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The Open Public Records Act (OPRA) now has some competition: the Declaratory Judgment Act (DJA).

In In re New Jersey Firemen’s Association, the merits issue of access to government records seemed simple enough. The requestor sought disclosure of redacted “financial relief checks” issued by the New Jersey Fireman’s Association (Association) to one of its members, who remained anonymous as “John Doe.” The requestor’s motive was to “publicize the fact that Doe had been charged with endangering the welfare of a child and consequently resigned from his position” with an award of “hardship benefits” that he did not deserve. The legal basis for disclosure was asserted under OPRA and the common law test, balancing the public and private interests in disclosure.

The Association denied access, citing Doe’s “reasonable expectation of privacy.” But the Association raised the stakes when it also filed a post-denial action under the DJA “to obtain a judicial determination of its responsibilities under OPRA when it is asked to disclose the personal financial information of its members.”

The trial court sided with the Association in denying access, which the Appellate Division reversed. The appellate panel further ruled that “the Association’s DJA complaint was improper because OPRA exclusively vests the requestor, not the custodian, with the right to institute a proceeding.” The New Jersey Supreme Court reversed, finding that “the relief checks are exempt from disclosure under OPRA and the common law right of access.” Much analysis was afforded the merits question of whether the records in question were disclosable. But the opinion is far more significant not for the dispute it settled, but for the lingering dispute it has now raised.

In a parallel ruling—which is arguably dictum—the court “conclude[d] that OPRA does not, in all instances, prohibit a public entity from instituting proceedings under the DJA to determine whether records are subject to disclosure.” The court attempted to harmonize the two statutes by positing that, before denial, “the Association and [the requestor] had ‘genuine differences’ as to the Association’s duty to disclose under OPRA” but post-denial the controversy was “extinguished” because “the Association had determined its legal obligations with regard to the relief checks.” At that point there was no “live dispute” worthy of declaratory relief, rendering any judicial ruling “an impermissible advisory opinion.” Thus, only the requestor could institute legal action, and the DJA was moot. The court expressly did not reach “the question of whether a public entity may file a pre-denial declaratory judgment action when confronted with an unsettled question that has not been litigated before and that implicates OPRA’s privacy prong.”

In a concurring opinion that “joins the Court’s opinion in full,” Justice Albin digressed. He concluded that a custodian should be precluded “from resorting to a declaratory judgment action after a citizen makes a records request, regardless of whether the custodian voices a denial.” Albin noted OPRA’s conferring on the requestor the sole right to initiate litigation and to select the forum, without any allowance for the custodian to haul an unwitting and unwilling requestor into court. OPRA was intended to enhance government transparency, not facilitate a chess-match where, “through strategic timing,” the custodian deprives a requestor of his statutory rights of instituting litigation in the forum of his choice. “Every reason for denying a public agency the authority to file a declaratory action after the denial of a records request holds true after a request is made but before a custodian’s denial,” Albin wrote. “To conclude otherwise would have a powerful chilling effect on whether a citizen would even request a government record, thus defeating the entire purpose of OPRA.”

We think that Justice Albin has the winning argument that is more true to the intent of the legislation. Under settled principles of statutory construction pertaining to temporality and specificity, there can be no question that OPRA controls questions about government records, and supersedes the DJA on that subject. For example, OPRA is the more recent declaration of the Legislature’s intent, by 77 years. OPRA’s terms are exclusively tailored to government records disputes; the DJA addresses generic rights. The provisions of OPRA’s “comprehensive framework” to promote the disclosure of government records—such as vesting requestors only with discretionary authority to file suit and select the forum, and mandating that prevailing requestors be awarded attorneys’ fees and costs—are absent from the DJA, which does not even remotely suggest the kind of “comprehensive framework” that exists under OPRA. If an OPRA request triggers a custodian’s pre-denial resort to court, OPRA’s objective of mutual accommodation and resolution without judicial process would be supplanted by custodians alleging indecision, initiating suit naming the requestor as defendant, and punting the decision to the court. That process, encouraging litigation, is contrary to OPRA.

The majority is silent on these issues. Instead, questions abound concerning whether a pre-denial DJA action may be founded on any unsettled questions arising under OPRA, which previously were adjudicated under OPRA in the context of the request for access, or whether that right is limited to questions “that implicate OPRA’s privacy prong.” This could spawn parallel or duplicate litigation. Correspondingly, this leaves in limbo certain other appellate and trial court rulings that OPRA superseded the DJA. Further, though the majority acknowledges the fee-shifting provision of OPRA to guard against the “financial risks involved” to a prevailing requestor, it is not clear whether that same requestor, prevailing in a DJA action, would be entitled to a fee-award after being compelled to appear as an unwilling defendant exposed to those same “financial risks.” If so, this ruling will only encourage custodians to seek pre-denial refuge under the DJA in order to avoid a fee-award in a claim where they believe they have a risk of loss and/or where they intend simply to discourage such requests.

Aside from the merits decision, the majority’s DJA ruling raises more questions than it resolves, will complicate OPRA proceedings in the future, and ultimately detracts from the intent and operation of OPRA. New Jersey’s long-standing tradition of access to government records has taken a step back.

Editorial Board members Barry Evenchick, Joseph Hayden, Lawrence Lustberg, Michael Stein, Edwin Stern and Justin Walder recused from this editorial.

The Open Public Records Act (OPRA) now has some competition: the Declaratory Judgment Act (DJA).

In In re New Jersey Firemen’s Association, the merits issue of access to government records seemed simple enough. The requestor sought disclosure of redacted “financial relief checks” issued by the New Jersey Fireman’s Association (Association) to one of its members, who remained anonymous as “John Doe.” The requestor’s motive was to “publicize the fact that Doe had been charged with endangering the welfare of a child and consequently resigned from his position” with an award of “hardship benefits” that he did not deserve. The legal basis for disclosure was asserted under OPRA and the common law test, balancing the public and private interests in disclosure.

The Association denied access, citing Doe’s “reasonable expectation of privacy.” But the Association raised the stakes when it also filed a post-denial action under the DJA “to obtain a judicial determination of its responsibilities under OPRA when it is asked to disclose the personal financial information of its members.”

The trial court sided with the Association in denying access, which the Appellate Division reversed. The appellate panel further ruled that “the Association’s DJA complaint was improper because OPRA exclusively vests the requestor, not the custodian, with the right to institute a proceeding.” The New Jersey Supreme Court reversed, finding that “the relief checks are exempt from disclosure under OPRA and the common law right of access.” Much analysis was afforded the merits question of whether the records in question were disclosable. But the opinion is far more significant not for the dispute it settled, but for the lingering dispute it has now raised.

In a parallel ruling—which is arguably dictum—the court “conclude[d] that OPRA does not, in all instances, prohibit a public entity from instituting proceedings under the DJA to determine whether records are subject to disclosure.” The court attempted to harmonize the two statutes by positing that, before denial, “the Association and [the requestor] had ‘genuine differences’ as to the Association’s duty to disclose under OPRA” but post-denial the controversy was “extinguished” because “the Association had determined its legal obligations with regard to the relief checks.” At that point there was no “live dispute” worthy of declaratory relief, rendering any judicial ruling “an impermissible advisory opinion.” Thus, only the requestor could institute legal action, and the DJA was moot. The court expressly did not reach “the question of whether a public entity may file a pre-denial declaratory judgment action when confronted with an unsettled question that has not been litigated before and that implicates OPRA’s privacy prong.”

In a concurring opinion that “joins the Court’s opinion in full,” Justice Albin digressed. He concluded that a custodian should be precluded “from resorting to a declaratory judgment action after a citizen makes a records request, regardless of whether the custodian voices a denial.” Albin noted OPRA’s conferring on the requestor the sole right to initiate litigation and to select the forum, without any allowance for the custodian to haul an unwitting and unwilling requestor into court. OPRA was intended to enhance government transparency, not facilitate a chess-match where, “through strategic timing,” the custodian deprives a requestor of his statutory rights of instituting litigation in the forum of his choice. “Every reason for denying a public agency the authority to file a declaratory action after the denial of a records request holds true after a request is made but before a custodian’s denial,” Albin wrote. “To conclude otherwise would have a powerful chilling effect on whether a citizen would even request a government record, thus defeating the entire purpose of OPRA.”

We think that Justice Albin has the winning argument that is more true to the intent of the legislation. Under settled principles of statutory construction pertaining to temporality and specificity, there can be no question that OPRA controls questions about government records, and supersedes the DJA on that subject. For example, OPRA is the more recent declaration of the Legislature’s intent, by 77 years. OPRA’s terms are exclusively tailored to government records disputes; the DJA addresses generic rights. The provisions of OPRA’s “comprehensive framework” to promote the disclosure of government records—such as vesting requestors only with discretionary authority to file suit and select the forum, and mandating that prevailing requestors be awarded attorneys’ fees and costs—are absent from the DJA, which does not even remotely suggest the kind of “comprehensive framework” that exists under OPRA. If an OPRA request triggers a custodian’s pre-denial resort to court, OPRA’s objective of mutual accommodation and resolution without judicial process would be supplanted by custodians alleging indecision, initiating suit naming the requestor as defendant, and punting the decision to the court. That process, encouraging litigation, is contrary to OPRA.

The majority is silent on these issues. Instead, questions abound concerning whether a pre-denial DJA action may be founded on any unsettled questions arising under OPRA, which previously were adjudicated under OPRA in the context of the request for access, or whether that right is limited to questions “that implicate OPRA’s privacy prong.” This could spawn parallel or duplicate litigation. Correspondingly, this leaves in limbo certain other appellate and trial court rulings that OPRA superseded the DJA. Further, though the majority acknowledges the fee-shifting provision of OPRA to guard against the “financial risks involved” to a prevailing requestor, it is not clear whether that same requestor, prevailing in a DJA action, would be entitled to a fee-award after being compelled to appear as an unwilling defendant exposed to those same “financial risks.” If so, this ruling will only encourage custodians to seek pre-denial refuge under the DJA in order to avoid a fee-award in a claim where they believe they have a risk of loss and/or where they intend simply to discourage such requests.

Aside from the merits decision, the majority’s DJA ruling raises more questions than it resolves, will complicate OPRA proceedings in the future, and ultimately detracts from the intent and operation of OPRA. New Jersey’s long-standing tradition of access to government records has taken a step back.

Editorial Board members Barry Evenchick, Joseph Hayden, Lawrence Lustberg, Michael Stein, Edwin Stern and Justin Walder recused from this editorial.