NJPA court brief challenges a public agency’s right to sue under OPRA

UPDATE (12/18/2015):  For NJ Appellate Court ruling, see http://njfog.org/2015/12/18/2707/.

The New Jersey Press Association (NJPA) has filed an amicus brief challenging a records custodian’s ability to file a declaratory judgment lawsuit in response to an Open Public Records Act (OPRA) request. “It addresses the prickly issue of whether public agencies can initiate lawsuits under OPRA to confirm their denials of access and thus force requestors to litigate a denial (or get an easy default judgment in their favor),” stated NJFOG president Walter Luers.

 Here is the brief along with commentary from the NJPA website:

 Carter OPRA case – NJPA Amicus brief

NJPA has intervened as an Amicus in this case before the Appellate Division of the N.J. …[Superior] Court. The case addresses the recent use of “declaratory judgment” court filings by records custodians. Doing so results in the avoidance of OPRA’s requirement that records custodians decide and respond to open record requests; and the related avoidance of governments’ financial liability for reimbursing a requestor’s attorney fees when wrongfully denying access – as currently required under OPRA.  The declaratory judgment filing also requires the requestor, willingly or unwillingly, to appear in court as a defendant — and at their own expense.  If allowed to stand, it’s apparent just how chilling an impact this records-custodial tool would have on requestors weighing the pros and cons of submitting an otherwise simple OPRA request for open records to which they believe they’re entitled.