MARC Helps Win Legal Fees From NJIT in FBI Records Suit

The New Jersey Institute of Technology must pay attorney’s fees to a journalist and his publicist in a public-records suit, the Third Circuit ruled on Aug. 14, 2019.

Pulitzer-Prize winning author Daniel Golden and Tracy Locke requested the documents for a book Golden was writing, Spy Schools: How the CIA, FBI and Foreign Intelligence Secretly Exploit America’s Universities. The pair filed state Open Public Records Act (OPRA) requests for e-mails between NJIT officials and the FBI and CIA. NJIT said many of the records—mostly from the FBI to NJIT—were barred from disclosure because the FBI told the school not to release them, and the school agreed.

Golden and Locke, represented by Katie Townsend and Adam Marshall of The Reporters Committee for Freedom of the Press and Bruce S. Rosen of McCusker, Anselmi, Rosen & Carvelli, P.C. of Florham Park, N.J., and New York City, brought suit in state court under OPRA to release the documents. But NJIT then brought in the FBI as a third-party defendant, and the FBI removed the case to federal court in Newark, N.J.

However, before the case was actually litigated in federal court, the FBI agreed to review the documents and ultimately released more than half those sought, mostly unredacted. When Golden and Locke then sought legal fees, U.S. District Magistrate Judge Leda Dunn Wettre denied the motion, finding no connection between the suit and the records’ release. District Judge Madeline Arleo upheld that decision.

But the Third Circuit panel reversed, relying on a state Supreme Court ruling, Mason v. City of Hoboken, which held that plaintiffs are entitled to attorney’s fees if there is a nexus between their litigation and the relief achieved. “OPRA makes clear that a records custodian—not a third-party—has the duty to decide whether to allow or deny access to records,”

The panel added, “That NJIT withheld records at the behest of the FBI does not afford it a basis to abdicate its role as the records custodian.”

Golden and Locke sought $197,829 in attorney’s fees before the appeal, and the court remanded the matter for the fee-award calculation.

Said Rosen: “This precedential opinion clarifies that OPRA defendants can’t hide behind a law enforcement agency, and must make an OPRA determination on their own and on the merits.”

Click here for the decision in the case, Daniel Golden, Tracy Locke v. New Jersey Institute of Technology, No. 18-3150, and here for a sample of media coverage of the ruling.

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