The Open Public Records Act (OPRA) requires government agencies to pay the attorney fees of requestors who successfully sue them for disclosure of government records.  The legislature reasoned that the absence of a mandatory attorney fee-shifting provision would give government agencies–who have taxpayer funds to pay attorneys–too much of an advantage over average citizens who pay their lawyers out of personal funds.

Recently, government agencies, in an apparent attempt to circumvent this legislative design, have begun to file lawsuits against citizen requestors before those requestors are given a chance to decide whether they wish to sue the agency under OPRA. The Middlesex County Prosecutor’s Office’s (MCPO) recent deployment of this tactic will be heard in New Brunswick by Middlesex County Assignment Judge Travis L. Francis on Wednesday, May 20th at 9 a.m.

In this case, two newspapers submitted OPRA requests to the MCPO for recordings of 911 calls to Old Bridge police regarding a 75 year old man who allegedly attacked a family member with knife on January 14, 2015.  According to news reports, the man, Talbot Schroeder, was fatally shot by officers after he allegedly would not put down the knife.

After denying the newspapers’ records requests, the MCPO filed a lawsuit seeking a court order that would, in effect, ratify its decision to deny access to the recordings.   Although the two newspapers ultimately filed their own lawsuits to obtain the recordings, the MCPO’s lawsuit was filed before the newspapers’ suits.

On-line here is a copy of a March 30, 2015 brief filed by Thomas J. Cafferty, attorney for one of the newspapers.  Cafferty’s brief, in my view, clearly and persuasively sets forth the reasons why government agencies should not be allowed to file these preemptive OPRA lawsuits.  Among these reasons is that such lawsuits improperly force records requestors to litigate even if they never intended to file a lawsuit seeking disclosure of the denied records.  Cafferty’s brief goes on to state that

Allowing a public agency to initiate a proceeding has an even more profound effect – an effect that may well be intended by public agencies. Placing the requestor in the position of defendant not only improperly shifts the burden of proof, but it also prevents the requestor from recovering attorneys’ fees, despite a judicial determination that the records are accessible under OPRA. OPRA provides that “a requestor who prevails in any proceeding shall be entitled to a reasonable attorney’s fee.” N.J.S.A. 47:1A-6. This attorney fee provision would not be available to the Newspaper in the instant action.

The MCPO, like several other agencies who employ this tactic, posit that the question of whether the agency pays a requestor’s attorney fees turns on which party gets to the courthouse first.  This viewpoint is in direct opposition to N.J.S.A. 47:1A-6, a provision within OPRA, that states that “[t]he right to institute any proceeding under this section will be solely that of the requestor.”

Hopefully, Judge Francis will rule against the MCPO’s position and help put an end to these preemptive OPRA lawsuits.

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