Recent articles, such as this one, have reported on the statistic that the State has paid around $1 million over the past four years in plaintiffs’ attorney fees, for OPRA lawsuits that have been either lost or settled by the State. The premise of these articles is that the government’s improper withholding of records costs the State’s taxpayers a lot of money. Unfortunately, these articles don’t report on the other side of the coin–the many cases where requestors have litigated and lost their OPRA claims.

In my experience, the State and other public bodies win far more OPRA cases than they lose. This means that taxpayers are paying much more for requestors’ unsuccessful litigation: in all of these cases, public bodies must pay for attorneys to respond to the incorrect OPRA claims made by requestors.

A recent Appellate Division OPRA opinion demonstrates this point. Signature Information Solutions v. Jersey City MUA, did not involve the withholding of records; the public body provided a report to the requestor that satisfied the request. Nor was this a case where the press or a citizen sought records to learn about a governmental issue; instead, the requestor was a for-profit company that sought data so that it could sell this public information to others. The case was simply about the requestor’s claim for attorney fees, based on its argument that it had prevailed in the litigation.

The court firmly rejected this claim, holding that the requestor could not recover attorney fees because its request was invalid, and the public body did not improperly deny access to records.

Thus, the MUA–which did not violate OPRA–had to pay its own attorneys a presumably significant amount to defend it, not just in the trial court, but also on appeal.

This is just one example of the common situation where taxpayers have to bear the costs of OPRA requestors’ unsuccessful litigation.

Raritan Borough has settled its appeal of an OPRA case, Gannett v. Raritan Borough, by agreeing to pay $650,000.

This means that the court will not issue an opinion in what was one of the most important pending OPRA cases. The appeal involved several novel, significant issues concerning access to records in electronic format and the amount a public entity may charge the requestor for converting the records to that format.

An appellate court opinion also would have established precedent governing how attorney fee awards should be calculated under OPRA. The $650,000 settlement represents, by far, the largest attorney fee amount paid by a public body to a prevailing OPRA requestor. While the case is not precedential, it does serve as a warning that some OPRA matters can generate extremely high attorney fee liability for public bodies.