New Jersey Law

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Public Entity Achieves Favorable OPRA Ruling

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In a case of first impression in New Jersey, the Court decided that the plaintiff was not entitled to attorneys’ fees where the plaintiff had failed to advise a public entity before filing suit that their response to OPRA (Open Public Records Act) was deficient. Grieco v. Borough of Haddon Heights et al., L-2876-15, 2015 WL 13264225, at *1 (N.J. Super. Ct. Law Div. Oct. 19, 2015). In Greico, the Court rejected plaintiff’s claim that the lawsuit was the “catalyst” for the pubic entity producing records otherwise available under OPRA because plaintiff had waited two weeks and remained silent to any further communication with the Borough and failed to advise the Borough as to their incomplete answer to the request. The Court rejected plaintiff’s claim for attorneys’ fees because plaintiff was not a “prevailing party” under OPRA.

It is undisputed that, according to N.J.S.A. 47:1A-6, “a person who requests public records from a custodian and is denied access to that record may institute a proceeding in Superior Court or with the Government Records Council to challenge the custodian’s decision.” Additionally, the requesting party who prevails in the proceeding shall be entitled to reasonable attorneys’ fees. Ibid.

In order “[t]o be entitled to counsel fees under OPRA, a plaintiff must be a prevailing party in a lawsuit… brought to enforce his or her access rights.” Smith v. Hudson Cty. Register, 422 N.J. Super. 397, 393 (App. Div. 2011). In order to be a prevailing party the plaintiff bears the burden of proof to demonstrate that they achieved substantial relief on at least one of their claims. Greico, at 2. In Greico, plaintiff failed to demonstrate that there was (1) a factual causal nexus between plaintiff’s litigation and the relief ultimately achieved; and (2) that the relief ultimately secured by plaintiffs had a “basis in law.” Id.; Mason v. City of Hoboken, 196 N.J. 51, 76 (2008).

CATEGORIES: Municipal Law

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