OPRA Fee-Application Tips

One of the strengths of OPRA is that it is a fee-shifting statute, which means that if an OPRA requestor wins their case in Court, the public entity must pay the requestor’s reasonable legal fees and costs.  This post discusses tips and potential pitfalls in fee applications.

All fee applications in OPRA cases must provide the information listed in Rule 4:42-9 and Rule of Professional Conduct 1.5.  Fee applications that do not contain, or at least address, all of the Rule 4:42-9 and R.P.C. 1.5 information may be denied without prejudice.

Fee applications must show that an attorney’s rate is reasonable.  In our experience, there are many ways to prove the reasonableness of an attorney’s hourly rate, including: (1) the rates regularly and customarily charged by the attorney to their clients; (2) the rates charged by other attorneys in similar cases; (3) court decisions regarding prevailing rates; (4) affidavits or certifications of attorneys not involved in the case supporting the requested hourly rate; and (5) rate surveys.

Fee applications must also address the relevant legal community.  In our matters, we tend to identify the relevant legal community as statewide, because attorneys who represent plaintiffs in OPRA cases tend to practice state-wide and are not limited to certain counties.

Finally, fee applications should address the reasonableness of the time charges.  All time charges and costs must be itemized.  Itemizations should be presented in chronological order.  Block-billing should be avoided.  If one time entry contains several unrelated or marginally related tasks, the amount of time spent on each task should be itemized:  Draft letter to Court (.2); conference with client (.2).

The application should explain why charges are reasonable.  If several attorneys worked on a case, explain why the complexity of the case warranted that level of attention.  If a substantial amount of time was spent on legal research, discuss what justified the research.  If the other side put up a vigorous defense that required more work than an ordinary OPRA case, point that out.

Finally, and perhaps most importantly, are the deadlines for filing fee applications.  Absent a court order, fee applications in OPRA cases must be filed within 20 days after entry of final judgment in the trial court, or within 10 days after an appeal.  Absent leave of court, fee applications should be directed to the Court before which the work was performed.