The Appellate Division’s January 24th opinion in Underwood Properties v. Hackensack is the first precedential court opinion on a problematic OPRA practice that often occurs: an attorney submits an OPRA request under his own name, and then the attorney’s client files a complaint over the denial of the request. The court held that the client has standing to file the OPRA litigation, despite not being identified as the requestor in the OPRA request.

Underwood is involved in lawsuits against Hackensack concerning its redevelopment plan. Separately, Underwood’s counsel submitted, under his own name, OPRA requests to the City for correspondence of various City officials. After the City denied the requests on various bases, Underwood filed a lawsuit, which resulted in some documents being released.

In the trial and appellate courts, Hackensack argued that Underwood lacked standing to file a complaint, because it was not the requestor. The trial judge rejected this argument, on the ground that counsel filed the OPRA requests on behalf of his client and within the scope of his representation. The Appellate Division agreed with this reasoning. It added that OPRA’s goal of access to public records, and the courts’ liberal standing rules, supported allowing the client to pursue the litigation.

I don’t think the general purpose of OPRA and standing policies are relevant here. As I’ve noted previously, OPRA only permits the “requestor” to file a court action challenging a denial of a request, so there’s simply no basis to permit someone who did not make the request to litigate over its denial. This problem doesn’t exist where it’s clear that the client is the requestor, and the attorney simply submitted the OPRA request on behalf of that client. But if that’s the case, the OPRA request should identify the client as the requestor.

In addition to setting the above precedent, Underwood is a useful opinion because it’s one of the few cases in recent years to deal with calculating an appropriate attorney fee award where the requestor achieves only partial success in its OPRA litigation. In 2005, the Supreme Court held that the amount of the award must be based on a “qualitative analysis” of the amount of litigation success achieved by the requestor, but there is little case law applying this analysis. In Underwood, the court upheld the trial judge’s fee award as complying with the required qualitative analysis. The trial judge reduced the amount of fees requested, from about $14,500 to $3750, due to the requestor’s limited suceess in obtaining documents and its failure to vindicate OPRA’s purpose.