In IMO NJ Firemen’s Ass’n Obligation to Provide Relief Applications Under OPRA, A-2810-13T2, the Appellate Division is considering a novel question– whether a public agency may file a declaratory judgment action asking the court to determine that it properly denied an OPRA request, before the requestor has challenged the denial.

This is an important issue for the New Jersey Press Association, which has filed an amicus brief in the appeal. The NJPA argues that OPRA does not permit agencies to seek declaratory relief concerning OPRA requests, and that allowing such suits would have a chilling effect on requestors.

Despite the NJPA’s arguments, I don’t think that OPRA declaratory judgment suits will adversely affect requestors. These actions simply ask a court to decide the question at the heart of any OPRA dispute–whether public access to a government record is required. It is important to resolve such issues, regardless of whether the court action was brought by a requestor or an agency.

The NJPA’s primary concern appears to be that a requestor who wins a declaratory judgment suit will not receive attorney fees, unlike a successful requestor who has filed an OPRA complaint. However, I doubt the court would so rule, if it determines that an agency may bring a declaratory judgment action. Because it is settled law that attorney fees must be awarded to a requestor who prevails in an OPRA dispute, it is likely the Appellate Division would say that a court must award fees to a prevailing requestor in a declaratory judgment OPRA case, even though the legal action was initiated by the public agency.