On February 1, 2023, the Appellate Division decided Association for Governmental Responsibility v. State of New Jersey, (“AGREAT”), which is an unpublished case. An unpublished decision is binding only on the parties, and ordinarily cannot be cited by other New Jersey courts. But the opinion shows the challenges that might be faced when plaintiffs seek records through discovery in civil litigation and through OPRA.
In AGREAT, one of the plaintiffs had also sued the State of New Jersey (and other defendants) for wrongful termination. During discovery in that case, the plaintiff sought copies of sign-in sheets and emails. Although the plaintiff received the records, they were produced subject to a protective order that redacted the names of all state employees who were not defendants.
About seven months later, plaintiff, Association for Governmental Responsibility (“plaintiff” or “Association”), filed a OPRA request for the same records, which was denied. After it was denied, the plaintiff filed a denial of access complaint in Superior Court. The Association was the only plaintiff in the OPRA case when it was filed, but they later added the plaintiff in the wrongful termination case, as well. After hearing the matter, the trial court held that all of the requested records were exempt under OPRA as personnel records, attorney/client privileged communications, or constituted deliberative material. On appeal, the Appellate Division affirmed. Based on the opinion, it appears that the plaintiffs were actually more successful in gaining access to records in the wrongful termination case through civil discovery than in the OPRA case, or at least were not less successful.
While OPRA remains an excellent tool to attempt to gather documents and information as part of a pre-suit investigation, access to records is generally broader under the rules applicable to civil discovery, rather than OPRA. For example, OPRA exceptions such as the “personnel records” exception generally do not apply to civil discovery. While every case is unique, in those instances where civil discovery is already underway, it is generally more beneficial to seek access to records through civil discovery than through OPRA.