Tag Archives: opra and litigation

My OPRA Request Was Denied. Now What?

OPRA requires public agencies to respond within 7 business days of your request. (Tip: Begin counting the first business day after you filed the request).  A public agency must respond within 7 business days and either: 1) Produce responsive records; 2) Tell you that access is being denied and reason for the denial; or 3) Ask for an extension of time to respond.

But what do you do if the government fails to respond (a deemed denial) or denies access to a record that you know is not exempt?

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 a lawsuit in Superior Court is as follows:

  1. A Verified Complaint and Order to Show Cause is filed.  Each county has a designated “OPRA Judge” who will hear the matter.
  2. The OPRA Judge will review and sign the Order to Show Cause, which sets a briefing schedule and a hearing date.
  3. The pleadings are then served upon the public agency and custodian.
  4. Often, a public agency may work with your attorney to settle the case by producing records and paying the attorneys’ fees.
  5. If the parties are unable to settle, the agency will file an answer and opposition to your lawsuit.
  6. Your attorney then has an opportunity to file a reply brief
  7. 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 certain circumstances, the court may allow for discovery (interrogatories, depositions) to occur.
  8. If you win, the Judge will order the agency to produce records to you and your attorney will file a fee application asking the Court to order the agency to pay your counsel fees and costs of suit.  (Many attorneys, like Pashman Stein Walder Hayden, represent requestors on a contingency basis which means that if you lose, you will not owe any counsel fees).

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 or any other OPRA question, please contact cgriffin@pashmanstein.com.

 

 

Sunshine Week: Jennifer A. Borg, Esq.

We close Sunshine Week by featuring Jennifer A. Borg, Esq.

Ms. Borg is General Counsel and Vice President of North Jersey Media Group, publisher of The Record.  She is a recognized authority in First Amendment and open governance matters, particularly as they affect newspapers, and has recently served as Chair of the New Jersey Press Association.  She also has litigated numerous OPRA lawsuits with successful results.  Ms. Borg was featured in the ABA Journal (July 2014) for her expertise in OPRA and public records access issues.  Pashman Stein regularly serves as co-counsel with North Jersey Media Group on complex OPRA cases, several of which are presently on appeal before the Appellate Division.

Interview with Jennifer A. Borg, Esq:

  1. How many OPRA requests do North Jersey Media Group’s reporters submit each month? How many result in violations and/or litigation?

I have no way of knowing exactly how many requests are filed for any given time-period.  North Jersey Media Group has over 100 reporters and very few requests actually make it to my desk.  Usually, I am only contacted when a request is denied, although I do encourage reporters to allow me to help them draft the request.  Requests that are too broad or unclear are often denied so I like to work with reporters to make sure the  request is valid and specific.

I would estimate that we file 6-12 OPRA lawsuits a year.

  1. What are the most common OPRA violations that you see?

The most common violations are not providing a privilege log or Vaughn index with the denial.  Too often, an agency will just deny a request outright without listing the specific documents being withheld or explaining the reasons why each document is being withheld.

  1. Do you think OPRA and OPMA are working well?

I think OPRA is an improvement over the former Right to Know Law.  But, I agree with Senator Weinberg that amendments are greatly needed.  OPRA has been in effect for over a dozen years so we have had time to evaluate where it can be strengthened.  I have less experience with the Open Public Meetings Act (“OPMA”), but I find that it too is missing important language clarifying its terms.  For instance, agencies need to be more specific when giving reasons for going into closed session. “Personnel” and “litigation” do not suffice.    Because OPMA does not provide for attorneys’ fees to the prevailing party, many people don’t take significant violations to court. It’s simply too expensive for most people to pay a lawyer to litigate these claims.

  1. If you could persuade the Legislature to take steps to improve government transparency, what would be your top suggestions?

OPMA needs to provide for attorneys’ fees so that members of the public have lawyers willing to take their cases to court.  Without attorneys’ fees, the practical effect is that agencies can violate the statute without consequence.  There are many changes I would like to see made to OPRA.  For starters, I think the statute should make it clear that courts, and not just the GRC, can impose penalties against those who knowingly and willfully violate the statute and that requestors be allowed limited discovery to prove that an official engaged in such conduct.   It makes no sense that a public official can flagrantly violate the law and not be held accountable for his or her misconduct.  Custodians are required to perform an adequate search for records but too often judges do not allow a requestor limited discovery into whether the custodian’s search was proper and adequate.     Without looking under the hood, how can we hold officials accountable when they knowingly violate the law?   It is crucial for the public to be able to verify that a custodian or other official properly performed his or her job duties when responding to an OPRA request.

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

Using New Jersey’s Open Public Records Act as a Litigation Tool

Published in New Jersey Corporate Counsel’s Newsletter, December 2014 Issue

Those who frequently litigate are aware that the discovery process often involves numerous components, including interrogatories, document demands, subpoenas, depositions, and requests for admissions.  In addition to these traditional tools, New Jersey offers an additional discovery mechanism that is often overlooked:  the Open Public Records Act (“OPRA”), N.J.S.A. 47:1A-1, et seq.  When a dispute involves a public agency, public property, or public resources, OPRA can be an important information gathering tool, both where a lawsuit has already been filed and when a party is simply gathering facts necessary to draft the complaint and initiate the litigation.  Thus, OPRA may be a useful litigation tool for construction companies, real estate development companies, financial lenders, insurance companies, and any other entities that deal with public agencies, public property, or public resources.

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 to doing so.  First, the recipient of an OPRA request must respond much more swiftly to that request than to a subpoena or discovery demand.  The public agency must respond within a mere seven business days, whereas the thirty-to-sixty day deadline for responding to traditional written discovery is often missed by litigants and discovery is often not produced until a motion to compel is filed.

Second, the New Jersey judiciary’s discovery rules require that a party demonstrate that the documents or information requested in written discovery are relevant to admissible evidence, but a request for records under OPRA requires no such showing.  Government records must be produced within seven business days of an OPRA request, unless the record can be categorized under one of OPRA’s 24 narrow exemptions (such as personnel records, criminal investigatory records, certain security-related information, etc).

Finally, OPRA contains a mandatory fee-shifting provision if a court finds that a public agency unlawfully denied access to a record.  Thus, while companies might pay outside counsel’s hourly rates to assist in drafting the OPRA requests and litigating to obtain access to records, those companies will be reimbursed a “reasonable” attorney fee if the court finds that the public agency violated OPRA.  In contrast, if an adversary fails to properly respond to a discovery request and the court grants a motion to compel, the decision to award attorneys’ fees is discretionary and rarely occurs in practice.

When using OPRA as a litigation tool, it is important to work with an outside counsel who is well-versed in crafting OPRA requests because a valid OPRA request is markedly different from a typical discovery request.  Discovery requests are often broad and require the adversary to analyze information, make computations, and answer specific questions.  A valid OPRA request is the opposite–it is not simply a general request for information or a broad category of records.  A requestor generally cannot seek an entire project file, but instead must identify the specific records within the file that it wants to receive.  A valid OPRA request does not require the records custodian to perform any research or analysis, nor ask the custodian to calculate data or answer questions.  To be upheld, an OPRA request must seek easily identifiable records by name, such as contracts, budgets, bills, meeting minutes, logbooks, emails, RFQs, vouchers, check registries, or correspondence.

In-house counsel who draft OPRA requests should keep these tips in mind:

1.    Make sure that your request seeks a specific government record and not information. Invalid Request: “Please state Employee X’s annual salary.”  Valid Request: “Please provide copies of Employee X’s most recent payroll record.”

2.    Keep your request narrow in date and scope.  Invalid Request: “Please provide any and all documents relating to Town X’s contract with Company Y.” Valid Request: “Please produce the following records relating to Town X’s contract with Company Y for the construction of the new school:  the RFP, quote or bid submitted by Company Y, Town X’s resolution awarding Company Y the contract, and all bills/invoices submitted from Company Y from January 1, 2014 to present date.”

3.    For copies of email correspondence, you should identify the date range, subject matter, and sender and/or receiver in requests. Invalid: “Please provide all emails to or from the Mayor for Year 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 of 5 cents per a page? Or, do you want the document in an electronic format such as a spreadsheet?  A public agency may charge for converting certain records into another medium, but it may only charge for the “actual costs” it incurs.

Using these general guidelines will help ensure that the records custodian does not deny the request as invalid.

As mentioned above, if a request is valid, then the public agency has seven business days to respond and that response must be in writing.  The response should either enclose the requested records, indicate why access to specific records is being denied, or request an extension of time to comply with the request if the request was voluminous.  If the records contained confidential information (such as social security numbers, attorney-client privileged information, etc.), the public agency may redact the protected information but must grant access to the rest of the record.  The public agency also must indicate why the redactions were made and redact as narrowly as possible.

To challenge a public agency’s response to an OPRA request, the requesting company should file a Verified Complaint and Order to Show Cause (OTSC) in the Superior Court.  While OPRA also allows requestors to file a challenge before the Government Records Council (GRC), the Superior Court is a much faster route for resolution of such disputes.  Generally, the OTSC return date is set four to six weeks after the initial filing of the Verified Complaint.  Thus, a company using OPRA to obtain discovery could theoretically file a request, receive a denial, file litigation, and obtain a court order compelling production of the requested government records before a response to traditional written discovery would have even been due.  Given this efficiency, companies should be aware of the benefits of OPRA and consult experienced practitioners to make the best use of this underutilized litigation tool.

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

 

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.