A Written Request is Required in Order to Obtain Records Under OPRA

Bozzi v. City of Atlantic City, 434 N.J. Super. 326 (App. Div. 2014).  Plaintiff wanted to get a copy of bid specifications for HVAC work at a local public building.  He went to defendant’s official records custodian to make an Open Public Records Act (“OPRA”) request.  There, he was directed to the city engineer’s office.  According to plaintiff, he was then told that “an OPRA form was ‘not necessary.'”  Plaintiff was given the copies, which totaled 69 pages, along with a bill for a flat fee of $25 for copying.  Plaintiff paid the fee and then sued, asserting that the fee charged was in violation of OPRA, which limits copy charges to $.05 per page.

The Law Division agreed with plaintiff.  That court found that the bid documents were covered by OPRA, and awarded plaintiff $21.55 in copying overcharges, counsel fees of over $10,000, and an order enjoining future OPRA violations.  The City appealed, asserting that since plaintiff had not submitted a written OPRA request, he could not succeed on an OPRA claim and that, therefore, the fee award under OPRA also could not stand.  Judge Lihotz, writing for the panel, agreed and reversed the judgment and the fee award.

The issue was one of law, so no deference was to be given to the Law Division’s view.  Judge Lihotz noted that OPRA expressly provides that “[a] request for access to a government record shall be in writing ….,” a requirement that she said is “not gratuitous.”  The writing requirement “gives the government entity a clear understanding of the nature of what is sought and triggers an obligation to comply with OPRA’s provisions to fulfill the request.”  Other states had open records acts that did not require a written request, but New Jersey’s Legislature chose not to adopt that template.  Judge Lihotz would not “rewrit[e[] a plainly-written enactment of the Legislature.”

Judge Lihotz emphasized that this was not a case where plaintiff’s efforts to submit a proper OPRA request were rebuffed.  Rather, the record was clear, and the Law Division found, that “a written OPRA request form was never formally completed and submitted.”

As a result, the finding of an OPRA violation was reversed.  And because counsel fees are available under OPRA only to prevailing parties, the fee award fell as well.

For completeness, Judge Lihotz went on to analyze the issue of whether the documents were covered by OPRA, the City’s other basis for appeal.  She concluded that they were covered, as the Law Division had determined.