Recent Developments Under New Jersey’s Open Public Records Act

New Jersey courts decided a trio of cases last month that shine a spotlight on the State’s Open Public Records Act (“OPRA”), which governs the disclosure of government records when requested by members of the public. These opinions — the holdings of which are summarized below — serve as important guideposts for practitioners litigating OPRA-related matters.

  • In Burke v. Brandes, the Appellate Division held, in a decision issued on December 7, 2012, that an OPRA request is neither vague nor overbroad where it is confined to a specific subject matter that is described clearly and reasonably with sufficient identifying information and limited to particularized identifiable government records rather than to information generally. Reversing the lower court’s finding, the Appellate Division determined that plaintiff-appellant’s request for records in the possession or control of the Office of the Governor regarding “EZ Pass benefits afforded to retirees of the Port Authority, including all … correspondence between the Office of the Governor … and the Port Authority …” was not overbroad. The subject matter of the request — EZ Pass benefits provided to Port Authority employees — was clearly and reasonably described, and the request was limited to particularized identifiable government records — namely, correspondence between the Governor and the Port Authority.
  • Bolkin v. Borough of Fair Lawn, a December 5, 2012, opinion issued by the Superior Court, Law Division, Bergen County, discusses application of the statutory balance of interests test in OPRA when the responding agency asserts individual privacy concerns. Plaintiff, in order to promote the mission of the League of Humane Voters, sought the names and addresses of Fair Lawn pet owners for purposes of mailing them materials endorsing political candidates friendly to animals. Fair Lawn’s custodian of records denied the request based on privacy concerns about releasing the pet owners’ personal information. The Court disagreed and ordered disclosure of the requested information on grounds that (i) personal information other than the owner’s name and address appearing on the pet license could be redacted; (ii) there was no significant potential for harm in any subsequent disclosure since plaintiff’s intention was political, not commercial, and plaintiff would retain the information solely for personal use; (iii) plaintiff’s need for the information was in service of the public interest as it would facilitate open discussion of a politician’s political views; and (iv) the Legislature’s overarching intention to favor disclosure of government records militates toward access. It’s worth noting that courts generally do not consider the purpose behind OPRA requests, see Burnett v. County of Bergen, so this Court’s consideration of plaintiff’s intended use of the requested information arguably is inconsistent with New Jersey precedent. In any event, however, the Court reached the same outcome by analyzing plaintiff’s request under the common-law right of access.
  • Finally, in an opinion issued on December 11, 2012, in Rivera v. Office of the County Prosecutor of the County of Bergen, the Superior Court, Law Division, Bergen County undertook a detailed lodestar and contingency fee enhancement analysis to determine the reasonable attorney’s fees a prevailing party is entitled to under OPRA. The Court first engaged in a two-part lodestar analysis, finding that (1) the time billed by plaintiff’s lawyer — including time spent reviewing case law in which he was counsel of record, traveling, litigating the instant matter, and performing paralegal or secretarial duties — was reasonably expended; and (2) the hourly rates charged were reasonable, based on current prevailing market rates in New Jersey, and, more narrowly, for lawyers specializing in OPRA-related matters. The Court then evaluated plaintiff’s application for a contingency enhancement and held it to be warranted, given that (i) the litigation, which presented the question whether the names of individuals with psychiatric difficulties subjected to the use of force by police officers could be released pursuant to OPRA, involved a novel issue and (ii) was a matter of public importance insofar as it dealt with potential system abuse; (iii) time and labor needed to conclude the matter was reasonable; and (iv) counsel proceeded with competence and diligence. In awarding plaintiff’s counsel the accepted lodestar amount, along with a 25% contingency enhancement, the Court implicitly affirmed a policy of seeking to level the playing field by making government agencies responsible for paying counsel fees to a prevailing requestor under OPRA.

You may also like...