Bayonne and The Jersey Journal are back in court.
After the yearlong fight over access to a settlement agreement in a police brutality lawsuit, the newspaper is asking that $112,000 in legal fees be awarded and that a civil penalty be imposed because of the city's "intentional violation'' of the state Open Public Records Act.
"It is well settled that a municipality's settlement agreement is absolutely subject to disclosure under OPRA and that municipalities cannot – as a matter of law – keep such records secret through non-disclosure agreements,'' Justin Quinn, a partner in the Robinson Miller firm and counsel for The Jersey Journal, wrote in papers submitted to Superior Court Judge Daniel D'Alessandro.
The Open Public Records Act says prevailing parties in OPRA disputes shall be entitled to reasonable attorney fees, but Bayonne argued in court on Friday that there is no prevailing party here. Yes, The Jersey Journal ultimately received a copy of the settlement agreement it sought through OPRA but because the document contained limited redactions, no one can be considered the prevailing party, Bayonne's attorney, Daniel M. Santarsiero, argued.
"The request was for the entire settlement agreement," Santarsiero said. "The Jersey Journal did not obtain exactly what they asked for."
Judge D'Alessandro summarized the numerous state and federal court actions that took place before Bayonne finally released the settlement agreement on March 16 and noted that The Jersey Journal is the party that asserted the public's right to know under OPRA.
"But for The Jersey Journal, the settlement would not have been released," the judge told Santarsiero. "If they weren't the prevailing party, who was?"
"It doesn't sound like a draw,'' D'Alessandro said.
The $1.5 million-plus settlement agreement ended a federal lawsuit between Bayonne and members of the Walsh family, who said that when police arrested Brandon Walsh at their home in 2013 they beat him with a flashlight and pepper-sprayed members of the family.
The Jersey Journal filed an OPRA request for the document in March 2017, a request Bayonne denied. For the next year, both sides appeared in state and federal courtrooms as Bayonne and attorneys for the city's insurer, the New Jersey Intergovernmental Insurance Fund, argued that the document was exempt from the state's public-records law. Bayonne finally released the settlement agreement on March 16.
Quinn noted to D'Alessandro that Bayonne lost at every court level, including when the New Jersey Supreme Court decided not to hear the city's appeal.
"I do not understand how we could not be a prevailing party," Quinn said. "In addition to receiving precisely what we requested in both our pre-litigation letter and verified complaint, we succeeded in having each of Bayonne's numerous appeals denied."
Asked by the judge to provide case law bolstering his argument, Santarsiero was unable to do so.
Santarsiero also argued that the legal fees submitted by the newspaper are not reasonable. The Jersey Journal said it worked 298 hours on the case. About 13 of those, Santarsiero argued, represent either duplicative work or work done by multiple legal partners that could have been handled by one, but he was unable to find in his notes exactly how many hours he wanted to dispute.
D'Alessandro asked Santarsiero to submit a letter by Wednesday listing all the hours Bayonne believes are unreasonable. The Jersey Journal will then have until Monday to respond and D'Alessandro indicated he would rule shortly after that.
Walter Luers, an attorney who has filed hundreds of lawsuits regarding OPRA matters, told The Jersey Journal it's a "common tactic" for public agencies to attempt to withhold payment of legal fees by arguing there is no prevailing party.
Luers has examined all of the court records in the case of the Walsh settlement and critiqued Santarsiero's argument.
"That's not a draw. That's not a stalemate," he said. "The Jersey Journal won. ... I don't even think it's a close case."