Business & Practice

Journalists Win Attorneys’ Fees After FBI Records Fight

Aug. 14, 2019, 1:51 PM

A journalist and a publicist who went to court to fight for access to records about the Federal Bureau of Investigation are entitled to attorneys’ fees, a federal appeals court ruled Aug. 14.

Pulitzer Prize-winning journalist Daniel Golden and publicist Tracy Locke were conducting research for the book Spy Schools: How the CIA, FBI, and Foreign Intelligence Secretly Exploit America’s Universities. They submitted a series of records requests to the New Jersey Institute of Technology under New Jersey’s Open Public Records Act. Most of the documents they sought originated from the FBI.

NJIT’s custodian of records asked the FBI to advise whether the university should allow them access to the records. The FBI directed NJIT to withhold most of the records, and the university followed suit, claiming the documents were exempt from disclosure.

Golden and Locke sued. While the case was ongoing, NJIT and the FBI agreed to reexamine the withheld records. The school ultimately agreed to release thousands of pages of documents.

A lower court was wrong to deny attorneys’ fees from NJIT to Golden and Locke under the OPRA, which mandates a fee award for prevailing plaintiffs, the U.S. Court of Appeals for the Third Circuit ruled.

The district court was mistaken in relying on NJIT’s position that it had acted reasonably in following the FBI’s direction, the appeals court said. “That NJIT withheld records at the behest of the FBI does not afford it a basis to abdicate its role as the records custodian,” the court said. The school alone “bore the burden of allowing or denying access to the requested records,” and with that burden comes the responsibility of paying attorneys’ fees to a prevailing plaintiff, the court said.

The New Jersey Supreme Court has explained that OPRA plaintiffs are entitled to attorneys’ fees if there’s a “factual causal nexus” between the litigation they bring and the relief ultimately achieved, the court said. Here Golden and Locke’s lawsuit was the catalyst for NJIT to abandon its position that OPRA exemptions applied and release the requested records, so they are entitled to the fees, the court reasoned.

The opinion was written by Chief Judge D. Brooks Smith and joined by Judges Michael Chagares and Joseph Greenaway, Jr.

Golden and Locke were represented by The Reporters Committee for Freedom of the Press and McCusker Anselmi Rosen & Carvelli. NJIT was represented by Potters & Della Pietra LLP.

The case isGolden v. New Jersey Inst. of Tech., 3d Cir., No. 18-03150, 8/14/19.

To contact the reporter on this story: Brian Flood in Washington at bflood@bloomberglaw.com

To contact the editor responsible for this story: Jo-el J. Meyer at jmeyer@bloomberglaw.com

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