How to Challenge a Denial of Access to Records

You or your client have been denied access to records by a public agency.  What is the next step?

First, make sure you have a written denial.  If you do not have a written denial, then the agency may claim that they never received your OPRA request.  If you receive a denial over the phone, confirm the denial in writing.

Second, decide whether to file your denial of access complaint in Superior Court or with the Government Records Council (“GRC”).  The strengths and weaknesses of each approach vary greatly.  For now, it is important to know that the statute of limitations to file in Superior Court is within 45 days after the date of the denial.  (This time limit may be tolled or extended through negotiations or an agreement with the agency).  The GRC has no statute of limitations to file, but if you delay then you risk having the records destroyed or deleted pursuant to document retention policies or inadvertence.  The GRC’s website is here.  A copy of the GRC’s complaint form is here.

If You File In Superior Court

OPRA cases that are filed in Superior Court must be initiated as “summary actions.”  This means that, unlike most cases in Superior Court, it is not enough to simply file and serve a complaint.  Rather, you or your attorney must follow a very specific procedure for initiating an OPRA lawsuit.  OPRA lawsuits must be initiated by filing a verified complaint, order to show cause, and supporting documents.  Supporting documents may consist of affidavits, certifications, and legal briefs.  Unlike a regular case, the Complaint must be verified, which means that the plaintiff or someone else with personal knowledge must attest that the facts set forth in the complaint are true.  If you have an attorney, your attorney must file these documents electronically via eCourts.

If you do not initiate an OPRA lawsuit with a verified complaint and order to show cause, the Court may dismiss your case.  If your complaint is not verified, the Court may dismiss your case.

Once your documents are filed, the case will be referred to the County’s OPRA judge.  Each County has an assigned OPRA judge, and most counties also have a backup OPRA judge.  The list of designated OPRA judges is here.  Please note that this list is not always current, so you may want to call the Clerk’s office for the County in which you’re filing to determine the name of the Judge who will be assigned your case.  Even then, cases are not always assigned to the designated OPRA judge because there might be a conflict of interest.

Once your case is filed, the Court will review your papers and determine whether you have made an initial showing that you were denied access to records.  Almost all initial filings will meet this requirement.  The Court will file the Order to Show Cause, which will set deadlines for (1) you to serve the filed papers on the public agency; (2) for the public agency to file answering papers; (3) for you to file reply papers; and (4) a court date for the case to be argued (called a “return date”).  Depending on the Court, the Court may decide the case on the return date, or the Court may issue a written or oral opinion on a day after the return date.

While it is less frequent, the Court may also authorize additional proceedings or ask for additional information from either side.  Although its rare, the Court may order limited discovery (which is the exchange of information between the parties under the supervision of the Court).  The Court may also order that the public agency file the documents at issue directly with the Judge’s chambers for in camera review.

If the Court agrees with the agency’s decision to deny access to records, then the Court will affirm the denial in an order and that normally ends the case.  If the Court grants access to some or all of the records, then the Court will order disclosure of the records within a certain time period (usually 20 days).  If the plaintiff has prevailed, then either the parties will reach an agreement regarding prevailing party counsel fees or the Court will determine the amount.

Of course, this is intended as a general discussion of OPRA cases.  Every case is unique, and what may happen in any particular case depends on the facts and circumstances of the case.

Instead of filing a case in Superior Court, you can file a case with the GRC, but that process is substantially different from filing in Superior Court, so that will be the subject of a future post.  Because these differences are important, you should consult with an attorney before deciding where to file your complaint.

It is important to have an attorney experienced in handling OPRA matters.  If you have a question about New Jersey’s Open Public Records Act or any other legal issue, call us at 908-894-5656 or email us at info@luerslaw.

(c) Copyright Law Offices of Walter M. Luers, LLC

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