Since OPRA’s enactment, I’ve seen a number of cases where an attorney files an OPRA request under his own name, without mentioning a client. When the attorney subsequently challenges the denial of the request, before a court or the GRC, it comes to light that the attorney submitted the request in connection with his representation of a client. If the challenge to the public agency’s OPRA request response is successful, does OPRA require that attorney fees be awarded to the client?

There’s no case law addressing this question. In my view, attorney fees cannot be awarded in this situation because the attorney, not the client, is the requestor. OPRA expressly permits attorney fees to be awarded only to the “requestor;” if an attorney is the requestor, he can’t receive attorney fees for litigating over his own request, because he is acting pro se in that case.

This issue was raised in the recent Appellate Division case Rosario v. Port Authority, but the court did not analyze it. The Appellate Division simply affirmed the trial judge, who determined that a fee award was proper because Rosario’s counsel submitted the OPRA request to the Port Authority in his capacity as the authorized agent for Rosario, who was physically unable to make the request. In addition, the Port Authority was aware of counsel’s representation of Rosario.

Where it’s clear that the OPRA request is being submitted on behalf of a specific client, as in Rosario, there’s no issue. But the availability of a fee award is questionable where a request is made by an attorney, who simply identifies himself as the requestor, and does not indicate that it is actually his client who is seeking the records requested.