Using Expert OPRA Advice To Increase Transparency and Save Money

The Open Public Records Act (OPRA) is getting expensive for New Jersey’s municipalities and agencies. The following are just a few of the more egregious examples.

A court-appointed fact finder recommended that a judge order Raritan Borough to pay Gannett New Jersey media company a record $542,000 in legal fees as a result of an OPRA lawsuit.

A Morris County woman received $150,000 in a settlement to end litigation that included her claims that Mount Olive Township did not turn over public documents to her under OPRA.

Hackensack paid more than $14,000 to settle a claim after a court decided that officials violated OPRA.
These fines add up, and they are on top of incidental costs, such as the frequent need to hire additional employees to respond to increased OPRA requests. This law, meant to benefit taxpayers by increasing transparency, is having the unintended consequence of harming taxpayers by significantly increasing government costs and diverting attention away from job responsibilities. To avoid litigation and its cost, it is imperative that the municipalities and other government entities respond to all OPRA requests properly and on time.

If a governmental entity misses any of OPRA’s strict deadlines, or fails to provide a proper response, or inaccurately withholds information, it should get ready to open up its pocketbook. Under the law, a requestor who prevails in any proceeding is entitled to reasonable attorney fees. But don’t put away the pocketbook just yet, because OPRA also provides that a public official, officer, employee or custodian who knowingly and willfully violates the law shall be subject to a civil penalty ranging from $1,000 to $5,000 per violation. The costs add up and so does the time spent on responding to OPRA requests.

A frequent complaint heard from OPRA custodians is that they do not have sufficient time to conduct their other duties because they spend a majority of their time responding to OPRA requests; this is hardly a model of government efficiency. The answer may be to hire special counsel for OPRA-related issues. Though it may seem like an added expense, the result may well be savings in the long run. It is important to ensure that the OPRA laws work as intended, to increase government transparency; rather than as a source of litigation that drains the public purse.

Many municipalities and government agencies already employ special counsel for areas that require an expert understanding of the law, such as employment issues, COAH litigation or bonding. OPRA matters require that same level of expertise and investment. OPRA is a complex field with many gray areas. It is important to get it right the first time, and get it right on time. Otherwise, the government entity is opening itself up to added costs (in fees paid to outside counsel, fees it might have to pay to a party’s attorneys and possible fines).

The proper responses required under OPRA require a specialized knowledge, and mistakes can be costly. For example, municipalities and other government entities could pay dearly for failure to meet deadlines, missing proper dismissals, or not knowing when a response is, or is not, necessary. Special OPRA counsel will provide the expertise to get the response right the first time. Their advice can be sought by records custodians on an as-needed basis. A proper response to requests can often free up time and let custodians and township attorneys focus on their primary responsibilities.

Many OPRA requests today are being made by attorneys who have developed a specialized OPRA practice. This specialty group is using those well-versed in OPRA to make requests. Unfortunately, it appears that OPRA’s fee-shifting provision has created an incentive for some to pursue fees over documents. Given this changing playing field, it is time for municipalities and other government entities to use their own experts to respond properly and save money. Special OPRA counsel can result in increased transparency for those seeking documents they are entitled to receive, and lead to financial savings for municipalities and taxpayers. Special OPRA counsel creates an opportunity for a win-win solution.

Reprinted with permission from the August 7, 2014 edition of New Jersey Law Journal. © 2014 ALM Media Properties, LLC. all rights reserved. Further duplication without permission is prohibited. ALMReprints.com – 877-257-3382 – reprints@alm.com