Suppose you submit an OPRA (Open Public Records Act) request to your local town government for a record.  Then, suppose the town clerk denies your record on the basis that she or he “does not have authorization to to send to you.”  After you file a lawsuit for the records, suppose the clerk comes clean and truthfully certifies that the records you requested do not exist.

In such a situation (i.e. where the clerk’s initial response was wrong or misleading), should the town still be required to pay your attorney fees and court costs for bringing the OPRA lawsuit?

In the first decision of its kind, Morris County Superior Court Assignment Judge Thomas L. Weisenbeck held on April 11, 2014 that the plaintiff was entitled to his costs and attorney fees accrued up until the clerk informed him that the records didn’t exist.  See the Order and Decision in Kelley v. Borough of Riverdale, Docket No. MRS-L-524-14, on-line here.  Plaintiff’s attorney was Walter M. Luers of Clinton.

Weisenbeck held that the clerk

technically violated OPRA by providing, albeit negligently, an incorrect response, thereby requiring plaintiff to file his complaint. Had defendants initially advised [Plaintiff[ that no such responsive e-mails exist, then presumably [Plaintiff] would not have initiated suit.

This is an important victory for records requestors.  Sometimes custodians, who know full well that responsive records do not exist, mislead requestors into thinking that responsive records might exist.  If the ability to recover attorney fees is dependent upon the records actually existing, custodians can gain an advantage over requestors by providing less than candid OPRA responses.  Hopefully, Weisenbeck’s holding will be adopted by other courts.

Chairman of the New Jersey Libertarian Party's Open Government Advocacy Project. Please send all comments to [email protected]