SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3929-19

ELENA GONZALEZ,

Plaintiff-Respondent,

v.

RICK CUTTRELL, Custodian of

Records for the Township of Neptune,

Defendant,

and

TOWNSHIP OF NEPTUNE,

Defendant-Appellant.

________________________________

Argued October 14, 2021 – Decided October 28, 2021

Before Judges Haas and Mawla.

On appeal from the Superior Court of New Jersey, Law 

Division, Monmouth County, Docket No. L-0461-18.

Michael R. Burns argued the cause for appellant 

(Marmero Law, LLC, attorneys; Michael R. Burns, on 

the briefs.)

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the 

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
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Donald F. Burke argued the cause for respondent (Law 

Office of Donald F. Burke, attorneys; Donald F. Burke 

and Donald F. Burke, Jr., on the brief).

PER CURIAM

Defendant Township of Neptune appeals from the Law Division's May 11, 

2020 order granting plaintiff Elena Gonzalez's application for counsel fees and 

costs following the Township's denial of her request for an investigation report 

under the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, and the 

common law. We affirm substantially for the reasons set forth in the 

comprehensive written decisions rendered by Judge Lisa P. Thornton on August 

1, 2018, May 9, 2019, and May 11, 2020.

The parties are fully familiar with the procedural history and facts of this 

matter and, therefore, we need only recite the most salient details here. 

Beginning in 2006, the Township employed plaintiff as a police officer. In 2013, 

plaintiff and a second officer filed complaints against the Township with the 

Equal Opportunity Employment Commission, alleging discrimination, sexual 

harassment, and a hostile work environment. In response, the Township retained 

Gregory K. Turner Consulting and Investigations L.L.C. (Turner) to 

independently investigate plaintiff's claims. Plaintiff cooperated with the 

investigation.
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In January 2014, Turner completed its investigation and prepared a written 

"investigation report." The Township refused to give plaintiff a copy of the 

report.

On January 18, 2018, plaintiff submitted a written request to the 

Township's Custodian of Records for a copy of Turner's investigation report 

under OPRA and the common law. On January 24, 2018, the Custodian denied 

plaintiff's request. In his denial letter, the Custodian stated that the report was 

exempt from disclosure under OPRA because it concerned a sexual harassment 

complaint. See N.J.S.A. 47:1A-1.1. The Custodian also alleged the report 

constituted attorney work product. The Custodian did not address plaintiff's 

common law claim.

On February 6, 2018, plaintiff filed a complaint against the Township and 

the Custodian. Plaintiff again asserted she was entitled to access the Turner 

report under OPRA and the common law. She also sought counsel fees and 

costs. 

Defendants filed an answer to the complaint, and Judge Thornton 

scheduled oral argument for April 2, 2018. However, shortly before the hearing 

date, the parties notified the court they were attempting to resolve the case. On 

April 10, 2018, the parties executed a consent order under which the Township 
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agreed to give plaintiff a copy of the Turner report with redacted names and 

personal identifiers. 

However, the parties did not resolve the issue of plaintiff's request for 

counsel fees. Plaintiff sought fees under "the catalyst theory" recognized by our 

Supreme Court in Mason v. City of Hoboken, 196 N.J. 51, 57 (2008). 

In our recent decision in Gannett Satellite Info. Network, LLC v. Twp. of 

Neptune, 467 N.J. Super. 385, 411-12 (App. Div. 2021), we summarized the 

Court's holding in Mason as follows:

In [Mason,] . . . the Court considered whether the 

plaintiff was entitled to attorney's fees when a 

government agency voluntarily disclosed records after 

the plaintiff filed a lawsuit claiming a right to access to 

the records under OPRA and the common law. The 

Court adopted the "catalyst theory" and held that 

requestors are "entitled to attorney's fees under OPRA 

. . . when they can demonstrate: (1) 'a factual causal 

nexus between [the] litigation and the relief ultimately 

achieved'; and (2) 'that the relief ultimately secured by 

[the requestor] had a basis in law.'"

[Id. at 411 (second, third, and fourth alterations in 

original) (quoting Mason, 196 N.J. at 76).]

We then noted that the Mason Court 

commented that "[t]he parties ha[d] not addressed at 

length whether the question of attorney's fees merits 

different treatment in an action brought under the 

common law[,]" and that "[a]bsent an apparent, 

theoretical basis for such a distinction, we conclude that 
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the catalyst theory applies to common law suits as 

well."

[Ibid. (alterations in the original) (quoting Mason, 196 

N.J. at 79).]

The parties in Gannett disagreed whether this language in Mason

constituted "dicta or a definitive holding that attorney's fees are available to a 

plaintiff that successfully pursues a common law right of access." Id. at 412. 

However, we held that our court was 

required . . . to follow the decisions of the Supreme 

Court, and in Mason the Court stated that in a case 

involving the common law right of access, attorneys' 

fees may be awarded under the catalyst theory unless 

there is "an apparent, theoretical basis" for declining to 

apply that theory.

[Ibid. (citing Mason, 196 N.J. at 79).]

Judge Thornton applied these principles and determined plaintiff could 

recover her counsel fees and costs under the catalyst theory. Turning to the first 

prong of the Mason test, the judge found "there [was] a factual causal nexus 

between plaintiff's complaint and [the Township's] decision to disclose the 

report." The judge explained:

Initially, defendants denied plaintiff's request. While 

defense counsel claims in his belated certification[] that 

he was "personally involved in discussions with the 

Township committee [. . .] with respect to release of the 

Turner [r]eport" in January of 2018, there is no 
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indication that these discussions occurred before 

plaintiff's request to the custodian on January 18th. At 

no time before plaintiff filed the complaint on February 

8, 2018, did defendants offer to provide access. More 

importantly, the court was not advised that the parties 

were discussing resolution of the matter until April 

2018, on the eve of the hearing. Finally, because 

plaintiff's right to obtain the internal investigation is 

well settled, it is unclear why defendants objected to 

disclosure when the request was made by way of the 

common law right of access.

In concluding that plaintiff also satisfied the second prong of the Mason

test, Judge Thornton determined that the Turner report was exempt from 

disclosure under OPRA because it was "information generated by or on behalf 

of public employers or public employees in connection with any sexual 

harassment complaint filed with a public employer . . . ." See N.J.S.A. 47:1A1.1. However, the judge found that plaintiff had a right to the report under the 

common law right to access public records.

In so ruling, Judge Thornton stated:

There should be little doubt that access should have 

been provided based on the common law. The "Turner 

[r]eport" was created at defendants' request, to evaluate 

plaintiff's allegations. Plaintiff was encouraged to 

cooperate with Mr. Turner and submit to an interview 

based on assurances that the investigation would be 

performed by an "independent" third party. 

Examination of the report is essential to evaluate if [the 

Township] provided "an effective avenue to complain"

about harassment or contributed to the alleged harm 
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caused "through its negligence, intent, or apparent 

authorization of the harassing conduct." [Lehman v. 

Toys 'R' Us, 132 N.J. 587, 623-24 (1996)]. As the 

[Supreme] Court concluded in [Payton v. NJ Tpk. 

Auth., 148 N.J. 524, 541 (1997)], confidentiality 

supports the public interest to maximize reporting of 

sexual harassment.

[(footnote omitted).]

The judge continued:

However, the scourge of abuse will continue unabated 

if the claims of victims are defeated because access to 

evidence is denied. On the facts of the present case, 

plaintiff's need for disclosure far outweighs the public's 

need for confidentiality. Any harm that could result 

from disclosure can be mitigated by a protective order 

to redact the names of witnesses or other pertinent 

information. Payton, 148 N.J. at 559.

The Township moved for reconsideration, which Judge Thornton denied 

on May 9, 2019. The judge reviewed plaintiff's attorney's billing records and, 

on May 11, 2020, ordered the Township to pay plaintiff $9405 in counsel fees 

and $325.07 in costs. This appeal followed.

On appeal, the Township raises the same contentions it unsuccessfully 

presented to Judge Thornton. It argues that "the trial court's decision to award 

legal fees under the common law was in error and should be reversed." We 

disagree.
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The standards governing our review of a trial judge's decision on an 

application for counsel fees and costs are well established. As we stated in 

Gannett, "the award of attorney's fees under the common law is committed to 

the sound discretion of the trial court, after consideration of all relevant factors." 

467 N.J. Super. at 412. A trial court's award of counsel fees "will be disturbed 

only on the rarest occasions, and then only because of a clear abuse of 

discretion." Rendine v. Pantzer, 141 N.J. 292, 317 (1995).

Applying these principles, we discern no basis for disturbing Judge 

Thornton's determination that plaintiff could recover her counsel fees and costs 

under Mason's catalyst theory. Like Judge Thornton, we find no "apparent, 

theoretical basis" for declining to apply that theory to plaintiff's common law 

claim. Mason, 196 N.J. at 79. The judge's findings are fully supported by the 

record and her legal conclusions are unassailable.

Affirmed.