It’s well settled that an OPRA complaint must be filed as a summary action, which requires filing an order to show cause, with a verified complaint supported by an affidavit that states the facts based on personal knowledge. However, I’ve handled cases where the requestor’s attorney overlooks this basic requirement. The failure to follow the summary action procedures requires dismissal of the complaint.

The Appellate Division recently issued an unpublished opinion confirming this principle. It said that the summary action procedures “may not be bypassed by [OPRA] plaintiffs,” and non-compliance with these rules renders the complaint a “nullity.” African American Data and Research Inst. v. Hitchner.

In this case, the trial judge determined that the OPRA plaintiff’s failure to verify the complaint, and to submit a supporting affidavit, did not matter, and issued a ruling requiring disclosure of some of the requested documents. The Appellate Division reversed, and dismissed the complaint. The court emphasized that the failures to verify the complaint and submit an affidavit in an OPRA suit are “fatal procedural deficiencies.”