|July 23, 2008
NJ Supreme Court Rules on Filing Period and Attorneys Fees in OPRA Cases
In the case of Mason v. Hoboken, A-22-07, decided on July 22, 2008,the New Jersey Supreme Court affirmed the Appellate Division finding that the 45-day filing period of Rule 4:69-6(a), governing actions in lieu of prerogative writ, applies to Open Public Records (OPRA) suits filed in the Superior Court. The Court further found that a plaintiff suing in such an action over denial of an OPRA request who receives the documents during the suit is not necessarily a "prevailing party" entitled to recover attorneys' fees.
In this case, the plaintiff urged that a “rebuttable presumption” should exist in such a case that the plaintiff is a prevailing party entitled to such fees. The justices disagreed, instead supporting the “catalyst theory” in these matters, which allows attorneys fees in OPRA cases only if the requestor can prove facts establishing a “causal nexus” between the litigation and its receipt of the records. However, the Court said that a different standard would apply if an agency fails to respond at all to a request within the seven business days allowed under OPRA. In such cases, the burden shifts to the agency to prove that the suit was not the catalyst for its belated disclosure.
If you have any questions or concerns about this communication, please contact Deborah M. Kole, Staff Attorney, at the League, ex. 137, or at email@example.com. The case can be accessed at: http://www.judiciary.state.nj.us/opinions/index.htm
Very truly yours,
William G. Dressel, Jr.