DENIED OPRA REQUESTS - AND WHAT YOU CAN DO ABOUT THEM
There are a variety of options available to someone who has had their OPRA Request Denied. In some cases, it may be that a request was vaguely worded, or very open ended, and a resolution could be a simple as resubmitting the request in clearer language.
It could be that the information requested genuinely is Exempt from OPRA requests.
What can I do if a custodian denies me access to government records?
OPRA provides that a person who is denied access to a government record can choose:
1. to file suit in Superior Court; or
2. to file a complaint with the Government Records Council. N.J.S.A. 47:1A-6.
A requestor cannot do both.
In Superior Court, a complaint must be filed within 45 days of the denial of access (Mason v. City of Hoboken, 196 NJ 51 (2008)).
There is no statute of limitations for filing a Denial of Access Complaint with the GRC.
How are complaints filed in NJ Superior Court?
To start a summary (expedited) lawsuit in the New Jersey Superior Court, a written complaint and an order to show cause must be prepared and filed with the court. The court requires a filing fee and the requestor must serve the lawsuit papers on the appropriate public official(s). The court will schedule a hearing and resolve the dispute. Decisions may be appealed to the Appellate Division of the New Jersey Superior Court. Successful plaintiffs may be entitled to reasonable attorney fees. Plaintiffs should consider consulting with an attorney to learn about initiating and pursuing lawsuits in the New Jersey Superior Court. The process for filing a complaint with the Government Records Council is described in Section 3 of this guide.
How does one file a complaint with the Government Records Council (GRC)?
A complaint to the Government Records Council must be in writing on the official Denial of Access Complaint form. The complaint should set forth the facts regarding the request for access to the government records, describing the specific records requested, and the circumstances under which the records were requested, and the denial of access by the records custodian of the public agency. Complaint forms are available from the Council office and can also be downloaded here.
Upon receipt of a complaint, the Government Records Council offers the parties the opportunity
to resolve the dispute through mediation before a neutral mediator. Mediation is an informal,
non-adversarial process having the objective of helping the parties reaches a mutually
acceptable, voluntary agreement.
The mediator will help the parties to identify issues, will encourage joint problem-solving, and
will explore settlement alternatives with the parties.
If any party declines mediation or if mediation fails to resolve the matter to the satisfaction of the
parties, the Government Records Council will initiate an investigation concerning the facts and
circumstances set forth in the complaint.
At the request of the Government Records Council, the public agency must provide a Statement
of Information setting forth the facts regarding the request for access to the government records,
describing the specifics of the custodian’s denial to those records.
What happens when the Government Records Council starts investigating a complaint?
Proceedings of the Government Records Council may take many months to process.
Step 1: The Council must decide whether the complaint is within its jurisdiction or whether the complaint is frivolous or without any reasonable factual basis.
Step 2: If the Council concludes that the complaint is outside its jurisdiction or that the complaint is frivolous or without factual basis, it will issue a decision in writing to dismiss the complaint. A copy of the Council’s decision is sent to the complainant and the records custodian.
Step 3: If the Council determines that the complaint is within its jurisdiction and is not frivolous and has a factual basis, the Council will notify the records custodian of the nature of the complaint and the facts and circumstances set forth in the complaint.
Step 4: The custodian will have the opportunity to provide the Council with a response containing information concerning the complaint.
Step 5: If the Council is able to make a determination about whether a record should be provided based upon the complaint and the custodian’s response, the Council will issue a decision in writing and send it to the complainant and the records custodian.
Step 6: If the Council is unable to make a determination about whether a record should be provided based solely upon the submissions, the Council may conduct a hearing on the matter at its discretion. The hearing will be held in conformity with the rules and regulations for hearings by a state agency in contested cases under the Administrative Procedure Act (N.J.S.A. 52:14B-1 et seq.), when they are applicable.
Step 7: Following the hearing, the Council will, by a majority vote of its members, render a decision as to whether the government record in question, or a portion of it, must be made available for public access to the requestor.
Step 8: If the Council determines by a majority vote that a custodian knowingly and willfully violated OPRA and is found to have unreasonably denied access under the totality of the circumstances, the Council will impose penalties provided for under OPRA.
Step 9: A final decision of the Council may be appealed to the Appellate Division of the New Jersey Superior Court.
Meetings held by the Council are subject to the Open Public Meetings Act. The Council may move into closed session during that portion of any proceeding in which the contents of a contested record would be disclosed.
Finally, the Council will not charge any party a fee in regard to complaints filed with the Council.
What else should I know about Council hearings and actions?
Prevailing Party Attorney’s Fees
If represented by counsel, a requestor who prevails in any proceeding shall be entitled to a reasonable attorney’s fee. N.J.S.A. 47:1A-6.
Pursuant to Teeters v. DYFS, 387 N.J. Super. 423 (App.Div. 2006), a complainant is a “prevailing party” if he/she achieves the desired result because the complaint brought about a change (voluntary or otherwise) in the custodian’s conduct. Also, when the requestor is successful (or partially successful) via a judicial decree, a quasi-judicial determination, or a settlement of the parties that indicates access was improperly denied and the requested records are disclosed.
Additionally, pursuant to Mason v. City of Hoboken and City Clerk of the City of Hoboken, 196 N.J. 51 (2008), a complainant is a “prevailing party” if he/she can demonstrate:
1. a factual causal nexus between plaintiff’s litigation and the relief ultimately achieved; and
2. that the relief ultimately secured by plaintiffs had a basis in law.
If the decision of the public agency to deny access to the requested record is upheld, the public agency is not entitled to an attorney’s fee from the requestor under OPRA.
Knowing and Willful Penalty
A public official, officer, employee, or custodian who knowingly and willfully violates OPRA and is found to have unreasonably denied access under the totality of the circumstances shall be subject to a civil penalty of $1,000 for an initial violation, $2,500 for a second violation, and $5,000 for a third violation that occurs within 10 years of an initial violation. N.J.S.A. 47:1A-11.
The penalty shall be collected and enforced in proceedings in accordance with the Penalty Enforcement Law of 1999.
An employee other than the custodian may be assessed a penalty. Appropriate disciplinary proceedings may be initiated against a public official, officer, employee, or custodian against whom a penalty has been imposed.
For more information about the rules pertaining to the GRC’s complaint process, see the GRC’s promulgated regulations (N.J.A.C. 5:105 (2008))