OPRA Lawsuits - Keep It Simple

In this blog, we frequently talk about the special, unique or unusual rules and practices applicable to OPRA cases.  Unlike ordinary litigation, OPRA claims must be initiated via a special procedure and should not be bundled or combined with other claims.

Although the general rule is that a party must assert in a lawsuit all of the claims they have against other parties or risk losing them, OPRA is an exception to that rule.  OPRA cases are “summary actions” and do not follow the same path as regular civil litigation.  Unlike regular civil litigation, no discovery is permitted in OPRA cases without leave of Court, and no jury trial.

There is also a special procedure for staring OPRA lawsuits.  An OPRA lawsuit must, at a minimum, be initiated by the filing of a verified complaint and order to show cause.  By initiating the case in this manner, the order to show cause is forwarded to the assignment judge or the county’s designated OPRA judge, who will normally file the order to show cause, which sets the initial timetable for the entire case, including the “return date.”

The return date is the date when the judge assigned to the case will hear oral argument.  That is the trial date for the case.  Thus, any documents or information that the parties want the Court to consider must be filed before the return date.  Courts sometimes request or permit supplemental filings after the initial hearing, or less commonly, permit discovery, but not often.

Thus, the ideal OPRA case consists of an opening set of papers filed by the plaintiff, an opposition filed by the defendants, a reply filed by the plaintiff, and oral argument with the court.

Importantly, courts have held that OPRA claims should not be joined with other claims that are not summary in nature.  Also, an OPRA claim cannot be presented as a civil rights or other type of claim.  The only remedy for a denial of access is to file a complaint with Superior Court as a summary proceeding, or with the Government Records Council (“GRC”).

The only claim that generally should be included with a court filing is a denial of access under the common law.  Note that the GRC does not have jurisdiction over common law claims.  And, as always, keep in mind that while there is a forty-five day statute of limitations period for going to Court.  There is no limitations period for filing with the GRC.