In a recent opinion dismissing an OPRA declaratory judgment suit brought by a town, discussed here, the judge also said that the requestor’s New Jersey Civil Rights Act claim against the town was still open. The judge did not mention the allegations underlying this claim or analyze the legal arguments in any way.

A valid Civil Rights Act cause of action requires showing that the plaintiff’s constitutional rights have been violated. It is not unusual for requestors to include a count in an OPRA lawsuit alleging that the public body’s denial of access to records also violated their constitutional rights. However, the courts have not addressed whether such a claim is legally viable in an OPRA dispute.

In this context, a civil rights claim rests on the theory that the improper denial of access to public records violates a requestor’s First Amendment right to obtain information from the government. News organizations argue that this is part of their constitutional right to gather news. Over 20 years ago, in public records cases involving the old Right to Know Law and the common law, the New Jersey Appellate Division rejected the argument that there is a constitutional right to government information. There has been no New Jersey case law on this subject since then.

It seems to me that OPRA’s mandates should not be transformed into constitutional rights, and that the earlier court opinions should continue to apply to prohibit Civil Rights Act claims based on OPRA violations. However, the issue of whether a denial of access to records may also be a constitutional violation cannot be considered settled; it is not clear that a court today would apply the pre-OPRA judicial opinions to this question, in view of the sweeping changes to New Jersey public records law and policy that have resulted from the passage of OPRA.

Resolution of this issue has important consequences for public bodies, because civil rights litigation exposes them to the risk of substantial monetary damage claims.