Court Finds That Uncooperative OPRA Litigant is Not Entitled to Attorney’s Fees

May 22, 2017 | Written by: Tara St. Angelo, Esq. | Share

Typically, a prevailing party in a lawsuit seeking disclosure of records under the Open Public Records Act (OPRA) is entitled to attorney’s fees.  N.J.S.A. 47:1A-6.  However, the Court held in Grieco v. Borough of Haddon Heights, No. L-2876-15 (N.J. Super. Ct. Law Div. Oct. 19, 2015) that an uncooperative litigant who rushed into Court instead of alerting the municipality to an obvious mistake in its production of documents was not entitled to attorney’s fees.

The plaintiff requested copies of notices that were sent to the newspapers for all governing body meetings between November 1, 2014 through April 1, 2015.  Due to a personal emergency, the municipal clerk turned the request over to the deputy clerk, after having compiled some of the responsive documents.  The deputy clerk responded to the request within the statutorily mandated time period, but only included the requested documents as to the 2015 meetings and inadvertently did not include the records as to the four meetings in 2014.  Without contacting the municipality to inquire about the missing 2014 documents, the plaintiff filed suit two weeks later.  Within three days of being served with the lawsuit, the municipality produced the missing records.  The plaintiff maintained the action in order to seek attorneys’ fees.

The Court found that in previous cases, “the Supreme Court has directed courts to evaluate the motivations for an agency’s decision in denying or failing to turn over government records.”  The Court turned to the decision in Mason v. City of Hoboken, 196 N.J. 51, 76 (2008).  The Court in Mason rejected a rebuttable presumption that a plaintiff is a prevailing party whenever a public entity discloses a record any time after a lawsuit is filed.  Id. at 77-79.  The Court in Mason held that such an approach would incentivize litigation over attempts at cooperation.  In Greico, the Court took a similar approach stating, “to award attorney’s fees in such a situation would incentivize requestors to keep silent when custodians of records make simple unintentional errors…[and] discourage agencies from voluntarily providing any documents to requestors after suit has been filed…” 

 The Court also held that “OPRA envisions cooperation between requestors and government agencies.”  Greico, supra.  The Court cited the provision of OPRA requiring that a custodian and requestor must attempt to “reach a reasonable solution” when responding to a request would disrupt the agency’s operations.  N.J.S.A. 47:1A-5(g).  The Court indicated that “plaintiff made no attempt to cooperate or work with defendants in order to acquire the 2014 records.”  Greico, supra.  “Thus, a problem that could [have been] solved with a phone call quickly spiral[ed] into litigation…”  Id. 

Therefore, the holding in Greico demonstrates that Courts will not award attorney’s fees to an OPRA requestor when records were inadvertently withheld or produced in close proximity to the filing of the complaint.