New Jersey enacted the Open Public Records Act (“OPRA”) in 2002. The legislation was intended to increase and improve public access to records maintained by governmental and other public bodies. Since OPRA’s enactment, courts have begun to define the parameters of the Act, and the implications of the Act for civil litigation matters have begun to take shape as well. Not surprisingly, OPRA presents some interesting questions for the civil  litigator. Aggressive litigators have taken advantage of OPRA’s easier access to public records for purposes of information gathering on files. Since the threshold for obtaining access to records is lower through an OPRA request than it is through traditional discovery methods in litigation, many attorneys find OPRA to be the preferred method when available. Typically, New Jersey Court Rules permit a party to obtain discovery regarding unprivileged matters that are relevant to the subject matter of the case. Under an OPRA request, relevance need not be demonstrated. Rather, the requesting party need only show that the records sought are public, they have a subject-matter interest in them, and the right to access outweighs the state’s interest in preventing disclosure. While OPRA presents some useful advantages, it also holds the potential for abuse. Before OPRA, a party to civil litigation seeking public records was required to serve a formal Subpoena, upon notice to the adverse party. There is no such requirement under OPRA that an adversary in litigation be notified about the request. As a result, a party can obtain public records and withhold them from the opposition until the very end of discovery before producing them. While this practice undoubtedly violates the spirit of the discovery rules, it may not necessarily constitute a technical violation. To avoid the potential for abuse, it seems that an amendment to OPRA (when used in the context of litigation) is in order. Barring an amendment to the statute, however, attorneys would be wise to tailor their discovery demands to require adversaries to produce any documents obtained in response to OPRA requests.

– Christopher H. Westrick, Esq.