rarest of

occasions, and then only because of a clear abuse of discretion." Ibid. (quoting

Packard-Bamberger & Co. v. Collier, 167 N.J. 427, 443-44 (2001)).

      "Subject to certain categorical exceptions provided by statute or court

rule, New Jersey courts abide by the American [R]ule that all parties in civil

litigation pay their own legal fees. R. 4:42-9. The fee-shifting provision within

OPRA, N.J.S.A. 47:1A-6, constitutes such an exception to the American

[R]ule." Smith v. Hudson County Register, 422 N.J. Super. 387, 393 (App. Div.

2011). Pursuant to N.J.S.A. 47:1A-6, an OPRA "requestor who prevails in any

proceeding shall be entitled to a reasonable attorney's fee" upon a determination

by the court that the "custodian [of the record] unjustifiably denied access to the

record in question[.]" New Jerseyans for a Death Penalty Moratorium v. N.J.

Dep't of Corr., 185 N.J. 137, 153 (2005); see also Wronko, 453 N.J. Super. at

82.

      The purpose of the fee shifting provision of OPRA is to ensure "that

plaintiffs with bona fide claims are able to find lawyers to represent them[,] . . .

to attract competent counsel in cases involving an infringement of statutory


                                                                            A-5356-18T2
                                         9
rights[,] . . . and to ensure justice for all citizens." Coleman v. Fiore Bros., Inc.,

113 N.J. 594, 598 (1989). Our courts use the "catalyst theory" to determine

whether a plaintiff is a prevailing party in a litigation.         A plaintiff must

demonstrate: "(1) 'a factual causal nexus between plaintiff's litigation and the

relief ultimately achieved'; and (2) 'that the relief ultimately secured by plaintiffs

had a basis in law.'" Mason, 196 N.J. at 76 (citing Singer v. State, 95 N.J. 487,

494 (1984)).

      Applying these guiding principles, we conclude that the court correctly

determined defendant was a partially prevailing party under OPRA as he

obtained the arrest report which should not have been withheld. A clear factual

nexus existed between plaintiff's litigation and the production of the document.

Furthermore, there was a basis in law for the relief granted to defendant under

OPRA.

      Turning to the judge's determination of the amount of counsel fees

awarded, we discern no abuse of discretion. In determining the amount of the

award, a court must calculate the "lodestar," which is the number of hours

reasonably expended by the successful party's counsel, multiplied by a

reasonable hourly rate. Litton Indus., Inc. v. IMO Indus., Inc., 200 N.J. 372,

386 (2009). In calculating the "lodestar," the court considers:


                                                                              A-5356-18T2
                                         10
            (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 ability of the lawyer
            or lawyers performing the services;

            (8) whether the fee is fixed or contingent.

            [Id. at 387 (citing RPC. 1.5(a)).]

      The lodestar may be reduced "if the level of success achieved in the

litigation is limited as compared to the relief sought."           Death Penalty

Moratorium, 185 N.J. at 154 (quoting Rendine v. Pantzer, 141 N.J. 292, 336

(1995)). An award of counsel fees should not, however, be reduced "simply

because the plaintiff failed to prevail on every contention raised in the lawsuit."

Ibid. (quoting Hensley v. Eckerhart, 461 U.S. 424, 435 (1983)).


                                                                           A-5356-18T2
                                       11
      To determine a prevailing requestor's degree of success, a court "should

conduct a qualitative analysis that weighs such factors as the number of

documents received versus the number of documents requested, and whether the

purpose of [ ] OPRA was vindicated by the litigation." New Jerseyans, 185 N.J.

at 155. "[S]uccess under [ ] OPRA – even a high degree of success – might be

acquiring that one smoking gun record hidden amongst hundreds of pages or . .

. it may be the absence of any records." Ibid. (internal quotation marks omitted).

      Here, the court concluded that counsel's hourly rates were reasonable but

that the number of hours expended by counsel were excessive "because of the

minimal success . . . in terms of compelling an answer which only was brought

about by virtue of the lawsuit." Specifically, of the twenty-seven groups of

records listed in the Vaughn index that contained over 170 pages of documents

as well as numerous DVD interviews and surveillance tapes, plaintiff succeeded

in obtaining only a two-page arrest report under OPRA. The remaining records

he obtained were released under the common law.

      The court further found that "there was not a novelty of issues here" and

that the time and labor required were "not extensive." The court emphasized

that plaintiff's counsel "is a very experienced OPRA attorney" and that "from

reviewing the papers in this case and other cases[,] . . . a lot of boilerplate legal


                                                                             A-5356-18T2
                                        12
argument [was] used." Consequently, after evaluating plaintiff's limited success

and the amount of work performed, she awarded defendant approximately 18%

of the fees sought. We are satisfied from our conscientious review of the record

that the trial court conducted the proper qualitative analysis and discern no abuse

of discretion in its decision as the court's factual findings are amply supported

by the record.

      We are unpersuaded by plaintiff's reliance on Silva v. Autos of Amboy,

Inc., 267 N.J. Super. 546, 559 (App. Div. 1993), to support his argument that

the trial court improperly relied on a mathematical approach to reduce the fee

by "employ[ing] a nearly straight line percentage breakdown of the fee sought

awarded." In Silva, we rejected the trial court's calculation of the fee which was

obtained by mechanical division of the lodestar based on the number of counts

in the complaint. We reiterated the notion that "the court must focus on the

'significance of the overall relief obtained by the plaintiff in relation to the hours

reasonably expended on the litigation'" and that "[i]f a plaintiff achieves

excellent results in a lawsuit, counsel fees should not be reduced on the ground

that the plaintiff did not prevail on each claim . . . ." Id. at 556. Accordingly,

we held that it was error for the trial judge to award plaintiff one-seventh of the




                                                                              A-5356-18T2
                                         13
reasonable fees incurred because she prevailed on only one count of a seven

count complaint. Id. at 559.

      As our Supreme Court has more recently explained:

            We reject "a mathematical approach comparing the
            total number of issues in the case with those actually
            prevailed upon" because "[s]uch a ratio provides little
            aid in determining what is a reasonable fee in light of
            all the relevant factors." Stated differently, "the fee
            award should not be reduced simply because the
            plaintiff failed to prevail on every contention raised in
            the lawsuit."

            [New Jerseyans, 185 N.J. at 154 (citations omitted).]

      Here, the court did not simply count the number of documents requested

and award fees based on a mathematical ratio of what plaintiff actually obtained

under OPRA. To the contrary, the court's ruling tracked this court's direction in

Silva and "consider[ed] plaintiff's limited success and other pertinent factors,"

267 N.J. Super at 560, in calculating the fee. Indeed, in addition to the arrest

report that plaintiff obtained, the court also took into consideration RPC 1.5

factors as well as the fact that plaintiff "was persistent and got the Vaughn

index" and "prevailed upon getting a response from the defendants, even though

it was a denial."

      Furthermore, plaintiff's contention that he prevailed in the entire case as

he obtained "a few [records] under OPRA and dozens more under the common

                                                                         A-5356-18T2
                                      14
law right of access" is unpersuasive. And in this regard, we find no error in the

court's reliance on Mason and the American Rule in denying plaintiff's fee

request related to his limited success under the common law right of access.

Although N.J.S.A. 47:1A-6 expressly permits an award of counsel fees under

OPRA, there is no statutory authority for such an award to a prevailing party in

a common law right of access to public records lawsuit. Further, the Mason

court did not state that it was abrogating the American Rule and establishing a

new class of cases where attorneys' fees could be awarded to a prevailing

plaintiff. Instead, the Court directed trial courts to conduct a "fact-sensitive

inquiry on a case-by-case basis" to determine when an award of fees is

appropriate. Mason, 196 N.J. at 79.

      If a plaintiff has achieved "'only partial or limited success, the product of

hours reasonably expended on the litigation as a whole times a reasonable hourly

rate may be an excessive amount.'" Rendine, 141 N.J. at 336 (quoting Hensley,

461 U.S. 424, 436 (1983)); see also Litton Indus., Inc., 200 N.J. at 386-88; R.

4:42-9. Thus, trial courts are authorized to '"attempt to identify specific hours .

. . that should be eliminated [or] simply reduce the award to account for the

limited success.'" Szczepanski v. Newcomb Med. Ctr., Inc., 141 N.J. 346, 356

(1995) (alterations in original).


                                                                           A-5356-18T2
                                       15
      Here, as noted, the court clearly conducted such a fact-based analysis

when reducing plaintiff's fee request. Plaintiff's initial request for documents

was denied by the NJSP either because no such records existed or based on

exceptions for criminal investigatory records and that certain documents

contained surveillance information that would compromise security.        Other

documents were not produced as they contained personal identifying

information, or because plaintiff already possessed documents through his

criminal prosecution.

      After an in camera review, the court determined that all documents other

than the complaint/summons, affidavit of probable cause, arrest report, and

those related to dismissal were "protected from disclosure by the criminal

investigatory records exception of OPRA." And, of the four documents not

covered by that exception, the court found that NJSP already provided plaintiff

with all except the arrest report.

      As to the documents released under the common law, the trial court

determined that while defendant was entitled to over forty pages of records, a

redacted version of the investigation report, and three DVDs of witness

interviews, defendants properly withheld over 100 other pages of documents




                                                                        A-5356-18T2
                                      16
that plaintiff requested. 3 Again, in light of the court's analysis, we are satisfied

that the court did not abuse its discretion in determining the fee award.

                                         III.

      With respect to plaintiff's request for $362.95 in costs, Rule 4:42-8 states

that "[u]nless otherwise provided by law, these rules or court order, costs shall

be allowed as of course to the prevailing party." If a party prevails, that party



3
  While the trial court notes in its June 28, 2019 oral decision that plaintiff cited
to statements in Mason pertaining to the awarding of counsel fees in a common
law suit under the catalyst theory, plaintiff fails to raise a similar argument on
appeal in either his initial or reply brief. In fact, plaintiff cites to Mason only in
his reply brief and in support of a different legal proposition entirely. To the
extent we can discern such an argument from plaintiff's briefs, we conclude it is
waived. See Sklodowsky v. Lushis, 417 N.J. Super. 648, 657 (App. Div. 2011)
("An issue not briefed on appeal is deemed waived."). Were plaintiff to raise
such an argument in any event, we note that "[u]nlike a citizen's absolute
statutory right of access [under OPRA], a plaintiff's common-law right of access
must be balanced against the State's interest in preventing disclosure." Higg-A-
Rella, Inc. v. County of Essex, 141 N.J. 35, 46 (1995). Although a requestor
may establish "'a wholesome public interest or a legitimate private interest'" in
the public document, id. at 47 (quoting Loigman v. Kimmelman, 102 N.J. 98,
112 (1986)), release is not automatic. Rather, a court must then engage in a
deliberative process that involves consideration of a number of factors in order
to determine whether the requestor's interest in access to the document
outweighs the State's interest in non-disclosure. Id. at 46-48. Therefore,
disclosure pursuant to the common law right of access contemplates a fact -
specific weighing process that will vary in each situation. Id. at 49. Here, we
conclude that the NJSP should not be penalized for withholding documents
under the assumption that they are not proper for public access as the court
determined that a majority of the records for which plaintiff sought access were
unquestionably criminal records maintained by the NJSP.
                                                                              A-5356-18T2
                                        17
should receive costs as a matter of course even if there is an "incomplete

success." Gallo v. Salesian Soc'y, 290 N.J. Super. 616, 660 (App. Div. 1996).

"[A] prevailing party may be denied an award of costs only for 'special reasons.'"

Knight v. AAA Midatlantic Ins. Co., 394 N.J. Super. 333, 337 (App. Div. 2007)

(quoting Schaefer v. Allstate N.J. Ins. Co., 376 N.J. Super. 475, 487 (App. Div.

2005)).

      It does not appear from the record that the court ruled on plaintiff's request

for costs, which as noted included typical expenses for filing fees, copies, and

postage. Accordingly, on remand, the court should address plaintiff's cost

application and if it concludes they are not recoverable in whole or in part,

should clearly identify the "special reasons" supporting that conclusion. See

Knight, 394 N.J. Super. at 337 (quoting Schaefer, 376 N.J. Super. at 487).

      To the extent we have not addressed any of plaintiff's remaining

arguments it is because we conclude they are sufficiently without merit to

warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

      Affirmed in part and remanded in part.




                                                                            A-5356-18T2
                                       18
