On February 13, 2017, the Assembly State and Local Government Committee favorably recommended Assembly Bill No. 4532 which would, in its current form, weaken the Open Public Records Act (OPRA) by relieving government agencies from paying a successful OPRA plaintiff’s attorney fees if “the court or [Government Records Council] finds that the decision to deny access was reasonable and made in good faith after due diligence.”
OPRA’s mandatory fee-shifting provision is one of the law’s most important features. According to a 2005 Appellate Division case, without fee-shifting, “the ordinary citizen would be waging a quixotic battle against a public entity vested with almost inexhaustible resources. By making the custodian of the government record responsible for the payment of counsel fees to a prevailing requestor, the Legislature intended to even the fight.”
But, during yesterday’s hearing, Committee Chairman Troy Singleton remarked that he was assured by Assemblyman Wayne P. DeAngelo, one of the A-4532’s three current sponsors, that the bill’s proposed limitation on attorney fee-shifting was intended to apply only to lawsuits where the “personal government records”–a new category of exempted records created by the bill–were at issue. The bill defines this new category as “consist[ing] of or pertain[ing] solely to a pet or home alarm system permit, license, or registration.”
Earlier this afternoon, I spoke with Elizabeth A. Meyers, DeAngelo’s chief of staff, who confirmed that it was never DeAngelo’s intention to so dramatically alter OPRA’s fee-shifting structure. Meyers said that DeAngelo has instructed the Office of Legislative Services to amend the bill to make it clear that the bill’s limitation on fee-shifting applied onto to court cases where “personal government records” (i.e. pet and home alarm licenses) were being sought. She said that the curative language, which should be available on-line within a few days, would be offered as an amendment when the bill reaches the Assembly floor.