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Appellate Division Limits Attorneys’ Fees in OPRA Case

By on December 12, 2017 in Open Public Records Act with 0 Comments

On November 27, 2017, the New Jersey Appellate Division in Kennedy v. Montclair Center Corporation Business Improvement District issued an unpublished decision in which it determined that the Open Public Records Act (“OPRA”) does not entitle a plaintiff to attorneys’ fees after the public agency satisfied his document request.

Scott Kennedy made an OPRA request to the Montclair Center Corporation Business Improvement District (“Montclair Center”). Not having received an adequate response, Kennedy filed suit against the Montclair Center alleging that it had no OPRA custodian, had no OPRA request form, and charged excessive copying costs in violation of OPRA. After the lawsuit was filed, the Montclair Center provided the requested documents to Kennedy but maintained its position that it was not a public agency subject to OPRA. In a separate action decided in 2014, the Appellate Division ruled that the Montclair Center was a public agency subject to OPRA.[1] The Appellate Division remanded the case to the trial court.

On remand, the trial court addressed the issue of attorneys’ fees. Kennedy argued that he was a prevailing party entitled to attorneys’ fees for both receiving the documents from the Montclair Center and for obtaining a decision from the Appellate Division in the 2014 lawsuit that the Montclair Center was a public agency. The trial court disagreed and only awarded Kennedy counsel fees through the receipt of the documents. Kennedy then appealed to the Appellate Division.

The Appellate Division disagreed with Kennedy and affirmed the trial court. In analyzing N.J.S.A. 47:1A-6, the Appellate Division reasoned that the fee-shifting provision of OPRA only applies to successful challenges regarding access to public records. Further, the right to counsel fees only belongs to an OPRA requestor. The Appellate Division explained that once a party receives full access to requested documents, the party is no longer considered a requestor. In short, a party that chooses to pursue additional relief after obtaining access, even if the relief sought is under OPRA, is no longer an OPRA requestor. Thus, when Kennedy pursued his lawsuit against the Montclair Center after it provided him with the documents, he was no longer a requestor entitled to counsel fees.

[1] Kennedy v. Montclair Ctr. Corp. Bus. Improvement Dist., 2014 N.J. Super. Unpub. LEXIS 1654 (App. Div. June 24, 2014)

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Sanmathi (Sanu) Dev

About the Author

About the Author:

Sanmathi (Sanu) Dev, Esq. concentrates her practice on the representation of boards of education and charter schools in all areas of school law including: labor and employment, special education, Section 504, student discipline, FERPA, Anti-Bullying Bill of Rights Act, student residency, civil rights, tenure, OPRA, and OPMA. In connection with these representations, she is experienced in handling matters before State and Federal courts, including the Office of Administrative Law. Ms. Dev is an experienced special education litigator and defends school districts in due process hearings from inception through trial. In addition, she has handled matters before governmental agencies, including the U.S. Office for Civil Rights and New Jersey Division on Civil Rights. Ms. Dev routinely conducts training and seminars, drafts policies and manuals, and provides strategic advice to school administrators regarding school law issues. Ms. Dev was recently recognized as one of South Jersey’s Awesome Attorneys as published by South Jersey Magazine. She is licensed to practice law in New Jersey, the District Court for the District of New Jersey and Pennsylvania.

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