Appellate Division: OPRA Violation Doesn’t Automatically Justify Attorney Fee Award

Every OPRA request presents the risk that a public body will have to pay the requestor’s attorney fees if the request is not answered properly. The courts generally construe OPRA’s attorney fee provision in favor of requestors; one judge even awarded fees in a case where the requestor obtained no records, simply because the custodian had not fully described the correctly withheld records.

The Appellate Division’s recent opinion in Paff v. Bergen County is a rare example of a court declining to apply OPRA’s attorney fee provision so broadly. As discussed here, this opinion is important because it held, for the first time, that internal affairs records of law enforcement agencies are confidential. In addition, the court said that the requestor could not obtain attorney fees, even though the custodian had not fully complied with OPRA in handling the request.

The OPRA violation was the custodian’s failure, in initially responding to the request, to give the basis for the redactions. This explanation was given after the complaint was filed. The Appellate Division ruled that this omission did not warrant the imposition of attorney fee liability. It noted that the requestor did not obtain the records that he had sought and litigated over– the names of officers and complainants shown in the internal affairs complaints–and therefore had not prevailed in his OPRA case.

It’s rare for a court to deny fees where there’s an OPRA violation, but the result here is consistent with the legislative intent that only requestors who truly succeed in their litigation efforts should receive attorney fees.

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