Addressing Bad-Faith OPRA Requests: A Primer for Records Custodians

For increasingly underfunded local municipalities and their often-times harried records custodians, addressing all of the requirements of the Open Public Records Act (“OPRA”) may feel like “death by a thousand cuts” even in the best of times.  But one question I have heard often as an attorney for government entities is just what options are available when open public records laws are clearly being misused to harass records custodians or government entities?  And I don’t mean basic serial-filers that ultimately have their heart in the wrong place, but those that are operating in bad faith and barely attempting to even hide it.  It seems that almost every government entity has at least one of these problem child OPRA requestors at any given time, often times more than one. So what can be done, legally, to help in such a situation–one that is clearly wasting taxpayer money in the aggregate to assist a one-sided and bad faith vendetta?

The short answer has long been ‘there’s not much that can be done,’ and that answer has more often than not been supported by the legislature and the judiciary.  Township of Teaneck, et. al. v. Elie C. Jones, BER-C-14-17 (Unpub. trial court 2017) is a case representative of such mores, but one that also provides hints to legal options that may be available when confronting these difficult situations.

Teaneck v. Jones 

In the Jones matter Teaneck Township sought a preliminary injunction against an alleged serial OPRA requestor restraining the citizen from filing additional requests pending further order of the Court. Teaneck Township also sought relief from being required to respond to the OPRA requests already filed by the citizen that remained pending. Defendant OPRA requestor had filed approximately three-hundred and eighty (380!) OPRA requests between November 16, 2016 and January 17, 2017.

The trial court denied Teaneck’s requests in their entirety, which included the imposition of special handling fees to be paid by the Defendant for the increased personnel costs of responding to such voluminous requests. In its decision the Court admitted that “It is easy to understand the Township’s frustration” and noted that the OPRA requests commenced a few days after the Township “rejected defendant’s $10,000 settlement demand in an action brought by defendant against a Teaneck Law enforcement officer.” The decision further referred to the subsequent actions of Defendant as filing “an avalanche of OPRA filings,” and noted that: “virtually all of these OPRA requests are multi-part. The accumulated volume of the requests is the size and heft of a phone book.”

Nevertheless, the Court held that “the legislature intended that only requestors may seek review of OPRA decisions.” The holding further advised the Township that a valid countermeasure when faced with abusive OPRA demands may be to merely deny all such requests and rely upon disruption of agency operations defenses. But this was somewhat naive to the reality of the situation–where a custodian’s making such a determination leaves that municipality open to collateral attacks for sanctions and reimbursement of counsel fees.

The trial court decision noted that such measures can only be taken defensively under OPRA.  In other words, in New Jersey OPRA cases records custodians and their municipalities will continue to occupy the “defendant” rather than “plaintiff” position in lawsuits. Regarding allegations of bullying of government staff the Court stated:

A person who engages in harassing conduct against another may be made to answer for that conduct under the civil law and under the criminal code…such harassment can be remedied under the civil law via a damage award, or by injunctive relief, or through prosecution, or through a combination of these avenues of relief.

Regarding abuse of process claims the Court noted that OPRA requests can never trigger an abuse of process but noted that perhaps the filing of bad faith suits would trigger abuse of process claims. To those that regularly confront abusive OPRA requests/requestors or that may confront such issues, the Jones case perhaps does not provide much in the way of positive affirmation. However, perhaps there are other methods to consider which are not addressed specifically in this opinion.

The main takeaway from Jones is that courts will essentially never allow records custodians or government entities to file seeking preliminary OPRA injunctions. Although Jones is a non-binding trial court opinion, it seems more likely than not that appellate courts and trial courts in most other jurisdictions would follow this logic given the absence of such affirmative relief in the OPRA statute. But if a lawsuit is filed by an OPRA requestor, then all of the other appropriate court rules and sanctions still apply.

Frivolous Litigation and other Bold and Novel Measures to Consider 

Frivolous Litigation R. 1:4-8 addresses frivolous litigation in our court system and states that court papers may not be “presented for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.” R. 1:4-8 states that sanctions may be made against individuals or their attorneys that file frivolous pleadings or undertake frivolous litigation. Although sanctions and legal fees are a one-way street under the OPRA statute, R. 1:4-8 still applies to any court proceeding. Thus when an improper or harassing OPRA lawsuit is filed a discussion with counsel may be appropriate to determine if a R. 1:4-8 letter is warranted–although it should be noted that regardless of the underlying court matter such sanctions are rarely sought and only granted in the most egregious of situations.

Courts have also been known to bar those engaging in harassing litigation. Although this again fails to provide relief at the OPRA request stage, this may present a path forward once suit is initiated. There appears to currently be judicial silence regarding the imposition of frivolous litigation sanctions in the context of OPRA, but this does not represent an inability or unwillingness to impose such sanctions but rather a dearth of such requests being pursued.

Indeed, many government entities would be rightfully cautious to raise such issues even if warranted so as to avoid potential bad press, additional legal costs, and a climate that has recently given rise to sanctions akin to Anti-Slapp suits. Nevertheless, frivolous litigation and barring harassing suits may prove to be an additional tool for confronting bad-faith OPRA requestors given courts apparent unwillingness or inability to bar the filing of future OPRA requests.

It is probably common sense, but I also want to make brief comment regarding those hopefully exceedingly rare times when an OPRA requestor or citizen is not merely a nuisance but is acting in an alarming or harassing manner. The Jones decision reminds us that there are options available for such exigent circumstances. Similar to any other dangerous or potentially dangerous situation, if a requestor steps over the line towards a records custodian, elected official, or other staff/vendors, then a municipality or its employees may pursue appropriate criminal or civil claims to ensure safety. OPRA requestors or citizens of any type will rarely be barred from a public building given Constitutional rights, but public safety may require otherwise.

Conclusion and Final Thoughts 

Additional hope for records custodians and government entities also comes by way of recently passed Assembly Bill A-4532. Voted 73-0 by the Assembly on March 23, 2017, this bill not only expands privacy rights of individuals but also seeks to limit attorneys’ fees when “the court or agency head finds that the decision to deny access was reasonable and made in good faith after due diligence” regardless of the outcome of the lawsuit or GRC complaint.

If enacted this countermeasure may (finally!) accurately reflect the difficult realities of interpreting such a fact-sensitive law (often on the fly). Although the Jones case demonstrates the limited tools available to confront abusive OPRA practice, recent legislation and appellate decisions appear to increasingly be utilizing common sense measures and creating more bright-line rules to address the increasing volume of OPRA and OPRA litigation. Considering the (admittedly limited) tools available to records custodians (as noted herein) and the fact-sensitive nature of confronting abusive OPRA practices, discussions with elected/appointed officials and/or legal counsel will help provide the framework of a plan for addressing those unfortunate real-life situations when OPRA abuse or harassment arises.