Article by Sanmathi (Sanu) Dev

By:  Sanmathi (Sanu) Dev, Esq.

On April 24, 2017, the New Jersey Superior Court, Camden County, denied a plaintiff’s request for attorney’s fees under the Open Public Records Act (“OPRA”) in the case Grieco v. Borough of Haddon Heights. The Court determined that the public entity inadvertently omitted a record in response to the plaintiff’s OPRA request and that she made no attempt to cooperate with the agency to acquire the missing document prior to initiating a formal lawsuit.

Heather Grieco submitted an OPRA request to the Borough of Haddon Heights (“Borough”) seeking notices to newspapers for all council meetings from November 1, 2014 to April 1, 2015. Within the seven-day deadline imposed by OPRA, the Borough provided documents responsive to Grieco’s request, which included records relating to council meetings held in 2015. However, the Borough did not include proof of publication for the meetings held in 2014.

Two weeks after the Borough’s initial response, Ms. Grieco filed suit in the New Jersey Superior Court alleging violations of OPRA and seeking attorney’s fees. Upon receipt of the lawsuit, the Borough became aware for the first time that it had omitted one of the documents requested by Ms. Grieco. Within three days of learning of this omission, the Borough provided the missing document.

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. In addition, the Court applies a fact-sensitive inquiry in evaluating the government agency’s reasonableness and motivations behind such conduct.

In this case, the Court determined that the Borough inadvertently omitted one responsive document to Ms. Grieco’s OPRA request and only became aware of the omission upon service of the lawsuit. The Court found it significant that almost immediately after the Borough discovered the error, it provided the missing document. Further, the Court determined that the Borough did not act with malice or ill will, as the error was caused by a change in personnel handling the response to the OPRA request. Specifically, the Borough employee who initially started processing the response transferred the task to another employee because the former employee suddenly needed to attend to a critically ill spouse.

Further, the Court considered that Ms. Grieco made no attempt to obtain the missing document from the Borough after receiving the initial records and instead resorted to litigation. The Court explained that the cooperative spirit of OPRA requires some sort of follow up communication by the requestor to the public entity to notify it of a mistake.

Fortunately for the Borough, its good faith efforts to comply with OPRA precluded the requestor from obtaining attorney’s fees through litigation.