Monthly Archives: November 2017

An Important Appellate Ruling: Attorney Fees May Not Be Awarded In OPRA Litigation That Doesn’t Involve Access To Records

The Appellate Division recently issued an important opinion concerning the limits of OPRA’s attorney fee award provision. The court held that a plaintiff who does not seek access to records, but instead claims the public body otherwise is not complying with OPRA, is not entitled to an attorney fee award for litigation success. Kennedy v. Montclair Center Corp. Business Improvement District.

After Kennedy filed a complaint, the District provided him the records he had requested, but denied that it was subject to OPRA. Kennedy litigated over this issue, and eventually the Appellate Division issued an opinion declaring that the District is an agency covered by OPRA. Kennedy then sought over $145,000 in attorney fees related solely to the litigation he pursued after receipt of the requested records.

The court determined that OPRA provides attorney fees only to requestors who succeed in obtaining access to records. Kennedy was not such a requestor–he had already received access to the records he asked for (with attorney fees for that part of the litigation), and the additional litigation over whether the District is subject to OPRA did not result in providing any records to him.

In short, the court said that OPRA is not intended to give fees to those who file litigation to enforce aspects of OPRA, rather than to obtain records.

I’m surprised that this important opinion is not published and precedential. The Appellate Division had never dealt with this issue before, and there have been cases where lower courts have incorrectly ruled that attorney fees may be awarded under OPRA even where the requestor did not gain access to records.

Appellate Division Rejects Another OPRA Requestor Assault On Government Employees’ Personal Privacy

Some requestors attempt to use OPRA to evade basic notions of privacy and gain access to personal information held by the government. This post from early 2017 discusses how public bodies frequently must defend OPRA litigation seeking disclosure of clearly private information. A recent Appellate Division case presents yet another example of this.

In Wolosky v. Boro of Washington, the requestor sought the municipal clerk’s 2015 payroll record. The Boro provided this document, redacting the deductions for pension contributions, pension loan payments and health insurance payments. The Appellate Division upheld this decision, because the redacted material is exempt personnel information.

The requestor also argued that the employee’s privacy interest in the withheld information should not block disclosure. The Appellate Division agreed with the trial judge’s rejection of this claim. The trial judge said that any public interest in disclosure of how much money the employee contributes for her health insurance and pension is “heavily outweighed” by her expectation of privacy in this information.


Appellate Division: Litigation Settlements Are Covered By OPRA’s “Immediate Access” Provision

The Appellate Division recently issued an opinion that will cause problems for custodians. The court ruled, for the first time, that OPRA’s immediate access provision applies to requests for litigation settlements. Scheeler v. Galloway Tp.

The court reversed a GRC decision which had upheld the denial of a request for the settlement agreement on the ground that the settlement had not been finalized at the time of the request. The document in question was entitled “Release and Settlement Agreement” and apparently consisted simply of the litigant’s release of the Township from all claims he may have against it. The rest of the litigation settlement terms were not in writing, but instead were orally agreed to by the parties’ attorneys.

The court disagreed with the GRC that the litigation had not yet been settled at the time of the request. Based on its conclusion that in fact there was a finalized settlement, the court held that the custodian should have disclosed the release.

Notably, the Appellate Division issued a separate ruling, holding that the release should have been disclosed immediately, under the section of OPRA requiring that immediate access be given to certain information held by public bodies, such as budgets, contracts, bills and employee salaries. The court said that because a release of litigation claims is a contract, this type of document is covered by the “immediate access” requirement.

As a result, even though the custodian provided the release to the requestor within 7 business days, the court held that the custodian unlawfully denied access by not providing it immediately.

No court had ever addressed previously whether a litigation settlement is the type of contract that is subject to OPRA’s “immediate access” section. As I’ll discuss in a future post, I think the Legislature did not intend this statutory provision to apply to settlement agreements.

Although the Scheeler opinion is unpublished, and therefore not binding on other courts, it is binding on the GRC, since the GRC was a party in the case. Consequently, in future cases, the GRC is obligated to hold that a custodian has committed a violation if a request for a settlement agreement is not fulfilled immediately. And as I’ve discussed previously, the GRC takes a hard line on the definition of “immediate access,” so that even a response time of a day or two may be a violation.

I suspect that many custodians will be unable to answer requests for settlement agreements so quickly. Nevertheless, they now face the risk of being penalized by the GRC for violating OPRA in these situations.


Teaneck to Appeal Trial Court Decision Denying Injunction Against Requestor Who Submitted Excessive Requests

According to this article, Teaneck is appealing a trial court ruling that it violated OPRA in seeking to enjoin a requestor who had overwhelmed the township with excessive OPRA requests.

In a previous post on this case, I said that in my view, the trial court erred. The Supreme Court ruled years ago that the courts have the power to grant applications by public bodies to restrain requestors who file excessive, unreasonable public records requests. The Teaneck case, which involved an avalanche of burdensome OPRA requests made for the purpose of harassing township officials, seems to be the exact type of situation the Supreme Court had in mind.

Hopefully, the Appellate Division will issue an opinion in this matter that will confirm that it’s entirely appropriate for public bodies to seek injunctions in cases like this.