The Town Crier - Legislative Backgrounder

This post is the third in a series of blog posts to detail the amendments proposed in S-106, which amends the Open Public Meetings Act (OPMA) and S-107, which amends the Open Public Records Act (OPRA). 

Current law:

The OPMA, specifically N.J.S.A. 10:4-15, currently allows an individual to institute a proceeding in lieu of prerogative writ in the Superior Court to challenge any action taken by a public body on the grounds that the action was taken at a meeting that failed to meet OPMA requirements.  The OPMA also allows for any person to apply to the Superior Court for injunctive orders and other remedies to ensure compliance with provisions of the Act. While the OPMA provides these mechanisms for relief it does not currently provide for prevailing attorney fees.

OPRA, specifically N.J.S.A. 47:1A-6, currently allows individuals denied access to a government record, at their discretion, the option to institute a proceeding to challenge the record custodian’s decision by filing action in Superior Court or file a complaint with the Government Records Council. The public agency has the burden of proving that the denial of access is authorized by law. A requestor who prevails in any proceeding shall be entitled to a reasonable attorney’s fee.

Proposed legislation:

Section 8 and 9 of S-106 amends the OPMA, to provide that “any party, other than a public body” (emphasis added) that prevails in instituting a proceeding in lieu of prerogative writ in the Superior Court, and/or any party that prevails before the Superior Court for injunctive orders or other remedies, “shall be” (emphasis added) awarded “the amount of reasonable attorney’s fees” that shall be “paid by the public body”  (emphasis added.)

This new provision will be in addition to the court declaring such action void or any other relief the court may impose.  

Please note that this section also amends the time frame to bring such a claim from 45 days after the action to 45 calendar days after the minutes of the meeting have been approved and posted on the public body’s website. 

S-107 section 6 amends OPRA, specifically N.J.S.A. 47:1A-6, to continue the mandatory prevailing attorney fees for requestors but adds a very narrow exception to prevailing fees when records required by law to be made, maintained or kept on file do not exist at the time of the request.  
 

This exception only applies if both:

the failure to make, maintain, or keep the record is due to mere negligence or no fault on the part of the public agency; and

the requestor was informed in a written statement signed and dated by the records custodian indicating that the record does not exist or no longer exists, the specific efforts taken to obtain the record and why the record could not be produced. 

S-107 section 6 amends OPRA, specifically N.J.S.A. 47:1A-6, to include language that under appropriate circumstances, the rules of the court, and N.J.S.A. 2A:15-59.1 shall apply for frivolous causes of action.

We would note the following:

N.J.S.A. 2A:15-59.1 allows either a plaintiff or defendant who prevails in a civil action to be awarded all reasonable litigation cost and reasonable attorney fees if the judge finds at any time during the proceeding or upon judgment that a compliant, counterclaim, cross-claim or defense of the non-prevailing person was frivolous. In order to be a frivolous claim the judge must find on the basis of the pleadings, discovery or evidence presented that either (1) it was bad faith, solely for the purpose of harassment, delay or malicious injury; or (2) the non-prevailing party knew or should have known that the claim was without any reasonable basis in law or equity and could not be supported by a good faith argument for an extension, modification or reversal of existing law. If seeking an award under frivolous case an application must be made to the court supported with a detailed affidavit.

We note the following concerns:

• Expanding mandatory prevailing attorney fees for violations of OPMA will lead to a greater cottage industry that evolved from prevailing attorney fees in OPRA.
• Courts and the Government Records Council need the flexibility to award reasonable attorney fees based on the given circumstances of a particular case, not a statutory mandate. 
• Continuing mandatory prevailing attorney fees in OPRA and expanding them in OPMA will increase local government costs, which are ultimately borne by property taxpayers.

Although the League of Municipalities is a strong proponent of openness and transparency in government, we must continue to oppose both S-106 and S-107 as neither bill addresses the expenses municipalities currently incur and will incur under the new provisions.  Currently complying with the Open Public Records Act (OPRA), municipalities hire additional staff, incur increasing legal expenses to ensure compliance, and expend funds defending litigation based on existing Government Record Council (GRC) and conflicting case law. While well-meaning, OPRA has become fraught with abuse causing municipalities to expend limited administrative and financial resources at the expense and detriment of their taxpayers.    In addition, some of the new provisions, especially under the Open Public Meetings Act (OPMA), will establish bureaucratic processes for public meetings without consideration for operations or meeting the needs of our residents.

We also ask that you consider passing a resolution calling for a study commission, based on a League Conference resolution from last year, instead of this legislation.