Appellate Court to rule on who can file an OPRA lawsuit

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

What has come to be called “first strikes” or “pre-emptive strikes” by public agencies is a hot topic these days with a growing number of records requestors finding themselves as unwitting defendants in court actions initiated by public agencies. Since the OPRA statute mandates reimbursement only to successful plaintiffs, requestors who are defendants in an OPRA lawsuit may be out their defense costs even if they win.

In February, NJFOG reported that the New Jersey Press Association (NJPA) had filed an amicus brief with the Appellate Division in the matter of Carter v. New Jersey State Firemens’ Association (NJSFA). The brief addresses the important question of who can file an OPRA lawsuit and argues that it is the exclusive right of the records requestor. Were the Court to find otherwise, the chilling effect on public advocacy is easy to imagine.

The Appellate Division hearing was this past Tuesday, June 2, 2015. A written decision is expected, and we will keep you posted on the outcome.

Background: In 2013, the NJSFA filed a complaint in Superior Court against Jeff Carter seeking a ruling that his OPRA request for copies of relief applications was invalid. Carter and his attorney in the case, Walter Luers, argued for disclosure but were unsuccessful. Per Luers, the trial court did not address the issue of who has the right to file an OPRA lawsuit, a key issue in Carter’s appeal.

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Related post:  http://njfog.org/2015/07/01/middlesex-county-court-rules-only-a-records-requestor-can-sue-under-opra/