The Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 et seq., is a powerful tool at the disposal of any attorney. OPRA governs the public’s access to government records in New Jersey and establishes a system through which individuals submit requests to public agencies for government records in the custody of that agency.

An Appellate Division opinion published earlier this year—Scheeler v. Office of the Governor, 153 A.3d 293 (App. Div. 2017)—dramatically broadened access to records under OPRA by including OPRA requests themselves within the statute’s definition of a government record. This recent expansion of access under OPRA provides an opportunity to remind practitioners of the numerous functions and uses of OPRA—including this recent expansion of access. It can also serve to caution that a failure to understand or properly use OPRA in certain situations could be fertile ground for claims of legal malpractice.

Under OPRA, any individual (even out-of-state residents) can request government records from a public agency through the filing of an OPRA request. The statute defines “public agency” as including the following: the executive branch of state government and all independent state agencies and authorities; the legislature of the state and any office, board, bureau or commission within or created by the legislative branch; all counties, municipalities, school districts, fire districts, planning and zoning boards and other county and local boards or agencies; and all independent county or local agencies and authorities established by municipal or county governments.

The statute’s definition of “government record,” the crux of Scheeler, is: “any paper, written or printed book, document, drawing, map, plan, photograph, microfilm, data processed or image processed document, information stored or maintained electronically or by sound-recording or in a similar device, or any copy thereof, that has been made, maintained or kept on file … or that has been received in the course of his or its official business.” While not specifically mentioned in the statute, OPRA requests themselves had historically been turned over when requested. This stopped in 2014, in the wake of the Bridgegate scandal.

In Scheeler, Harry Scheeler and several other plaintiffs sent OPRA requests to various state agencies, including the Governor’s Office, seeking copies of all OPRA requests that had been submitted to those agencies within discrete time periods. The custodians of records from each agency to whom a request has been sent declined to fulfill those OPRA requests on the basis that third-party OPRA requests were not government records under the statute and thus did not have to be produced when requested. The Governor’s Office and other state agencies cited a 2005 decision of the Appellate Division, Gannett N.J. Partners v. County of Middlesex, 877 A.2d 330 (App. Div. 2005), in support of their position. The Appellate Division held that the precedent used by the agencies was non-binding dicta and that third-party requests were government records under OPRA.

The opinion is significant in that it broadens the pool of government records that are accessible through OPRA by confirming that OPRA requests themselves are government records under the statute. This makes an already powerful tool significantly more potent. It should have an impact on how many attorneys practice across a broad spectrum of practice areas.

Access to government records can serve attorneys and their clients in a number of ways. In the litigation context, OPRA can serve as a complimentary or alternative discovery tool for litigants. OPRA requests offer a few benefits as compared against their traditional discovery demand counterparts: for one, a public agency must respond to an OPRA request more quickly than to a subpoena or other document demand; additionally there is no requirement that the demand be reasonably calculated to lead to the discovery of admissible evidence. (N.J. Court Rule 4:10-2A.) While there is an exemption in the statute, which exempts from release records pertaining to an ongoing investigation, that exemption cannot be invoked if the records were public prior to the investigation’s commencement. And now, as a result of the decision in Scheeler, litigants can also request copies of all OPRA requests from which they can learn what other parties are seeking in their own OPRA requests.

For attorneys who practice in highly regulated industries, like health care, energy and banking and insurance, OPRA requests can yield valuable information for clients. The submission of OPRA requests is often a matter of course for attorneys practicing in these industries. OPRA requests can afford a business the opportunity to gain valuable insight into its competitors’ plans, and in some cases can help management see what lies around the next curve. Attorneys who represent clients in these industries should know at a minimum how to extract some value out of OPRA for their clients. What Scheeler now permits is for attorneys to see what other attorneys are requesting on behalf of their clients. In many ways, this raises the bar for attorneys in that access to all other OPRA requests are available.

In the transactional context, OPRA requests are often implemented as an important element of the diligence process. OPRA can and should serve as a vital backstop for attorneys representing buyers and who are seeking to obtain a complete set of information related to state, county or municipal issued permits or licenses. OPRA requests can also be utilized by sellers to obtain relevant information about the buyer.

The impact of not being aware of OPRA and the powers it unleashes—especially since the Scheeler decision—could be devastating. According to a 2010 study published by the American Bar Association, the number-one reason for malpractice lawsuits was “Fail to know/apply law.” Dan Pinnington, “The Most Common Legal Malpractice Claims by Type of Erro,” Law Practice, Vol. 36 No. 4 (July/August 2010). In the transactional context, the failure to submit an OPRA request, the results of which could have yielded essential and publicly available information about a lapse in licensure, for example, could leave an attorney vulnerable to a malpractice claim.

Attorneys should be aware of the expansion of access to records that Scheeler guarantees. The best attorneys will use the access Scheeler provides to serve their clients through submitting the most fruit-bearing OPRA requests based on the language available in previously submitted OPRA requests, anticipating competitors’ moves and keeping their clients apprised of regulatory and rule changes by precisely targeting their OPRA requests. While that is not the standard through which malpractice claims will be judged, a basic understanding of the statute and knowledge of how to wield OPRA requests in various contexts is essential to serving clients competently and ultimately avoiding any liabilities. Specifics regarding the process of filing a sound request under the statute are available in the “A Citizen’s Guide to the Open Public Records Act” published by the New Jersey Government Records Council.•

Next Week…

Civil Procedure