Update on government records (OPRA) and citizen rights

You may beat the system but still have to pay your attorney fees.   It is not a sure thing that a citizen filing suit against governmental agencies who refuse or delay releasing public records will be able to recover legal fees.  The state’s law has a key attorney fee shifting weapon available to private citizens against recalcitrant agencies.  New Jersey’s OPRA is one of the few state and federal statutes allowing fee shifting. The principal behind fee shifting is to enable those who believe that they have been wronged to hire a lawyer to take on a case in a matter of the broad public interest.  The New Jersey Supreme Court has ruled that plaintiffs in lawsuits against public entities and their lawyers willing to take on such challenges must show that it was the institution of the lawsuit that caused the governmental agency to provide the public records.   In a recent decision, the high court ruled that fee shifting is allowed under the Open Public Records Act (OPRA) if an agency releases the records after a suit was filed and sometimes even before the issue is adjudicated but the court has a critical caveat, it doesn’t mean that there will be fee shifts all of the time.

The Court has determined that if someone sues the government for the documents and the agency turns them over before the court decides the issue, the facts or records must show it was the filing of the suit that effectively caused the agency to comply before the plaintiff can get fees from the agency.  The significance of the case is that no one should presume that a citizen fighting the system to obtain public records will have his/her/its fees and costs reimbursed.  Rather, the party and their attorney will have to evaluate whether in the end a victory comes at a significant financial expense to the party.   While encouraging this recent case requires a sober analysis of all issues before a lawsuit is filed.

For more information on this decision, contact Bonnie Wright, Esq. at bwright@hnwlaw.com/

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