Monthly Archives: August 2014

Using OPRA as a Litigation Tool

When a dispute involves a public agency, public property, or public resources, the Open Public Records Act (OPRA) can be an important information gathering tool, whether a lawsuit has already been filed or a party is simply gathering facts necessary to draft the complaint and initiate the litigation. Thus, OPRA is frequently used as a litigation tool by those who do business with public agencies or those who purchase or lease public property, such as construction companies and real estate developers.

Our courts have found that it is perfectly acceptable to use OPRA in lieu of written discovery requests or subpoenas and there are several benefits in doing so.  First, a response to an OPRA request is due much faster than a response to a subpoena or discovery demand. The public agency must respond within a mere seven business days.  Second, the judiciary’s discovery rules require that a party demonstrate that the documents requested are relevant to admissible evidence, but a request for records under OPRA requires no such showing.  Any request for a government record must be honored unless one of the 24 narrow exemptions applies.

When using OPRA as a litigation tool, it is important to hire an attorney who is well-versed in crafting OPRA requests because a valid OPRA request is written much differently than a typical discovery request.  As discussed before on this blog, a valid request must seek an identifiable record and not simply a general request for information or a broad category of records.  A valid request does not require the custodian to perform any research or analysis, nor ask the custodian to calculate data.  It instead simply asks for easily identifiable records, such as contracts, budgets, bills, meeting minutes, logbooks, RFQs, vouchers, or correspondence.

For more information about this blog post or any other OPRA question, please contact cgriffin@pashmanstein.com.

Can I Request Attorney Bills?

Some public agencies routinely deny access to invoices for attorney services, claiming that such bills contain information protected by the attorney-client privilege.  OPRA, however, specifically mandates that these bills must be made available in response to an OPRA request.  The public bills may, however, “be redacted to remove any information protected by the attorney-client privilege.”

Recently, a public agency attempted to charge a requestor an hourly rate for its attorney’s time to review the legal bills and redact them for privileged information. The public agency required the requestor to pay for three hours of time at $150 per an hour.  The requestor filed suit and the court agreed with the requestor that such a charge was unlawful.  If the public agency needed counsel to review its responsive records, the court held that the public agency was required to bear that cost and not shift it to the requestor.

In addition to requesting the legal bills, it is common practice to also request the engagement/retainer letter and the resolution passed by the public body to approve the contract. This allows the requestor to verify that the rates being charged are authorized by the contract.

If you encounter a problem gaining access to legal invoices, it is imperative that you speak to an OPRA attorney immediately.  Lawsuits for wrongful denials of access to records must be filed within 45 days of the denial.

For more information about this blog post or any other OPRA question, please contact cgriffin@pashmanstein.com.

Drafting a Valid OPRA Request

When you make a valid OPRA request, a public agency has seven business days to respond. But, if your request is invalid for some reason, the custodian can deny your request.  The clock will then start all over again if you re-write your request and re-submit it.  Here are some basic guidelines to help you craft requests that will be upheld by the courts:

  1. Make sure that your request seeks a record, and not information. Invalid Request: “Please provide the times when Employee X arrives to work.”  Valid Request: “Please provide copies of Employee X’s time card.”
  2. Make sure your request is for a narrow, identifiable set of records. Invalid Request: “Please provide any and all documents relating to Town X and Town Y’s provision of animal control services.” Valid Request: “Please produce the contract for animal control services between Town X and Town Y.”
  3. Identify date range, subject matter, and sender and/or receiver in requests for email correspondence. Invalid: “Please provide all emails to or from the Mayor for January 2014.”  Valid: “Please provide every email to or from the Mayor received or sent in January 2014 regarding the township’s budget.”
  4. Remember to indicate the method by which you wish to receive the records. Do you wish to receive PDF copies of records via email? Do you want hard copies, for which you will incur a copying charge? Or, do you want the document in an electronic format such as a spreadsheet?

Many attorneys, such as those at Pashman Stein, will kindly review your requests to make sure that it is proper and sure to get you the records you seek.

For more information about this blog post or any other OPRA question, please contact cgriffin@pashmanstein.com.

Can I Request Closed Session Meeting Minutes?

Pursuant to the Open Public Meetings Act (OPMA), meeting minutes must be “promptly available” to the public.  Our courts have held that “promptly available” means within two weeks after the public body’s last meeting or at least 48 hours prior to the next meeting. At any point after that, you are free to submit an OPRA request for the minutes and access must be granted within seven (7) business days.  But what about closed/executive session minutes?

OPMA allows a public body to meet in closed session to shield certain information from the public. Among other things, these matters include: (1) matter rendered confidential by other laws; (2) matters which would constitute an invasion of individual privacy; (3) proposed terms of a collective bargaining agreement; (4) litigation-related subjects; and (5) certain employment matters. N.J.S.A. 10:4-12.  The public body must keep minutes for these closed sessions. While it may redact the minutes when responding to your OPRA request, it must state the specific basis for each redaction within the minutes.  It is not enough that it issues a blanket claim of assertion for all redactions.  Finally, once the need to keep certain information ceases (such as once the litigation ends), then the public entity is to release the minutes in full, unredacted form.

For more information about this blog post, please contact cgriffin@pashmanstein.com.

So You Were Denied Access – What’s Next?

Per OPRA, public agencies must respond to a request for records within seven business days. But what do you do if the government fails to respond (a deemed denial) or unlawfully refuses to grant access to the records?

The best course of action is to immediately speak to an attorney, who can work with you to gain access to the records. This frequently requires a lawsuit filed in Superior Court.  The most important thing to remember is that your action must be filed within the statute of limitations, which is 45 days. The process for filing in Superior Court is as follows:

  • A Verified Complaint and Order to Show Cause is filed
  • The judge will review and sign the Order to Show Cause. It sets a briefing schedule and a hearing date.
  • The pleadings are then served upon the defendants (public agency and the custodian of records )
  • The defendants will submit their answer and opposition
  • Plaintiff has an opportunity to file a reply brief
  • A hearing is held, wherein the judge will hear arguments from both sides. For simple cases, the judge will usually enter a ruling that day. More complex cases may require a little more time for an opinion to issue. In rare circumstances, the court may allow for discovery (interrogatories, depositions) to occur.
  • If the plaintiff is declared a prevailing party, it can file a fee application asking the Court to order the defendants to pay plaintiff’s counsel fees and costs of suit.

Again, the most important thing to remember is that there is a very short timeline for filing the initial Verified Complaint – 45 days from the date your request was denied (or, if the agency fails to respond, the date the response was due).

For more information about this blog post, please contact cgriffin@pashmanstein.com.

Business Improvement Districts Must Designate Records Custodians

Over the past few years, New Jersey courts have expanded the definition of “public agency” under the Open Public Records Act (“OPRA”) so that it covers more than what is traditionally thought to be a government agency (i.e. municipalities and state agencies).  Through a series of cases, our courts have made it clear that non-profit corporations can be subject to OPRA if they serve as an “instrumentality” of a public agency.

Last week, the Hon. Judge Peter E. Doyne held that the Rutherford Downtown Partnership (“RDP”), a non-profit organization that manages the Borough of Rutherford’s Business Improvement District, is subject to OPRA.  Most importantly, Judge Doyne’s decision addresses what steps such a non-profit organization must do in order to comply with OPRA.

Plaintiff Patricia Gilleran submitted a records request to RDP. After receiving no response within seven business days, CJ Griffin of Pashman Stein filed litigation on her behalf.  In opposition to Plaintiff’s litigation, the RDP claimed it sent Plaintiff an email notifying her that it does not handle OPRA requests, that she must contact the Borough of Rutherford, that it would not forward her email to the Borough, and that she should not respond. Plaintiff certified that she never received this email.

Judge Doyne found that RDP’s alleged email was insufficient. He held that OPRA required the RDP to designate a records custodian and to forward Ms. Gilleran’s request to the custodian or to tell her specifically who the custodian is, rather than simply directing her to the Borough.

Records requestors should take away several things from this decision. First, the simple fact that an entity is non-profit organization does not mean it is not subject to OPRA. To determine whether the non-profit might be considered subject to OPRA, requestors should consider whether the mayor or town council appoints the organization’s board members; whether the non-profit’s budget consists heavily of “public funds;” whether the non-profit was created by local ordinance or state statute; and, the level of control a public agency exerts over the non-profit.

Second, when making an OPRA request to a non-profit organization, be aware that the non-profit must either forward your request to its custodian or specifically tell you the name of the custodian.  If you do not receive a response within seven business days, it is imperative that you immediately contact an attorney to assist you in obtaining the records as the law allows only 45 calendar days from the date of denial to file a lawsuit in Superior Court.

For more information about this blog post, please contact cgriffin@pashmanstein.com.