                            NOT FOR PUBLICATION WITHOUT THE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-1810-16T3

PORT AUTHORITY POLICE
BENEVOLENT ASSOCIATION, INC.
and PAUL NUNZIATO,

       Plaintiffs-Appellants,

v.

PORT AUTHORITY OF NEW YORK
AND NEW JERSEY; WILLIAM
SHALEWITZ, in his official capacity
as Freedom of Information
Administrator for the Port
Authority of New York and New
Jersey; KAREN EASTMAN, in her
official capacity as Secretary
for the Port Authority of
New York and New Jersey,

     Defendants-Respondents.
____________________________________

                Argued May 2, 2018 – Decided December 20, 2018

                Before Judges Fuentes, Koblitz and Suter.

                On appeal from Superior Court of New Jersey, Law
                Division, Bergen County, Docket No. L-5789-16.
            Jeffrey D. Catrambone argued the cause for appellants
            (Sciarra & Catrambone, LLC, attorneys; Jeffrey D.
            Catrambone, of counsel and on the brief).

            Thomas R. Brophy argued the cause for respondents
            (Port Authority Law Department, attorneys; Thomas R.
            Brophy and Sajaa S. Ahmed, of counsel and on the
            brief).

      The opinion of the court was delivered by

FUENTES, P.J.A.D.

      Plaintiffs, the Port Authority Police Benevolent Association, Inc., and

Paul Nunziato, filed a Verified Complaint against defendants, the Port Authority

of New York and New Jersey, William Shalewitz, and Karen Eastman, seeking

a response to fifty-eight requests for government records pursuant to the Open

Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13. Defendants provided

responses to six requests, requested more time to respond to fourteen other

requests, and denied the remaining thirty-eight requests as overbroad. The trial

court ordered defendants to produce records pertaining to the fourteen requests,

and granted plaintiffs' application for an award of counsel fees under N.J.S.A.

47:1A-6. The court limited the scope of the award to fees incurred seeking

access to these fourteen requests.

      In this appeal, plaintiffs argue the court erred when it: (1) found the

records in counts 1-36, 52, and 58 are not subject to disclosure under OPRA; (2)

                                                                        A-1810-16T3
                                       2
held defendants are not required to produce the records plaintiffs identified in

their motion for reconsideration; (3) determined the lodestar amount for counsel

fees plaintiffs are entitled to receive as a prevailing party; and (4) denied

plaintiffs' counsel's application for a fee enhancement. Defendants argue the

trial court correctly determined that thirty-eight requests for records filed by

plaintiffs were overbroad. With respect to the award of counsel fees, defendants

argue the court correctly determined plaintiffs are not entitled to a fee

enhancement.

      We conclude the court erred in denying plaintiffs' requests 27-29, 31-34,

36, 52 and 58 and affirm the court's decision to deny the remaining requests as

overbroad. We thus remand the matter for the court to reconsider plaintiffs'

award of counsel fees under N.J.S.A. 47:1A-6.

                                       I

      The dispute before us derives from a ruling the trial court made on May

17, 2016.   Based on this ruling, on June 14, 2016, plaintiffs submitted to

defendants an amended list of fifty-nine OPRA requests for documents.

Defendants responded to only one of these requests.       On August 9, 2016,

plaintiffs filed a Verified Complaint against defendants containing fifty-two

counts; each count identified a request for documents that defendant allegedly


                                                                        A-1810-16T3
                                       3
denied in violation of OPRA. Ten days later, plaintiffs filed an Amended

Verified Complaint, adding six additional counts, for a total of fifty-eight OPRA

requests.   Plaintiffs generated this list of fifty-eight requests during the

litigation.1 In a certification submitted to the Law Division as part of defendants'

responsive pleading, defense counsel separated the objections to plaintiffs'

requests into four categories: (1) overbroad requests; (2) missing criteria

requests; (3) completed requests and; (4) open requests. Defendants categorized

thirty-eight requests as "overbroad" or "missing criteria," six as "completed,"

and fourteen as "open."

      After hearing counsels' arguments, the trial judge issued an oral and

written decision on October 12, 2016. As a threshold matter, the judge found

the parties did not dispute "that the records that are being requested are

government records [as defined in N.J.S.A. 47:1A-1.1]. So they fall within the

ambit of OPRA." It is equally undisputed that defendants are "not claiming . . .




1 In their appellate brief, defendants included a footnote requesting that this
court refrain from referring to the list because "it was never provided to [them]."
This request is inappropriate. The proper method for raising issues concerning
the content of a party's brief or appendix is via motion practice pursuant to Rule
2:8-1.


                                                                            A-1810-16T3
                                         4
any of the statutory exemptions." 2 Against the backdrop of these undisputed

issues, the judge made the following additional findings:

            (a) Defendants have provided responsive records to
            six (6) requests (counts 37, 40, 44, 45, 49, 50)

            (b) Defendants have denied thirty-eight (38) requests
            in their entirety (counts 1-36, 52, 58)

            (c) Defendants have acknowledged receipt and have
            provided an expected response date for fourteen (14)
            requests (counts 38 39, 41-43, 46-48, 51, 53-57).

The judge provided the following explanation for upholding defendants'

decision to deny the thirty-eight requests:

            Plaintiffs' requests are overbroad and invalid under
            OPRA as they fail to properly identify the records being
            sought. The language used in the majority of the
            requests does not specifically and with reasonable
            clarity identify the records sought. Those requests that
            have properly identified the records being sought, have
            been granted.

      The judge also found the requests imposed "a burden on the custodian to

exercise his discretion and discern the broad 'catch-all' language in order to

respond to [d]efendants' requests." By imposing this burden on the custodian of

records, the judge found plaintiffs' requests fell outside the scope of OPRA. The


2 OPRA has twenty-one statutory exemptions to the term "government record," as
defined in N.J.S.A. 47:1A-1.1, which are to be "'construed in favor of the public's
right of access.'" Carter v. Doe (In re N.J. Firemen's Ass'n Obligation), 230 N.J.
258, 276 (2017) (quoting N.J.S.A. 47:1A-1).
                                                                           A-1810-16T3
                                        5
judge also found that many of plaintiffs' requests contained "boilerplate

prefatory language" that requires "the custodian to analyze, collate, compile and

exercise discretion," which is not encompassed within OPRA.           The judge

concluded these requests are overbroad because they would require the

custodian to conduct open-ended searches.

      The judge also found the current requests were strikingly similar to the

previously denied requests. She found that in an attempt to camouflage the

current requests, plaintiffs had merely "broken into subparts" the requests. In

the judge's view, this maneuver did not cure the original problem. Plaintiffs'

requests "remain vague requests for information that would require [d]efendants

to exercise discretion as to which documents are responsive [and which] are

invalid under OPRA." In this light, the judge considered defendants' delay in

responding to the requests reasonable because timely responses would have

disrupted agency operations. Because she found defendants' responses were

lawful and appropriate, the judge denied plaintiffs' application for counsel fees

as a prevailing requestor. See N.J.S.A. 47:1A-6.

      On November 1, 2016, plaintiffs filed a notice of motion for partial

reconsideration with respect to the trial court's denial of access to records for

requests: 27-34, 36, 52 and 58. Plaintiffs also filed a motion seeking $36,196.88


                                                                         A-1810-16T3
                                       6
in attorney's fees. On December 16, 2016, the trial court denied the motion for

reconsideration and awarded plaintiffs $5,400 in attorney's fees. In support of

its award of counsel fees, the trial court found plaintiffs were "a partially

prevailing party" as to counts 38, 39, 41-43, 46-48, 51 and 53-57, but found the

hours billed by plaintiffs' counsel were "excessive and unreasonable" because

the "fee application includes the entirety of time spent and is not limited to

plaintiffs' successes." The court applied the percentage of successful requests

to the total hours billed to reach the lodestar amount of $5,400. In this appeal,

plaintiffs challenge the orders entered on October 12, 2016 and December 16,

2016.

        Plaintiffs argue the records in requests 1-36, 52 and 58 are subject to

disclosure under OPRA because the requests are similar to those deemed valid

under Burke v. Brandes, 429 N.J. Super. 169 (App. Div. 2012) and Burnett v.

Cty. of Gloucester, 415 N.J. Super. 506 (App. Div. 2010). Plaintiffs maintain

the requests were made with "reasonable clarity" and listed "identifiable

records." Plaintiffs emphasize these requests merely required defendants to

"search" for documents, not to "conduct research."

        Plaintiffs specifically point to four categories of requests the trial court

found inappropriate and outside OPRA's reach: "records of meetings . . . and


                                                                            A-1810-16T3
                                          7
communications,"     "contracts    and   agreements,"     "emails    and    written

communications" and "application for grants, assistance, loan guarantees or

reimbursement of expenses to government agencies." Plaintiffs argue these

categories "specifically identify" certain records and are not "overly-broad" or

"open-ended."

      Plaintiffs also address the eleven requests that were the subject of the

motion for reconsideration, which, in their judgment, were "narrowly-tailored"

and listed "specifically identifiable governmental records."         According to

plaintiffs, these requests concern records that "contain a date range, subject

matter, and identity of the sender and/or recipient," which is "sufficient under

OPRA." Consequently, plaintiffs claim they are all subject to disclosure under

OPRA.

      Finally, with respect to the award of counsel fees, plaintiffs argue the court

improperly reduced the lodestar amount by "arbitrarily reducing the attorney

hours by 76% and awarding a lower hourly rate, and improperly did not award

a fee enhancement." Plaintiffs contend the trial court arrived at the lodestar by

improperly using a rigid proportionality requirement.

      In response, defendants argue plaintiffs' 4,000 word, seventy-eight page

complaint is overbroad and encompasses a type of record request not envisioned


                                                                            A-1810-16T3
                                         8
by the Legislature when it enacted OPRA. According to defendants, all of the

requests, and especially requests 1-22, are "deficient" because they seek

"records of meetings" between several individuals over a five-year period,

without identifying specific senders and recipients.       Defendants argue that

requests 2, 6, 8, 9, 13, 16, 17 and 23 seek "phone logs, telephone billing records,

or cellular phone/text billing records concerning a variety of different subject

matter." This would require defendants' custodian of government records to

interview "thousands of individuals" to determine which of their billing records

corresponded to the appropriate subject matter. Finally, defendants argue that

requests 5, 6, 7, 9, 10, 11, 12, 27, 29, 31 and 32 lack subject matters that can be

easily searched and are thus outside the purview of OPRA.

      Defendants urge this court to uphold the trial court's decision regarding

the amount of counsel fees awarded to plaintiffs. They argue plaintiffs should

only be awarded fees directly related to the "narrow portion of its case where it

prevailed – not to a windfall amount for its unsuccessful requests." According

to defendants, this situation did not require an upward adjustment of the lodestar,

and plaintiffs' request for $36,000 was unreasonable.




                                                                           A-1810-16T3
                                        9
                                        II

      This court reviews "de novo the issue of whether access to public records

under OPRA and the manner of its effectuation are warranted." MAG Entm't,

LLC v. Div. of Alcoholic Beverage Control, 375 N.J. Super. 534, 543 (App. Div.

2005) (emphasis omitted). The purpose of OPRA, N.J.S.A. 47:1A-1 to -13, is

"to insure that government records, unless exempted, are readily accessible to

citizens of New Jersey for the protection of the public interest." Mason v. City

of Hoboken, 196 N.J. 51, 57 (2008) (citing N.J.S.A. 47:1A-1). When it adopted

OPRA, the Legislature codified New Jersey's "longstanding public policy

favoring ready access to most public records." Serrano v. S. Brunswick Twp.,

358 N.J. Super. 352, 363 (App. Div. 2003). OPRA establishes a framework for

public records access and generally requires prompt disclosure of records; it also

provides record seekers a way to challenge a custodian's decision denying

access. Ibid.

      Under OPRA, "government record" is defined as follows:

            [A]ny 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 official business by any officer,
            commission, agency or authority of the State or of any

                                                                          A-1810-16T3
                                       10
            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. The terms shall not include inter-
            agency or intra-agency advisory, consultative, or
            deliberative material.

            [N.J.S.A. 47:1A-1.1.]

Absent an applicable exclusion or exemption to prevent disclosure, "all

government records shall be subject to public access[.]" N.J.S.A. 47:1A -1.

Therefore, OPRA mandates public access to government records unless the

records are covered by a specific exclusion. Ibid. A records custodian must

grant or deny access to a government record "as soon as possible, but not later

than seven business days after receiving the request," and a failure to respond

within this time "shall be deemed a denial of the request." N.J.S.A. 47:1A-5(i).

If the agency believes it cannot provide a timely response, the custodian must

convey that information to the record seeker within seven business days and

advise when the record will be made available. Ibid.

      If a records request is denied, the requestor may challenge the decision by

filing an action in the Superior Court or through a complaint with the

Government Records Council. N.J.S.A. 47:1A-6. When access is denied, the

burden is placed on the agency to prove the denial was authorized by law. Ibid.

                                                                         A-1810-16T3
                                      11
When assessing the agency's evidence for denying access, "a court must be

guided by the overarching public policy in favor of a citizen's right of access."

Courier News v. Hunterdon Cty. Prosecutor's Office, 358 N.J. Super. 373, 383

(App. Div. 2003). If the court determines that the agency erred in denying

access, the court will order access to the records, and the prevailing party shall

be entitled to reasonable attorney's fees. N.J.S.A. 47:1A-6.

      Under N.J.S.A. 47:1A-5(g), if "the custodian is unable to comply with a

request for access, the custodian shall indicate the specific basis therefor on the

request form and promptly return it to the requestor." One such basis is an

overly broad request, as New Jersey courts have stated OPRA governs "requests

for records, not for information." Burke, 429 N.J. Super. at 174 (quoting Bent

v. Twp. of Stafford Police Dep't, 381 N.J. Super. 30, 37 (App. Div. 2005)). In

Burke, we explained the type of requests that may be viewed as overly broad

and thus beyond the scope of OPRA:

            "[A]gencies are only obligated to disclose identifiable
            government records." MAG Entm't, 375 N.J. Super. at
            549. The statute "only allows requests for records, not
            requests for information." Bent, 381 N.J. Super. at 37.
            A proper request "must identify with reasonable clarity
            those documents that are desired." Ibid. "Wholesale
            requests for general information to be analyzed,
            collated and compiled" by the agency are outside
            OPRA's scope. MAG Entm't, 375 N.J. Super. at 549.
            "In short, OPRA does not countenance open-ended

                                                                           A-1810-16T3
                                       12
            searches of an agency's files."       Ibid.; see also
            Spectraserv, Inc. v. Middlesex Cnty. Utils. Auth., 416
            N.J. Super. 565, 576 (App. Div. 2010).

            Nor is OPRA "intended as a research tool litigants may
            use to force government officials to identify and siphon
            useful information." MAG Entm't, 375 N.J. Super. at
            546. Furthermore, if a request "would substantially
            disrupt agency operations, the custodian may deny
            access to the record after attempting to reach a
            reasonable solution with the requestor that
            accommodates the interests of the requestor and the
            agency." N.J.S.A. 47:1A-5(g).

            [Burke, 429 N.J. Super. at 174.]

      The salient facts in Burke provide a concrete example of how to determine

whether a request is overly broad. The plaintiff in Burke sought records from

the Office of the Governor regarding "E[-]Z pass benefits afforded to retirees of

the Port Authority, including all . . . correspondence between the Office o f the

Governor . . . and the Port Authority . . . ." Id. at 171. The custodian of records

from the Office of the Governor denied this request on the basis that it was

overbroad. Ibid. The trial court upheld the custodian's denial on this basis. We

reversed because the request "was confined to a specific subject matter that was

clearly and reasonably described with sufficient identifying information,

namely, E-Z Pass benefits provided to Port Authority retirees." Id. at 176. The

request was also limited to "particularized identifiable government records . . .


                                                                           A-1810-16T3
                                       13
rather than information generally," and "did not require the custodian to conduct

research, or to collect, collate and analyze data." Id. at 176-77. We particularly

noted that because plaintiff's request:

            . . . described the records sought with the requisite
            specificity and narrowed the scope of the inquiry to a
            discrete and limited subject matter, we conclude his
            request was neither vague nor overbroad. The request
            sought the records themselves, not data, information or
            statistics to be extracted, gleaned or otherwise derived
            therefrom. Involving no research or analysis, but only
            a search for, and production of, what proved to be
            readily identifiable records, plaintiff's properly
            circumscribed and tailored request was wrongly
            invalidated as overbroad.

            [Id. at 177-78.]

      We described the features of an inappropriate OPRA request in Bent, 381

N.J. Super. 30. The plaintiff in Bent requested his entire criminal file from an

investigation jointly conducted by the Stafford Township Police Department,

the United States Attorney for New Jersey, and the Internal Revenue Service.

Id. at 33-34. He also requested "the factual basis underlying documented action

and advice to third parties to act against my interest [having] been credited to

SPD under a Federal Grand Jury credit card investigation." Ibid. We deemed

his request improper under OPRA because he did not request specific documents

and instead "sought the custodian's response to his allegation of police


                                                                          A-1810-16T3
                                          14
misconduct, borne of his belief that certain unidentified and unnamed documents

on file with the township were wrongfully concealed or withheld from him." Id.

at 39. We held an agency is not obligated to respond to a request seeking

"general information" and framed as an "open-ended demand requir[ing]

analysis and evaluation . . . [.]" Id. at 39-40.

      Similarly, in MAG Entm't, this court denied the plaintiff's request for "'all

documents or records evidencing that the [Division of Alcoholic Beverage

Control] [(ABC)] sought, obtained or ordered'": (1) "'revocation of a liquor

license for the charge of selling alcoholic beverages to an intoxicated person in

which such person, after leaving the licensed premises, was involved in a fatal

auto accident'"; and (2) "'suspension of a liquor license exceeding 45 days for

charges of lewd or immoral activity.'" 375 N.J. Super. at 539-40. The plaintiff

did not provide names or any other identifiers in the request and the records

custodian was "required to evaluate, sort out, and determine the documents to

be produced and those otherwise exempted." Id. at 549. This court concluded

the request was "a broad-based demand for research and analysis, decidedly

outside the statutory ambit." Id. at 550.

      In N.J. Builders Ass'n v. N.J. Council on Affordable Hous., 390 N.J.

Super. 166 (App. Div. 2007), the plaintiff submitted thirty-eight requests under


                                                                           A-1810-16T3
                                        15
OPRA that sought documents and data "'used' or 'considered' by COAH or

'support[ing],'   'demonstrat[ing],'   'justif[ying]'   or   'verif[ying]'   various

determinations relevant to COAH's determinations about fair-share housing

obligations" including "[a]ny and all documents and data which [were] relied

upon, considered, reviewed or otherwise utilized" by any individual at COAH

for an affordable housing project. Id. at 172. We denied the plaintiff's request

on similar grounds. Consistent with the approach we employed in Bent and

MAG Entm't, we stated that the "five-page, thirty-nine paragraph request bears

no resemblance to the record request envisioned by the Legislature" as it

"required a survey of employees . . . before any attempt to compile the

documents and data[.]" Id. at 178. It concluded that the plaintiff "asked COAH

to identify the documents, which is [the plaintiff's] obligation under OPRA."

Ibid.

        In contrast, in Burnett, 415 N.J. Super. at 508, we granted an OPRA

request from the County of Gloucester of "[a]ny and all settlements, releases or

similar documents entered into, approved or accepted from 1/1/2006 to present."

In Burnett, our colleague Judge Payne explained "the fact that [the plaintiff]

requested settlement agreements and releases without specifying the matters to

which the settlements pertained did not render his request a general request for


                                                                             A-1810-16T3
                                       16
information obtained through research, rather than a request for a specific

record."   Id. at 513-14.   Judge Payne clearly identified the key analytical

distinction by noting that "it is the documents, themselves, that have been

requested, and their retrieval requires a search, not research." Id. at 516.

      Here, the trial court's order required defendants to supply plaintiffs with

requests 38, 39, 41-43, 46-48, 51 and 53-57. Defendants originally provided

responses only to 37, 40, 44, 45, 49 and 50. We affirm the trial judge's decision

in this respect. The judge correctly denied plaintiffs' requests 1 to 36, 52, and

58 in the original order, and in the order denying plaintiffs' motion for

reconsideration.   This appeal only addresses the above thirty-eight denied

requests. The trial judge did not provide analysis on each individual request and

instead examined them as a whole, occasionally focusing on the language of

specific requests. Each of the requests should have been considered a separate

OPRA request.

                                        III

      Requests 1, 3, 5, 7, 14, 18, 19, 22 and 23 begin with the following

language: "Records of meetings (defined as physical or digital calendars,

minutes or notes taken during such meeting by any participant(s), or memoranda

summarizing such meeting and/or actions to be taken as a result of such


                                                                           A-1810-16T3
                                       17
meeting)." Requests 1 and 3 seek records, as defined above: "sent by, received

by or participated in" by named employees of the Port Authority and " any Port

Authority Commissioner, officer or other employee(s), outside contractor(s) or

any non-Port Authority personnel, concerning the provision of Aircraft Rescue

Fire Fighting . . . services at Port Authority operated facilities" from as early as

2009. (Emphasis added). Although plaintiffs provide a subject matter, albeit a

broad one, the request seeks records of meetings between the named individuals

and any Port Authority or non-Port Authority personnel. This is potentially an

excessively large number of people. It is also unclear how defendants can be

considered custodians of documents in the possession of "non-Port Authority

personnel." These requests would require the records custodian to interpret the

meaning of "concerning the provision of Aircraft Rescue Fire Fighting . . .

services."   Plaintiffs do not define the term "concerning," rendering these

requests akin to requests for "information generally," rather than specific,

identifiable records. See Burke, 429 N.J. Super. at 176-77. These types of

requests for documents are not easily searchable by the records custodian and

leave unclear how the custodian is expected to discern what "actions . . . [were]

taken as a result of such meeting[s]."




                                                                            A-1810-16T3
                                         18
      Requests 5 and 7 reflect similar flaws.      Request 5 seeks records of

meetings "sent by, received by or participated in" by a named individual and

"any employee of the Federal Aviation Administration between January 1, 2009

and the date of this request." Requests 7 seeks records of meetings "sent by,

received by or participated in" by a named individual and "any employee or

member of the Congress of the United States of America, including any member

of the House of Representatives, Senator, staff member of any staff of an

individual member of Congress or any staff member of any Congressional

committee between January 1, 2009 and the date of this request." Neither of

these requests contains a specific subject matter, and both potentially encompass

a massive number of individuals and documents. Requests 5 and 7 thus fall

outside the scope of OPRA. N.J. Builders Ass'n, 390 N.J. Super. at 178.

      Requests 14, 18, 19 and 22 do not include a date restriction. Request 14

seeks records of meetings "participated in by David Garten and any Port

Authority Commissioner, officer or employee, concerning David Garten's

employment with the Port Authority[.]"      (Emphasis added). These records

cannot be obtained through a reasonable search because they are framed as a

"broad-based demand for research and analysis." MAG Entm't, 375 N.J. Super.

at 550.   Requests 18 and 19 seek records of meetings involving a named


                                                                         A-1810-16T3
                                      19
individual and any personnel or non-personnel of the Port Authority, as well as

any individual associated with "Legends Hospitality LLC concerning"

agreements reached with Legends Hospitality LLC dating back to 2011. These

requests contain defects similar to requests 1 and 3 in that they encompass such

a large swath of individuals; they also use the ambiguous "concerning"

language, which would require the custodian to search and analyze other

possibly relevant documents to discern what documents may be within the scope

of plaintiffs' request. Although the request for the "agreements reached with

Legends Hospitality LLC" would be appropriate, requesting records of meeti ngs

"concerning negotiations with, proposals made by or to or agreements reached

with Legends Hospitality LLC" imposes an obligation on the custodian not

sanctioned by OPRA.

      In request 22, plaintiffs seek records of meetings "sent by, received by or

participated in" by three named individuals and any Port Authority personnel

and non-personnel "concerning the construction, financing, leasing, or operation

of Tower 3 of the World Trade Center between January 1, 2009 and the date of

this request." This request is even broader than the previous requests because it

individually names three people instead of one while also including the

"concerning" language accompanied by a similarly broad subject matter. In


                                                                         A-1810-16T3
                                      20
sum, all of plaintiffs' requests for records of meetings (requests 1, 3, 5, 7, 14,

18, 19 and 22) are overbroad, ambiguous, and impose an impermissible burden

on the custodian of records.       Unlike the plaintiff's request in Burke for

"particularized identifiable government records . . . rather than information

generally," plaintiffs' requests here would "require the custodian to conduct

research, or to collect, collate and analyze data." Burke, 429 N.J. Super. at 176-

77. Plaintiffs' requests are also distinguishable from those of the plaintiff's in

Burnett because there, the court found, "it is the documents, themselves, that

have been requested." Burnett, 415 N.J. Super. at 516. Here, plaintiffs' requests

require research, more than just a search, making them materially different from

the requests in Burnett. Ibid. For these reasons, we affirm the trial court's

decision denying these requests.

                                       IV

      Requests 2, 6, 8, 9, 13, 16 and 17 begin with the following language:

"Records of communications (defined as phone logs, telephone billing records,

or cellular phone/text billing records)." Requests 2 and 8 seek records of

communication "sent by, received by or participated in" by a named individual ,

any Port Authority personnel and "any non-Port Authority personnel,

concerning the provision of Aircraft Rescue Fire Fighting . . . services at Port


                                                                          A-1810-16T3
                                       21
Authority operated facilities" as early as 2009. (Emphasis added).        These

requests seek "phone logs, telephone billing records, or cellular phone/text

billing records" "concerning" a specific subject matter, without identifying the

number of possible individuals who fall within its scope. They leave unclear

how the records custodian would be able to discern whether a log or record

"concerned" a specific subject matter. The custodian would also be unable to

discern this information by identifying the individuals involved in the records

or the dates of the records. These requests would require the custodian to

perform an unspecified number of interviews with the named individuals, which

this court has held would "substantially disrupt agency operations."      MAG

Entm't, 375 N.J. Super. at 546; see also N.J. Builders Ass'n, 390 N.J. Super. at

181.

       Requests 13, 16 and 17 are similarly improper under OPRA. Without a

date restriction, request 13 seeks records of communications concerning the

"retention" of a named individual by the Port Authority "sent by, received by or

participated in" by a named individual and any Port Authority employee. The

lack of a date restriction imposes an impermissible burden on the records

custodian to sort through these records without conducting research or

interviews to determine what subject matter was discussed during a specific


                                                                        A-1810-16T3
                                      22
billing record or phone log. Requests 16 and 17 seek records of communications

"sent by, received by or participated in" by a named individual and any Port

Authority personnel or non-Port Authority personnel, as well as any individual

associated with Legends Hospitality LLC, concerning agreements reached with

Legends Hospitality LLC since 2011. This would require the records custodian

to produce these records after consulting with potentially dozens of people, both

Port Authority employees and non-Port Authority employees, to determine what

logs or billing records correspond with the requested subject matter. The trial

court thus properly denied all of plaintiffs' requests for these records of

communications.

                                       V

      Requests 4, 10, 11, 12, 15, 20, 21 and 35 begin with the following

language: Communications (defined as: correspondence, memoranda, electronic

mail or text message). Request 10 seeks "communications" between a named

individual and any member of Congress as well as staff or employees of

Congress since 2009. Request 12 seeks "communications" between the same

individual and any employee of the Federal Aviation Administration since 2009.

These requests contain no subject matter, encompass an exorbitant number of

possible individuals, and do not identify particular documents. These are clearly


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                                      23
requests for information, not documents. Request 11 does not contain a date

restriction and seeks communications "between David Garten and any Port

Authority . . . employee concerning David Garten's employment with the Port

Authority . . . ." This is not a request reasonably searchable by the records

custodian because it would require the custodian to exercise a significant degree

of discretion in deciding what communications "concern" the employment of

David Garten.     It also is not limited to specific individuals; it seeks

communications between Garten and any employee of the Port Authority.

      Requests 4 and 15 seek "communications" between separately named

individuals, and any Port Authority personnel or non-Port Authority personnel

"concerning the provision of Aircraft Rescue Fire Fighting" as early as 2009.

Request 35 seeks "communications" between a named individual and any Port

Authority personnel or non-Port Authority personnel from 2011 "concerning

agreements reached with Legends Hospitality LLC." These requests essentially

mirror the ones in Part I of this opinion, except they request "communications"

that encompass emails and texts instead of records of meetings. While emails

and texts are more easily searchable, these requests lack specificity regarding

the number of individuals involved and the subject matter addressed. Again,

including "any non-Port Authority personnel" substantially expands the possible


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                                      24
pool of potential individuals involved in these "communications," and the

"concerning" language leaves too much discretion to the records custod ian to

decipher what "records" plaintiffs are actually seeking. With respect to request

35, although OPRA permits a request for specific agreements, request 35

becomes overly broad by seeking all correspondence "concerning" any

agreements over a five-year span, without further specificity. This places a

substantial, undue burden upon the records custodian because plaintiffs seek

information rather than requests for documents.

      Requests 20 and 21 are similarly overbroad.            Request 21 seeks

communications "sent by, received by or participated in" by three separately

named individuals and any individual or individuals . . . concerning the

construction, financing, leasing, or operation of Tower 3 of the World Trade

Center between January 1, 2009 and the date of this request." (Emphasis added).

Indeed, this may be the broadest of plaintiffs' requests because other than

including the three named individuals, there are no other limiting identifiers on

the senders or recipients of the correspondence.         Request 21 therefore

encompasses all of their correspondence with any individual "concerning the

construction . . . of Tower 3 of the World Trade Center" over a seven-year span.

This is essentially an "open-ended demand requir[ing] analysis and evaluation


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                                      25
which the agency is under no obligation to provide . . . ." Bent, 381 N.J. Super.

at 40.   Request 20, although narrower, is similar to previously discussed

improper requests because it seeks communications of a named individual and

"any individual . . . employed by or acting as a representative of Legends

Hospitality LLC concerning negotiations with, proposals made by or to or

agreements reached with Legends Hospitality LLC" within a four year span.

Instead of requesting specific agreements regarding specific topics, plaintiffs

seek general information "concerning" potentially dozens of agreements within

a large span of time. These types of requests are overbroad under OPRA.

      Before we address and discuss the next category of requests, it is

necessary to address request 23, which seeks communications, records of

communications and records of meetings

            [s]ent by, received by or participated in by the
            following individuals with any and all officers, staff
            and/or members of the Board of Commissioners
            concerning Memoranda of Agreement/Letters of
            Agreement executed by Paul Nunziato and Patrick Foye
            on or about May 9, 2013 and released in Port Authority
            Freedom of Information Request Number 15227 . . . .

Request 23 then lists twenty-two individuals. We conclude this exemplifies the

kind of "[w]holesale request[] for general information" that must be "analyzed,

collated and compiled" by defendants, as well as an "open-ended search[] of


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                                      26
[defendants'] files." MAG Entm't, 375 N.J. Super. at 549. This is the type of

request that substantially disrupts an agency's operations. "[I]f a request would

substantially disrupt agency operations, the custodian may deny it and attempt

to reach a reasonable solution that accommodates the interests of the requestor

and the agency." MAG Entm't, 375 N.J. Super. at 546 (citing N.J.S.A. 47:1A-

5(g)). Although not explicitly defined, "[d]isruption may simply be inferred

from the breadth, generality and complexity of the request at issue, which

'necessitates work by [agency] employees that is neither assigned by the agency

nor envisioned by OPRA.'" Spectraserv, Inc., 416 N.J. Super. at 579-80 (quoting

N.J. Builders Ass'n, 390 N.J. Super. at 181).      "A request that . . . demands

assessment and preliminary inquiry . . . is sufficient to give rise to an inference

that compliance will 'disrupt agency operations.' Disruption may be inferred

because a request . . . necessitates work by [the agency] that is neither assigned

by the agency nor envisioned by OPRA." N.J. Builders Ass'n, 390 N.J. Super.

at 181.

      Here, request 23 would require the records custodian to search through

correspondence, emails, texts, phone logs, billing records, calendars, minutes

and notes of meetings of twenty-two individuals, find the relevant records and

respond to plaintiffs within seven business days. Although plaintiffs attempted


                                                                           A-1810-16T3
                                       27
to limit the subject matter to records that concern agreements executed by

specific people on a specific date, the scope and breadth of the records request

still falls outside the purview of OPRA.

                                        VI

      Requests 24, 25 and 26 begin with the following language:

             Records Contracts or written agreements governing any
             period between January 1, 2008 and December 31, 2020
             between the Federal Government of the United States
             of America, including any branch or agency thereof,
             and the Port Authority providing for financial aid,
             provision of equipment and/or reimbursement of Port
             Authority expenses, whether for personnel, outside
             contractors or equipment, related to the provision of
             public safety and/or security at Port Authority facilities
             ....

      Request 25 also seeks contracts between the Port Authority and the State

of New York while request 26 seeks contracts between the Port Authority and

the State of New Jersey. These requests seek: "records [of] contracts or written

agreements" for three different kinds of equipment along with "related

equipment and staffing/training," "records [of] contracts or written agreements"

for police canines along with "related equipment and staffing/training s" and

"records [of] contracts or written agreements" related to officers assigned to the

"Transportation Security Agency," Aircraft Rescue and Firefighting operations,

and security for political figures.

                                                                          A-1810-16T3
                                        28
      Similar to the requests we addressed and discussed in Part V of this

opinion, these requests would also substantially disrupt agency operations.

Although circumscribed to specific subjects, the requests seek records of

contracts or agreements between the Port Authority and three different

governments encompassing a twelve-year span. These are the type of requests

from which disruption may be inferred because of "the breadth, generality and

complexity of the request;" that would "necessitate[] work by [agency]

employees that is neither assigned by the agency nor envisioned by OPRA."

Spectraserv, Inc., 416 N.J. Super. at 579-80 (quoting N.J. Builders Ass'n, 390

N.J. Super. at 181). These requests are also ambiguous because they ask for

"Records Contracts or written agreements."      This language leaves unclear

whether plaintiffs seek the "contracts or written agreements" themselves or

whether they seek records of the contracts or written agreements. Plaintiffs

could have easily narrowed the request; these broad, complex requests would

substantially disrupt agency operations. Under these circumstances, defendants

were not required to provide responses to these requests.

                                      VII

      We now review the trial court's decision to deny plaintiffs' motion for

reconsideration of the ruling that rejected requests 27-34, 36, 52 and 58. The


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                                      29
court found these requests were properly denied by defendants because they

were overbroad. We conclude the trial judge erred in upholding defendants'

denial of requests 29, 31-34 and 58, and affirm the judge's decision to deny

request 30.

      Requests 33 seeks "written reports and recommendations made by the

Chertoff Group to the Port Authority of New York and New Jersey" from 2009.

Request 34 seeks "reports, memos, and written and electronic communication[s]

generated by the Chertoff Group regarding any candidates who applied for the

position of Chief Security Officer issued between January 1, 2012 and December

31, 2012." Both of these requests were proper under OPRA. Request 33 seeks

specific identifiable documents in the form of reports generated by the Chertoff

Group. The absence of a specific subject matter does "not render [the] request

a general request for information obtained through research." Burnett, 415 N.J.

Super. at 513-14. Request 34 seeks similar documents, limited to documents

generated by the Chertoff Group, and limits the subject matter and period to one

year. These records, generated by one sender regarding a specific position,

limited to a short time period, should be readily accessible and do not require

research on the part of the records custodian.




                                                                        A-1810-16T3
                                      30
      Request 58 was also improperly denied. In this request plaintiffs seek

"applications for grants, assistance, loan guarantees, or reimbursement of

expenses submitted by the Port Authority . . . to any level or agency of

municipal, state or federal government during the period January 1, 2008 and

the date of this request."   This is a request for specific identifiable documents

that should be accessible to the records custodian. Although request 58 spans a

wide range of time, plaintiffs request the documents themselves, not general

information. This does not require the custodian to do research or analyze data.

It is similar to the requests for contracts, invoices and retainer agreements

already turned over by defendants in requests 37-57.

      Requests 29, 31 and 32 seek similar types of documents. They all seek

"electronic mail" between two specifically named individuals over a one year or

two year timespan. Although they do not contain specific subject matter, the

requests would not necessarily require the records custodian to conduct research.

The custodian can access responsive documents by searching the email accounts

of the named individuals and print the correspondence between the two email

accounts. Because the requests seek emails for at least a one-year timespan, this

could involve a substantial amount of documents. The lack of subject matter is

concerning, but since the requests are for readily accessible documents limited


                                                                          A-1810-16T3
                                       31
by sender/recipient, they constitute proper access requests under OPRA. In

reaching this conclusion, we are mindful to construe any shortcoming in the

request "in favor of the public’s right of access." N.J.S.A. 47:1A-1.

      Request 27 seeks "written and email communications from Arlene

Grampp regarding asset forfeiture for the time period of January 1, 2010 to

January 1, 2016."

Request 28 seeks the same types of communications "from Martin Gleeson

regarding Port Authority Police Sergeants' promotions and the Sergeants'

Supervisory Development course from October 1st, 2015 through November

17th, 2015." Request 28 is narrower than request 27 because it limits the

documents based on the sender, includes a detailed subject matter, and limits the

timespan of communications to approximately one month. Request 27 contains

similar features, but significantly expands the timespan of communications to

six years. However, since these requests are for emails from a specific sender

or recipient that can be searched using a subject phrase, they most likely can be

electronically identified and retrieved with relative ease. Absent countervailing

evidence showing the requests as framed impose an undue burden on the

custodian, we conclude they are both proper requests under OPRA.




                                                                         A-1810-16T3
                                      32
       Requests 36 and 52 present similar characteristics. Request 36 seeks

"written and email communications from Thomas Belfiore, David Garten, or

Martin Gleeson containing the terms 'Paul Nunizato', 'PBA,' 'Port Authority

PBA', 'Paul' or 'Nunizato' from November 2, 2015 through November 25, 2015."

Plaintiffs provided defendants keywords to search, and limited the senders and

timespan to less than one month. Request 52 seeks the same communications

"from Executive Director Patrick Foye from January 1, 2014 through December

31, 2016 containing the terms or phrases 'PBA', 'Port Authority PBA', 'Paul

Nunziato', 'Nunziato', 'O'Brien', 'Michael O'Brien', 'Pope Francis', 'Pope', 'FOI',

'Freedom of Information', or 'OPRA'. Similar to request 36, request 52 is limited

to these communications that contain certain search terms. Although the period

is larger, this request is reasonably tailored and should have been upheld by the

trial court.

       We reach a different conclusion with respect to request 30. Because the

language used by plaintiffs in this request is far less clear, the trial judge

properly held the custodian was not obligated to respond under OPRA. Request

30 seeks "written and email communications and calendars referencing meetings

between Dr. Edward Bennett . . . and Lt. Timothy McGovern . . ., Mr. Martin

Gleeson . . . and any other Port Authority employees involved in the case


                                                                           A-1810-16T3
                                       33
regarding Police Officer Steven Napoli JFK and Byron Miller JFK between

August 21, 2014 to the date of this request." This would require the records

custodian to determine the communications, including calendars, that reference

meetings between three individuals and any other Port Authority employees

"involved in the case" regarding two individuals. The custodian would also have

to determine what documents plaintiffs are seeking. The trial judge properly

upheld the denial of request 30 because it would require the custodian to perform

far more than just a search for documents.

                                      VIII

      Finally, we address the amount of counsel fees the trial court awarded

related to those requests in which the court found plaintiffs were the prevailing

party. The trial judge awarded plaintiffs $5,400 in counsel fees. Plaintiffs argue

the judge used an "overly rigid and simplistic mathematical approach" to reduce

by seventy-six percent the amount of counsel fees requested. The judge found

plaintiffs prevailed with respect to requests 38, 39, 41-43, 46-48, 51, 53-57, and

awarded counsel fees incurred in the enforcement of those requests. The judge

rejected plaintiffs' application for an award of counsel fees in the amount of

$46,196.88, which the judge found was "calculated at an hourly rate of $495.00

for 56.25 hours of work performed plus a 30% lodestar enhancement."


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                                       34
      The judge found the number of hours plaintiffs' counsel claimed they

devoted litigating the case were "excessive and unreasonable" because: (1)

plaintiffs only prevailed in fourteen of the fifty-eight requests; and (2) the issues

before the court were not novel. Under this approach, the judge found plaintiffs

prevailed to enforce only 24.1% of the total requests and reduced the number of

billable hours to 13.5. The judge then multiplied 13.5 by an hourly rate of

$400.00 to reach $5,400. The judge also rejected plaintiffs' counsel's request

for a lodestar enhancement.

      Pursuant to N.J.S.A. 47:1A-6, if "[a] requestor . . . prevails in any

proceeding [the requestor] shall be entitled to a reasonable attorney’s fee." A

requestor is entitled to attorney's fees if there is: (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 (quoting Singer v. State, 95 N.J. 487, 494 (1984)). We review awards of

counsel fees under an abuse of discretion standard. 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, 444 (2001)).


                                                                             A-1810-16T3
                                        35
       To determine the amount of counsel fees, the court calculates 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). The court considers the following

factors in calculating the "lodestar":

            (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; [and] (8) whether the
            fee is fixed or contingent.

            [Id. at 387 (citing R.P.C. 1.5(a)).]

      The court may reduce the lodestar "if the level of success achieved in the

litigation is limited as compared to the relief sought." New Jerseyans for a Death

Penalty Moratorium v. New Jersey Dep't of Corr., 185 N.J. 137, 154 (2005)

(quoting Rendine v. Pantzer, 141 N.J. 292, 336 (2005)). However, it should not

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

                                                                          A-1810-16T3
                                         36
(1983)).    Our Supreme Court has also cautioned against employing a

"mathematical approach [that compares] the total number of issues in the case

with those actually prevailed upon' because such a ratio provides little aid in

determining what is a reasonable fee in light of all the relevant factors." New

Jerseyans for a Death Penalty Moratorium, 185 N.J. at 154, (internal citations

omitted). The Court also rejected an approach that relies "on percentages of

documents obtained to determine whether a reduction of the lodestar is

appropriate in OPRA cases." Id. at 155 Instead, the Court directed trial judges

to

            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 the
            OPRA was vindicated by the litigation. Further . . . the
            court also should consider the factors enumerated in
            RPC 1.5(a), which include the novelty of the issue, the
            time and labor required to conclude the matter, and
            whether the representation precluded the attorney from
            undertaking other employment opportunities. If, after
            consideration of all the relevant factors, the court
            concludes that the requester has obtained a high degree
            of success, the requester should recover the full lodestar
            amount.

            [Ibid. (internal citations omitted).]

      Here, plaintiffs argue the trial judge's reliance on a mathematical formula

to determine plaintiffs' degree of success, and thereafter apply the ratio produced


                                                                           A-1810-16T3
                                       37
by this exercise to determine the amount of counsel fee plaintiffs' are entitled to

receive as a prevailing party, is precisely the approach the Supreme Court

rejected in New Jerseyans for a Death Penalty Moratorium. We disagree. The

trial judge carefully analyzed plaintiffs' fee application and concluded it

improperly contained time spent on items that were found outside the scope of

OPRA.     The judge also considered the fact that the parties had previously

litigated almost identical requests and "[m]any of plaintiffs' submissions were

identical to those in previous pleadings and briefs." The judge analyzed these

factors and then calculated the lodestar based on the percentage of successful

requests. Although the judge used a mathematical approach, she also conducted

a qualitative analysis using these factors and considered whether the requests

furthered the purpose of OPRA. We conclude the judge was entitled to weigh

heavily the fact that plaintiffs were successful only in fourteen out of fifty-eight

requests, and that these requests were almost identical to ones previously denied.

The court's approach did not constitute an abuse of discretion or an erroneous

application of law.

      However, because eleven requests were improperly denied, we remand the

matter to the trial judge to adjust the award of attorney's fees accordingly. The




                                                                            A-1810-16T3
                                        38
judge must also determine a reasonable award of counsel fees related to

plaintiffs' success in this appeal.

      Affirmed in part, reversed in part, and remanded for the trial court to

determine an award of counsel fees to plaintiffs consistent with this opinion.




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                                      39
