A Capehart Scatchard Blog

Counsel Fees Denied in OPRA Case for Mootness

On June 14, 2017, the New Jersey Appellate Division in Stop & Shop Supermarket Company v. Bergen County Board of Chosen Freeholders held that a requestor who makes a request for records under the Open Public Records Act (“OPRA”) and receives such records prior to initiating formal litigation, even if the response is delayed, is not entitled to attorney’s fees because the issue is considered moot.

Stop & Shop Supermarket (“Stop & Shop”) challenged the site plan application of Inserra Supermarkets, Inc. (“Inserra”) before the Bergen County Planning Board and Bergen County Board of Chosen Freeholders (the “Boards”). On July 7, 2011, Stop & Shop submitted two OPRA requests to the Boards seeking documents regarding Inserra’s site plan application, to which Stop & Shop received responsive documents on August 8, 2011. Approximately three years later on June 26, 2014, Stop & Shop submitted another OPRA request seeking Inserra’s site plan application documents. On July 3, 2014, the Boards responded with additional documents which were not part of the August 2011 OPRA response.

Stop & Shop then filed a declaratory judgment action in the Superior Court of New Jersey – Law Division against the Boards seeking a finding that the Boards violated OPRA and the common law right of access for failure to provide all of the requested documents in the August 2011 response. Stop & Shop also demanded counsel fees. The Boards filed a motion to dismiss for mootness, which the Law Division granted. Stop & Shop appealed.

In OPRA cases, if the Court finds that the government entity violated the statute, then the requestor is generally considered a prevailing party entitled to attorney’s fees. The Court considers whether the lawsuit was a catalyst in causing the public body to comply with the law.

Here, the Appellate Division affirmed the Law Division’s reasoning that since Stop & Shop already received all of the documents it sought, its litigation was moot. Simply stated, OPRA litigation is for requestors who are improperly denied access – here, no access was denied. There was no justiciable controversy. Further, the Boards voluntarily provided the documents prior to formal litigation, thereby invalidating Stop & Shop’s argument that it was a catalyst in the production of documents. For these reasons, the Appellate Division upheld the dismissal of Stop & Shop’s OPRA complaint.


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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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