OPRA Records Custodian Cannot Bring Declaratory Judgment Case to Preempt OPRA Suit by Requestor

In re New Jersey Firemen’s Ass’n Obligation to Provide Relief Applications Under the Open Public Records Act, 443 N.J. Super. 238 (App. Div. 2015).  The OPRA (Open Public Records Act) opinions just keep on coming.  This lengthy opinion by Judge Ostrer addressed two issues.  The major question was whether a government records custodian may bring an action seeking “a declaratory judgment that it properly denied access to a record under OPRA and the common law right of access.”  After analyzing the Declaratory Judgment Act, N.J.S.A. 2A:16-50 to -62 (“DJA”), in detail, Judge Ostrer concluded that a declaratory judgment action by a custodian was not allowed under either OPRA or the common law right of access.  He then ruled that the Firemen’s Association, which the Appellate Division had previously held to be covered by OPRA, was obligated to provide the records at issue, which the requestor had sought via a counterclaim in the declaratory judgment case.  The Appellate Division thus reversed a ruling of the Law Division that a privacy provision of OPRA permitted the records to be withheld.

The declaratory judgment issue consumed most of Judge Ostrer’s opinion.  He began by presenting an extensive catalog of DJA law that will be an excellent resource for anyone involved in declaratory judgment matters.  Among other things, Judge Ostrer noted that the DJA is to be liberally construed, but that relief under the statute is “procedural in nature; it does not create substantive rights to relief.”  Citing numerous cases from New Jersey and state and federal decisions from other jurisdictions, Judge Ostrer stated that “if there is no private right of action under a particular statute, a party may not secure a declaration of its statutory rights by seeking relief under the DJA.”  OPRA did not afford custodians any right of action.  Thus, the Firemen’s Association could not try to “preempt” an OPRA suit by the requestor by striking first with a DJA action.

On the merits, Judge Ostrer ruled for the requestor.  He had sought records relating to “relief payments” that the Firemen’s Association made to one of its members.  (For a discussion of relief payments, see Paff v. New Jersey State Firemen’s Ass’n, 431 N.J. Super. 278 (App. Div. 2013), discussed here).   Judge Ostrer applied the multi-factor balancing test stated in Doe v. Poritz, 142 N.J. 1 (1995), and determined that the privacy provision of OPRA, N.J.S.A. 47:1A-1, did not outweigh the requestor’s right to the information.

Judge Ostrer also rejected a limitations argument asserted by the Firemen’s Association.  The Association contended that the lawsuit was too late, coming as it did in a counterclaim that was filed more than 45 days after the Firemen’s Association denied access, the limitations period provided by OPRA and in the court rule relating to prerogative writ actions.  But that time may be extended “in the interest of justice,” and Judge Ostrer ruled that such an extension was required here “because the Association’s declaratory judgment action effectively preempted [the requestor’s] option to resort to the GRC [Government Records Council, an available appellate avenue in OPRA matters], which has no specified limitations period.”  The requestor “was compelled to respond to a lawsuit that, as discussed above, the Association was not entitled to bring in the first place.”

Judge Messano filed an opinion concurring in the judgment.  In his view, the panel opinion went too far in its blanket contention that “if there is no private right of action under a particular statute, a party may not secure a declaration of its statutory rights by seeking relief under the DJA.”  He agreed that, in these circumstances, the Firemen’s Association had no right to bring a DJA case.  But he believed that, in other contexts, the Association might have the right to file a declaratory judgment action.  Whether his view will prevail will have to await a case presenting such other circumstances.

In the course of his opinion, Judge Ostrer reminded everyone that it is improper to attach exhibits to a brief.  An affidavit or certification is the only proper vehicle for exhibits.