The Appellate Division recently issued an important opinion concerning the limits of OPRA’s attorney fee award provision. The court held that a plaintiff who does not seek access to records, but instead claims the public body otherwise is not complying with OPRA, is not entitled to an attorney fee award for litigation success. Kennedy v. Montclair Center Corp. Business Improvement District.

After Kennedy filed a complaint, the District provided him the records he had requested, but denied that it was subject to OPRA. Kennedy litigated over this issue, and eventually the Appellate Division issued an opinion declaring that the District is an agency covered by OPRA. Kennedy then sought over $145,000 in attorney fees related solely to the litigation he pursued after receipt of the requested records.

The court determined that OPRA provides attorney fees only to requestors who succeed in obtaining access to records. Kennedy was not such a requestor–he had already received access to the records he asked for (with attorney fees for that part of the litigation), and the additional litigation over whether the District is subject to OPRA did not result in providing any records to him.

In short, the court said that OPRA is not intended to give fees to those who file litigation to enforce aspects of OPRA, rather than to obtain records.

I’m surprised that this important opinion is not published and precedential. The Appellate Division had never dealt with this issue before, and there have been cases where lower courts have incorrectly ruled that attorney fees may be awarded under OPRA even where the requestor did not gain access to records.