On September 30th the Appellate Division issued an unpublished opinion, Academy Express v. Rutgers, which deals with several critical OPRA issues. Most importantly, the court ruled that a custodian is not obligated to give a detailed description of the records that are withheld in the response to the OPRA request.

Requestors often argue that such a description must be provided by the agency to enable them to assess the validity of the stated basis for withholding the record, but the court rejected this claim.

In addition, the court stated that an OPRA complaint cannot be brought as part of a complaint asserting non-OPRA claims, and it reaffirmed that a request for all correspondence concerning a topic is invalid.

Academy Express filed a multi-count complaint against Rutgers concerning Rutgers’ failure to award it a contract to operate the University’s bus system. The complaint also included an OPRA claim regarding Rutgers’ response to Academy’s requests for documents related to the contract award. The trial judge rejected the various claims pertaining to the contract, but determined that Rutgers had violated OPRA and was liable for attorney fees.

One violation, said the trial judge, was that  while Rutgers correctly denied access to a few pages of another bidder’s bid proposal under the exemption for proprietary, commercial or financial material, it did not sufficiently describe the withheld documents, leaving Academy “unable to ascertain the propriety of the assertion of privilege.”

The Appellate Division disagreed. It found that Rutgers’ response was proper, where it simply identified the applicable exemption and the pages that were redacted. And crucially, the Appellate Division said there is no authority supporting the claim that “notwithstanding the proper withholding of a document, a perceived shortcoming in the description of what was properly withheld would be sufficient to find a violation of OPRA.”

This is the first appellate court opinion to deal with the argument frequently made by requestors that a custodian’s response to a request must provide a detailed description of any document that is withheld. The court recognized that the law does not impose such a requirement. The statute only requires that the custodian state the basis for denying a request, as Rutgers did in this case.

The Appellate Division also held that Academy’s request for all correspondence concerning the RFP and the contract award was an invalid request. This is yet another example of what I’ve noted before: requestors continue to make this type of request, even though courts consistently say such a request is invalid.

Finally, attorneys should take note of the court’s ruling that an OPRA case cannot be brought as part of a complaint that asserts other claims. An OPRA complaint must be filed as a summary action and therefore cannot be litigated together with non-OPRA claims.

In a case of first impression, the Appellate Division held today that neither OPRA nor any other law authorizes an OPRA requestor to file an anonymous court complaint. A.A. v. Gramiccioni.

“A.A.” submitted an anonymous OPRA request, as permitted by the statute, to the Monmouth County Prosecutor’s Office. After the request was denied, he filed a complaint in Superior Court, continuing to call himself A.A. and claiming the right to proceed in court without revealing his identity. (I refer to A.A. as “he” for ease of writing; I don’t know if A.A. is male or female).

The appellate court said that the controlling principle is that a litigant in a court proceeding must reveal his or her identity, in the absence of statutory or court rule authorization, or a compelling reason. No  court rule permits anonymous OPRA complaints, and the court concluded that OPRA also does not grant such authorization. The court noted that unlike the statutes that expressly permit litigants to be anonymous, such as in actions involving child sexual abuse victims, OPRA does not provide that right to requestors.

The Appellate Division observed that in the absence of statutory authorization, a litigant must show that there is good cause for shielding his or her identity. The court said that the plaintiff here had shown no reason, let alone good cause, for exempting him from the basic principle that litigants may not be anonymous.

In addition to establishing the precedent that OPRA does not authorize anonymous court filings, the opinion contains another important ruling. The trial judge had dismissed plaintiff’s action on the basis that plaintiff did not file an order to show cause and verified complaint. An anonymous plaintiff, of course, cannot verify the complaint, because a verification requires an affidavit sworn to by the plaintiff.

The Appellate Division agreed that this defect requires dismissal of an OPRA complaint. The court reaffirmed the principle that an OPRA complaint must be filed in accordance with the summary action requirements of the court rules.

This is the first time that the Appellate Division has stated specifically that the absence of a verification mandates dismissal of an OPRA complaint. This ruling may ultimately prove to be highly significant, by putting requestors on notice that OPRA court actions will be dismissed if they do not include a properly verified complaint.

The Appellate Division issued an opinion today, Shipyard Associates v. Hoboken, which upheld the denial of an OPRA request as overly broad. Although the opinion is not precedential, it provides a helpful summary of how to analyze the often difficult question of whether a request asks for specific records or instead is an invalid demand for research.

In Shipyard, the requestor submitted three requests, all seeking information about certain ordinances. The court said that the first request, which asked for “any and all” documents concerning the ordinances, was invalid as a blanket request. The court determined that another request, for “all documents in the…office’s files concerning [the ordinances],” was deficient for the same reason.

The third request sought:

Copies of all correspondence (including e-mails), transcripts, reports, memos, notes, minutes   prepared by and received by Hoboken employees, Hoboken’s agents, members of Hoboken City Council concerning [the ordinances].

The court viewed this request as being narrower than the others, but still not specific enough. It concluded that the request was invalid because it didn’t identify any Hoboken employees or agents with regard to correspondence, and contained no identifiers other than generic terms such as “reports” and “notes.” The court characterized this request as an open-ended demand which improperly required the custodian to search through all files and analyze them in order to identify the relevant records.

As noted above, the opinion is not precedential, so the court’s specific rulings with regard to the three requests are not binding in other cases. The value of this opinion for public bodies is that it contains a cogent description of the law governing what constitutes an invalid OPRA request. The court succinctly summarized the key cases on overly-broad requests and clearly explained the reasoning in each case. This summary will be a useful resource for custodians, particularly because requestors constantly submit extremely broad requests.

There is one troubling aspect of the court’s opinion: it remanded the requestor’s common law claim for consideration, because the trial judge had not addressed it. The Appellate Division stated, without explanation, that a request that is overly broad under OPRA may still present a common law claim for disclosure of the records. I think this is incorrect. If a request fails to identify the records sought, it necessarily follows that the common law balancing test–which requires an analysis of the specific records requested– cannot be performed.

In a published opinion issued earlier this week, Opderbeck v. Midland Park Bd. of Ed., the Appellate Division held that the agenda of open meetings provided to the public by public bodies does not have to include release of the documents referred to in the agenda. Although the court was interpreting the requirements of the Open Public Meetings Act (OPMA), its opinion also has relevance under OPRA.

The appeal challenged a trial court injunction which required the Midland Park Board of Education to post on its website not just the agenda for its public meetings, as required by the OPMA, but also all of the documents and attachments referenced in the agenda. The order exempted from the publication requirement any documents the Board believed to be confidential under OPRA.

The court held that the OPMA did not authorize this order. It concluded that the OPMA only mandates the advance disclosure of meeting agendas, and does not impose a legal obligation to include the documents mentioned in the agendas in this disclosure.

The Appellate Division added that OPRA also does not require the posting of agenda documents. The court did not give a detailed explanation in this regard, but its point is clear: in the absence of a specific OPRA request, a public body is not legally obligated to release documents that are in its possession. The trial judge’s opinion ignored this basic principle, in mandating that the Board automatically post all non-exempt documents together with the agendas.

In an unpublished opinion issued today, the Appellate Division affirmed the GRC’s decision that the City of Orange should not be penalized for its actions in responding to an OPRA request.

The City responded belatedly to the request for a list of active lawsuits involving the City. In addition, its response omitted several relevant suits, but the requestor was already aware of the existence of these cases. The GRC concluded there was no willful and knowing violation of OPRA under these circumstances.

The court agreed, noting that the City did create lists for the requestor and was “generally proactive” in dealing with her inquiries. The court also emphasized that the omission of a few cases did not constitute a denial of access to records, because the requestor already had the requested information about these lawsuits.

Although the opinion has no precedential value, it’s interesting as an example of the tendency of the courts (as I’ve previously noted here) to excuse technical violations of OPRA, as long as the public body acted reasonably in dealing with the request.

One of OPRA’s most significant provisions is the requirement that public bodies must pay the attorney fees of a requestor who prevails in litigation. What’s often overlooked is that a public entity can defeat an OPRA claim, and still have to pay a substantial attorney fee award, if the court determines that the requestor may obtain the documents under the common law right to public records.

For example, as discussed here, an Atlantic County trial judge recently held that a public body had correctly denied an OPRA request, but awarded over $45,000 to a plaintiff under the common law. The judge determined that he had the authority to make this award under a 2008 Supreme Court opinion, Mason v. City of Hoboken.

Until the Mason opinion, attorney fees had never been awarded in common law records suits. This longstanding practice was overturned by a single, gratuitous sentence in the Supreme Court’s opinion.

Mason involved two issues: the statute of limitations applicable to OPRA lawsuits, and whether the “catalyst theory” of attorney fee awards applies under OPRA. The question of awarding attorney fees under the common law right to know was not raised in the briefs or during argument; I know this because I argued this case for the State. Nevertheless, after a lengthy discussion of OPRA’s attorney fee provision and the catalyst theory, the Supreme Court said:

“The parties have not addressed at length whether the question of attorney’s fees merits  different treatment in an action brought under the common law. Absent an apparent, theoretical basis for such a distinction, we conclude that the catalyst theory applies to common law suits as well.”

Based on this statement, some courts have awarded attorney fees where a plaintiff is successful solely on a common law claim. Although the Appellate Division has determined, in non-precedential, unpublished opinions, that fees may be denied to a successful common law plaintiff, see Paff v. Garwood and Kahler v. State Police, these rulings say that Mason permits a judge to exercise discretion to grant fees in an individual case, such as where the denial of access to the record was unreasonable.

This result is completely contrary to New Jersey law. As the Mason Court itself recognized, New Jersey follows the “American Rule,” under which the prevailing litigant cannot recover attorney fees from the losing party, unless such shifting of fees is specifically permitted by statute, court rule or contract. The common law right to public records, unlike OPRA, contains no authorization to award fees to the prevailing party.

The Mason opinion did not deal with this clear barrier to awarding fees in common law cases. I think that if this issue were to be presented to the Supreme Court now, with the argument fully briefed, the Court would conclude that a judge has no discretion to award fees under the common law. But no such case is before the Court currently. The Atlantic County case mentioned above has been appealed, but it is far from reaching Supreme Court review.

As a result, the Supreme Court’s curious statement in Mason must be followed by the courts at this time. Public bodies should keep in mind that even if there is a strong basis under OPRA to deny a records request, there is still a risk that a judge may grant the request under the common law, and require payment of attorney fees.