No Attorneys’ Fees Under OPRA Where Requested Documents Were Produced Before OPRA Lawsuit Was Filed

Stop & Shop Supermarket Co., LLC v. County of Bergen, ___ N.J. Super. ___ (App. Div. 2017).  The Open Public Records Act, N.J.S.A. 47:1A-1 to -13 (“OPRA”), permits suits for access to public records covered by OPRA.  A successful OPRA litigant is entitled to attorneys’ fees.  But can an OPRA plaintiff sue and get fees if suit is not filed until after requested documents have already been made available?  That was the question in this case.  Writing for the Appellate Division, Judge Leone said “no.”

Plaintiff Stop & Shop pursued an objection to a development application, filed in 2011 with the Bergen County Planning Board, for construction of a Shop-Rite supermarket.  In connection with that application, Stop & Shop filed two OPRA requests, one in July 2011, as to which requested documents were provided in August 2011, and one in June 2014, in response to which documents were provided on July 3, 2014.  Stop & Shop complained that it should have received in 2011 the documents produced in 2014.  The Board agreed to consider those documents at its July 16, 2014 hearing on the Shop-Rite application.  On August 20, 2014, the Board granted Shop-Rite’s application.  The Board’s approval resolution stated that it had considered Stop & Shop documents.

On August 20, 2014, two days after the development approval and over 45 days after Stop & Shop had received the last of the documents that it had sought under OPRA, Stop & Shop filed an action for a declaratory judgment that its rights under OPRA and the common law right of access had been violated.  The Law Division granted a defense motion to dismiss for failure to state a claim, finding that the case was moot because Stop & Shop had received the documents before filing suit.  On Stop & Shop’s appeal, the Appellate Division applied the de novo standard of review, and affirmed.

Judge Leone agreed that the case was moot.  OPRA authorizes suit only by a person who “is denied access to a government record ….” (emphasis by Judge Leone).  “Here, access was allowed even before Stop & Shop filed suit.”

Stop & Shop tried to argue that the case was not moot because Stop & Shop still sought attorneys’ fees under OPRA.  But the pre-suit provision of the records again barred the claim.  Only a prevailing party under OPRA can get fees, and Stop & Shop did not prevail (since it already had the documents).  Nor was Stop & Shop a catalyst for the production of the requested documents.

Stop & Shop made other arguments against mootness.  Judge Leone found none of them persuasive.  The case was properly dismissed as moot.

 

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