Sunday, August 9, 2015

Supreme Court Committee mulls rule change to permit OPRA plaintiffs to remain anonymous.

Update 03/02/16: Supreme Court Committee rejects my proposal.

In early 2016, the New Jersey Supreme Court's Civil Practice Committee is likely to decide whether it should recommend an amendment to the New Jersey Rules of Court that would expressly allow plaintiffs in Open Public Records Act (OPRA) lawsuits to proceed in court anonymously.  Also at that time, the Committee's Discovery Subcommittee should decide whether the Committee should recommend a rule change that would require attorneys who submit OPRA requests to obtain records pertaining to pending litigation to also serve copies of those requests to the attorneys for all other parties in the litigation.

The first issue--whether the court rules should recognize the right of an anonymous OPRA requestor to sue anonymously--was prompted by my October 2, 2012 request to the Civil Practice Committee to consider such a rule.  In my request, I raised an August 17, 2012 unpublished trial court decision by Atlantic County Superior Court Judge Nelson C. Johnson in Anonymous v. Borough of Longport, Docket No. L-9552-11 (a copy of the decision is attached to my October 2, 2012 request at the link above).  In his decision, Judge Johnson ruled that OPRA requestors cannot proceed anonymously because the Supreme Court had not yet adopted a court rule granting them that privilege.  Judge Johnson stated that "OPRA has been the law for more than a decade . . . if our Supreme Court thought it appropriate to adopt new court rules to address the Act’s provisions; it was free to do so.”

In my request to the Civil Practice Committee, I pointed out that OPRA specifically grants citizens the right to make anonymous OPRA requests and that this right would be illusory if a records custodian by simply denying an anonymous request could force the requestor to either abandon the request or give up his or her statutory right to remain anonymous.  "OPRA’s grant of a right to remain anonymous means nothing if requestors must waive anonymity in order to enforce their OPRA rights," I wrote.

The Committee discussed my request on page 99 of its January 27, 2014 report to the Supreme Court.  The Committee decided to hold my request over for consideration in the next rules cycle.  Since the Committee works on a two-year cycle, its next report will be due in early 2016.  The other issue--whether attorneys who submit OPRA requests on their client's behalf should be required to serve copies on other attorneys in the case--is discussed on page 98 of the report.

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