OPRA Declaratory Judgment Suit Filed By Township Dismissed By Trial Court

As discussed here, the Appellate Division is considering the novel issue of whether public bodies may file a declaratory judgment action to resolve the validity of an OPRA request. A trial court judge recently issued an opinion, Hamilton Tp. v. Scheeler, holding that public bodies are not permitted to bring such suits. This opinion is of limited importance, in light of the impending ruling from the appellate court, but it has a few interesting aspects.

In Hamilton, requestor Harry Scheeler sought police department building video camera surveillance footage from Hamilton Township (Atlantic County). The Township filed a declaratory judgment action claiming it should be not be obligated to respond to surveillance video OPRA and common law requests from Scheeler and “Amy Von Bosse,” the latter a fictitious name used by Scheeler to make anonymous OPRA requests.

The trial judge held that OPRA does not permit a public agency to file suit to ask a court to adjudicate a records dispute, reasoning that under the statute, only the requestor is authorized to choose to file an OPRA complaint. The judge also said that allowing declaratory judgment suits would be contrary to OPRA’s policies, on the basis that such litigation would have a “chilling effect” on requestors. The judge awarded attorney fees to Scheeler because he had prevailed on the OPRA declaratory judgment issue.

I’m struck by several ironies presented by this opinion. One is that the judge’s award of attorney fees to the requestor undercuts a key argument against OPRA declaratory judgment raised by the New Jersey Press Assn. in the pending appeal, that permitting such lawsuits will deprive requestors of their ability to obtain attorney fees under OPRA. The Hamilton ruling suggests that, contrary to the NJPA’s claim, judges will award attorney fees to requestors who are successful in OPRA declaratory judgment actions.

Another great irony is that although the opinion rests in part on the idea that requestors will somehow be chilled by OPRA declaratory judgment suits, the requestor who was sued in this case actually contradicts this theory. Scheeler is a frequent OPRA requestor and litigant who has publicly declared that he is not intimidated by government efforts to dispute his attempts to gain access to records.

As mentioned above, the Appellate Division will resolve the validity of OPRA declaratory judgment litigation in its opinion, which may be issued within a few months.

 

 

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