It’s rare for the federal courts to deal with OPRA issues, but the Third Circuit recently issued a precedential opinion in a case involving an OPRA request for communications between the FBI and the New Jersey Institute of Technology. The court held that NJIT was liable for the requestor’s attorney fees when litigation resulted in the release of some of these records, even though the FBI had directed NJIT not to disclose them. Golden v. NJIT.

NJIT denied the OPRA request because the FBI categorically directed it to withhold the records in question. The requestor filed an OPRA lawsuit, which was removed to federal court due to the FBI’s involvement. During the pendency of this action, the FBI reconsidered its original position and permitted the release of a number of the documents.

The court rejected NJIT’s argument that an attorney fee award was not warranted because it had acted reasonably in denying the OPRA request based on the FBI’s directive. The court correctly noted that there is no reasonableness defense under OPRA’s attorney fee provision; if (as occurred in this case) the suit is the catalyst for release of some records, a fee award is mandatory.

However, the reasonableness argument is beside the point in this case. While the plaintiff here was certainly entitled to attorney fees, the real issue was who should have to pay these fees, NJIT or the FBI. I think the correct answer is the FBI: its directive to NJIT caused the withholding of records and the requestor’s resulting need to file litigation and generate attorney fees.

The Third Circuit based NJIT’s liability on the legally incorrect premise that NJIT should have “exercise[d] independent judgment,” rather than “unquestionably obeying the FBI’s orders to withhold the records.” NJIT had no such choice. The OPRA statute and its implementing executive orders prohibit custodians from refusing to comply with a federal agency’s determination that records are confidential.