FBI seal located outside the J. Edgar Hoover FBI Building in downtown Washington, D.C.

In 2015 an acclaimed journalist and his publicist sought documents under New Jersey’s Open Public Records Act from the New Jersey Institute of Technology, and were initially denied, following intervention by the Federal Bureau of Investigation, due to the supposedly sensitive nature of those documents.

The duo filed suit and ultimately obtained most of the documents, which NJIT voluntarily handed over, but their bid to recoup attorney fees under OPRA failed.

But on Wednesday, the U.S. Court of Appeals for the Third Circuit in a precedential decision reversed the lower court and ruled that the writer and publicist are entitled to fees totaling $197,829.50.

The plaintiffs, Pulitzer Prize-winning journalist Daniel Golden and publicist Tracy Locke, went up against NJIT and Clara Williams, the school’s custodian of records, as well as the FBI, which had originally denied their requests for records and documents for Golden’s forthcoming book examining foreign and domestic intelligence activities at American universities, according to the decision.

Golden and Locke said that NJIT, before the lawsuit was filed, withheld thousands of pages of records pursuant to OPRA exemptions, only to abandon its resort to those exemptions by releasing the records after their lawsuit was filed.

NJIT counterargued that it was the FBI that directed NJIT to withhold the records. That directive, NJIT contends, rendered its actions reasonable and permissible under OPRA.

“We disagree with both the district court’s conclusion and its misplaced focus on reasonableness,” wrote Third Circuit Chief Judge D. Brooks Smith in the opinion.

“Under the catalyst theory, as adopted by the Supreme Court of New Jersey, plaintiffs are entitled to attorneys’ fees if there exists ‘a factual causal nexus between [the] litigation and the relief ultimately achieved’ and if ‘the relief ultimately secured by plaintiffs had a basis in law,’” he said, pointing to that court’s 2008 decision in Mason v. City of Hoboken. ”Golden and Locke’s lawsuit was the catalyst for the production of documents and thereby satisfied the Mason test.”

“That NJIT withheld records at the behest of the FBI does not afford it a basis to abdicate its role as the records custodian,” Smith wrote, joined by Judges Michael Chagares and Joseph A. Greenaway Jr. “NJIT alone bore the burden of allowing or denying access to the requested records. With that burden comes the attendant responsibility of paying attorneys’ fees to a prevailing plaintiff.”

Katie Townsend of the Reporters Committee for Freedom of the Press in Washington, D.C., argued for the plaintiffs, with Bruce S. Rosen of McCusker, Anselmi, Rosen & Carvelli in Florham Park.

“We are very pleased with the Third Circuit’s decision,” Townsend said in an email. “The court made clear that a state government entity like NJIT cannot abdicate its responsibilities under the New Jersey Open Public Records Act, including its responsibilities to pay a successful requester’s attorney’s fees, to a third party or another government agency.”

She called it “an important ruling for all members of the news media and the public who request access to government records in New Jersey.”

Gary Potters of Potters & Della Pietra in Fairfield argued for NJIT and the FBI. He could not be reached for comment.

According to the decision, Golden and Locke were conducting research for Golden’s upcoming book, “Spy Schools: How the CIA, FBI, and Foreign Intelligence Secretly Exploit America’s Universities.”

As part of their research, the two invoked multiple open records laws to request documents from several public universities, NJIT included, from April to August 2015.

Many of NJIT’s documents that were responsive to the OPRA requests originated with the FBI and were subject to prohibitions on public dissemination, the court said.

NJIT’s custodian of records, Williams, sought advice from the FBI on the release of the documents. In no uncertain terms, according to the decision, the FBI, after reviewing the materials, directed NJIT to withhold most of the records, and Williams obliged.

Golden and Locke then filed suit in Essex County Superior Court.

The case removed to federal court, and NJIT and the FBI agreed to reexamine the previously withheld records. As a result of that review, NJIT produced thousands of pages of documents it had formerly deemed exempt, according to the decision.

Golden and Locke then moved for recouping their attorney fees under OPRA, which mandates a fee award for prevailing plaintiffs.

U.S. District Judge Madeline Cox Arleo of the District of New Jersey, adopting a magistrate judge’s recommendations, denied the fee motion, holding that no nexus existed between the lawsuit filed by Golden and Locke and the eventual release of records. She said she was persuaded by NJIT’s position that it had acted reasonably under the FBI’s guidance.

“Under OPRA, ‘[a] requestor who prevails in any proceeding shall be entitled to a reasonable attorney’s fee,’” Smith wrote in the reversal. “A requestor is a so-called ‘prevailing party if he or she achieves the desired result because the complaint brought about change (voluntary or otherwise) in the custodian’s conduct.’”

Under Mason, Smith wrote, ”A requestor who prevails in any proceeding shall be entitled to a reasonable attorney’s fee. Moreover, if a records custodian ‘knowingly and willfully violates [OPRA] … and is found to have unreasonably denied access under the totality of the circumstances,’ she is subject to a range of civil penalties, as well as appropriate disciplinary action.”

The court said NJIT allowed access to the records only after a lengthy, cooperative process overseen by the magistrate judge.

“It is clear, then, that Golden and Locke’s lawsuit was the catalyst for the release of records,” Smith wrote. “To the extent NJIT’s withholding was involuntary due to the FBI’s directives, such involuntariness is irrelevant to our inquiry under the statute.

“These authorities, taken together, lead us to one conclusion—it is of no moment that the FBI directed NJIT to withhold the disputed records,” Smith wrote.

“Where NJIT went astray was in failing to exercise independent judgment and, instead, unquestioningly obeying the FBI’s orders to withhold the records,” Smith added. “NJIT is responsible for that choice and must bear the consequences, i.e., paying attorneys’ fees.”

On April 8, 2015, Golden submitted the first OPRA request to Williams, seeking years of emails between NJIT and federal agencies, including the FBI. NJIT located more than 1,400 emails, which Williams began to review and print. During Williams’ review, she discovered that many of the emails contained FBI dissemination controls that warned “do not disclose,” or “proprietary and confidential.” Williams believed that these emails likely fell within OPRA’s exemption for third-party confidential information, and she notified the FBI, which told Williams that it, not NJIT, “is cloaked with full and exclusive authority to determine whether or not any such email is subject to disclosure,” according to the decision.

Williams’ response to Golden’s first OPRA request, producing 540 pages of records and withholding 3,949 pages, cited several OPRA exemptions and included a letter from the FBI memorializing its directive to withhold the records.

This process repeated itself two more times as Locke submitted second and third OPRA requests, the court said.

Once the suit was filed, the Essex County Superior Court issued a show cause order to NJIT, and although the FBI initially told NJIT it would intervene in the lawsuit, the bureau opted not to do so. As a result, NJIT filed a third-party complaint against the FBI for indemnification in the event the court awarded Golden and Locke attorney fees, according to the decision. The FBI then removed the case to federal court and counterclaimed against NJIT, seeking declaratory and injunctive relief to prevent NJIT from releasing responsive records to Golden and Locke.

The court stayed discovery for a status conference, and the parties reached an agreement, whereby the FBI ultimately redacted and returned the documents to NJIT, which turned over the redacted documents to Golden and Locke. Golden and Locke opted not to challenge the remainder of the withheld documents.

The fee issue was then litigated, beginning in late 2017.