Our municipality is being sued in state court over denial of a variance and using OPRA. Doesn’t he need to use the discovery rules to obtain material concerning litigation as parties have always done?

No. Recent case law indicates that he may well be able to use the Open Public Records Act in this manner, to supplement the Rules of Discovery or even instead of the usual discovery process. In the case of Mid-Atlantic Recycling Technologies, Inc. v. City of Vineland, Law Div. (Stanger, A.J.S.C.), an unpublished opinion, the plaintiff sought documents under Open Public Records Act (OPRA) relating to its federal suit claiming the city selectively enforces environmental claims. The Court ordered the City to turn over the 12,000 pages of documents requested. Judge Stanger rejected Vineland's claim that this use of OPRA was a circumvention of discovery rules.

In the related federal case in the District of New Jersey, Mid-Atlantic Recycling Technologies, Inc. v. City of Vineland, et al., U.S. District Court (Donio, U.S.M.J.), the Court denied the defendant's request for a protective order to prevent plaintiff from obtaining the records in question under OPRA. The Court found that Rule 26 of the Federal Rules of Civil Procedure did not, as defendant claimed, override a litigant's right to obtain documents under OPRA from a governmental entity that is a party to the litigation.

Therefore, municipalities should honor an otherwise valid OPRA request from an opposing party in litigation related to the subject matter of the litigation.

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1. I have heard that the Attorney General has specifically exempted attorneys from the Open Public Records Act (OPRA). Is this true, and if so, why are they given special treatment?
2. Is email sent by a municipal employee subject to the Open Public Records Act? If so, what about email sent from his or her home computer?
3. Our municipality is being sued in state court over denial of a variance and using OPRA. Doesn’t he need to use the discovery rules to obtain material concerning litigation as parties have always done?
4. With Open Public Records Act (OPRA), what do I do with attorney-client privilege information, such as with detailed bills, when a request is sent?
5. Is the financial disclosure form that I file under the Local Public Ethics law as a municipal official subject to release under the Open Public Records Act (OPRA)?
6. I am a municipal clerk and a reporter for a regional newspaper recently called and asked for the salaries of all municipal employees. Do I have to release this information?
7. I requested a transcript of a municipality meeting and was told it takes weeks, don't they have to provide this to me within seven business days of my request under the law?
8. A resident who had a variance application denied has asked me for all “similar variance denials” by the municipality. How would I handle this?
9. Do requestors have to use the official Open Public Records Act (OPRA) form?
10. The court awarded substantial attorneys fees to the plaintiff in a settlement with our municipality. Can such fees be ordered in the context of a settlement?