OPRA cases often become a battle over attorney fees, with requestors seeking, and often receiving, large fee awards from public bodies. In many cases, requestors try to capitalize on a minor or unintentional mistake by the custodian as the basis for obtaining attorney fees.
An opinion issued today by Camden County Assignment Judge Katz makes clear that requestors are not entitled to receive attorney fees in every situation where the public body errs in responding to the OPRA request. Fees will not be awarded where the requestor unreasonably rushes to court in an effort to obtain such an award. Grieco v. Boro of Haddon Heights.
In this case, the public body provided some documents requested, but didn’t turn over one of them, due to an innocent and understandable mistake–the document “slipped through the cracks” when the custodian had to leave work suddenly due to a family medical emergency. The requestor did not contact the public body about the missing record, and instead filed suit two weeks after receiving the OPRA response. The public body did not realize it had failed to turn over the document until it was sued, and at that point it immediately provided it to the requestor.
The judge ruled that attorney fees should not be awarded in this situation, where the requestor chose litigation over trying to resolve the matter with a simple phone call. In accordance with the Supreme Court’s opinion in Mason v. Hoboken, the judge said, this kind of uncooperative conduct violates OPRA and requires denial of fees to the plaintiff.
This is not a groundbreaking opinion–as Judge Katz stated, the facts of this case are similar to those in Mason, the 2008 Supreme Court opinion that established the standards governing entitlement to attorney fees under OPRA. Nevertheless, it’s useful to have a reminder from a court that requestors who rush into court are unlikely to obtain attorney fees. And this trial court opinion is published, giving it some precedential weight.