NJ Supreme Court fails to close door on “first strike” suits by public agencies. Legislature must step up.

The Editors of the New Jersey Law Journal have written an excellent commentary piece on the New Jersey Supreme Court’s 8/3/2017 decision in the case of Jeff Carter v. NJ State Firemen’s Association (NJSFA) (A-68-15). Below is NJFOG’s short summary of the case and court findings. We recommend reading the Editorial for greater detail.

Background:  Carter submitted an OPRA request for  “financial relief checks” for someone he felt was receiving the payments inappropriately and received a denial from the records custodian, who then filed a declaratory judgment (“DJ”) action, making Carter the defendant. The “DJ” action sought a court opinion on whether or not the requested records were subject to disclosure.

On the question of records access, the Trial Court sided with the NJSFA, the Appellate Court reversed, and the NJ Supreme Court favored privacy and reversed again.

With regard to the agency’s right to file for relief under the Declaratory Judgment Act, the Appellate Division ruled unequivocally that a records custodian could not bring a declaratory judgment action against a records requestor, regardless of whether the records request is made under OPRA or the common law right of access. While the NJ Supreme Court agreed with the Appellate Court that the NJSFA had already decided the “DJ” question by denying access to the requestor, the NJ Supreme Court’s decision leaves open 1) whether a public agency in receipt of an OPRA request may file a declaratory judgment action against a requestor in lieu of issuing a denial (pre-denial), and 2) whether the requestor-defendant is entitled to a fee award if he prevails.

While joining the Supreme Court’s majority opinion, Justice Albin reasoned that a public agency should be precluded from filing a declaratory judgment action against a records requestor and noted that OPRA does not allow for it. “Every reason for denying a public agency the authority to file a declaratory action after the denial of a records request holds true … before a custodian’s denial. To conclude otherwise would have a powerful chilling effect on whether a citizen would even request a government record, thus defeating the entire purpose of OPRA,” Albin wrote.

The Supreme Court ruling may invite poor faith lawsuits by public agencies seeking to discourage public oversight, even when the requested records are plainly public in nature. If a requestor who is unduly burdened with his own defense is also denied recovery of his costs, it’s a one-two punch, and because recovery is uncertain, the requestor may have trouble securing legal representation at all – i.e., on contingency.

The Carter v. NJSFA case demonstrates the need for legislative reform. Bill S1046 (A2697), the OPRA modernization amendment, must establish that the Open Public Records Act supersedes the Declaratory Judgment Act and that only a records requestor may bring an action with regard to a denial of access.





New Jersey Law Journal
Supreme Court’s OPRA Ruling Represents a Backward Step
Law Journal Editorial Board
September 1, 2017



NJ Appellate Court says only a requestor can sue under OPRA. NJ Supreme Court to hear appeal.