Assembly Bill No. 4532 which would, in its current form, weaken the Open Public Records Act (OPRA) by relieving government agencies from paying a successful OPRA plaintiff's attorney fees if "the court or [Government Records Council] finds that the decision to deny access was reasonable and made in good faith after due diligence."
OPRA's mandatory fee-shifting provision is one of the law's most important features. According to a 2005 Appellate Division case, without fee-shifting, "the ordinary citizen would be waging a quixotic battle against a public entity vested with almost inexhaustible resources. By making the custodian of the government record responsible for the payment of counsel fees to a prevailing requestor, the Legislature intended to even the fight."
But, during yesterday's hearing, Committee Chairman Troy Singleton remarked that he was assured by Assemblyman Wayne P. DeAngelo, one of the A-4532's three current sponsors, that the bill's proposed limitation on attorney fee-shifting was intended to apply only to lawsuits where the "personal government records"--a new category of exempted records created by the bill--were at issue. The bill defines this new category as "consist[ing] of or pertain[ing] solely to a pet or home alarm system permit, license, or registration."
Earlier this afternoon, I spoke with Elizabeth A. Meyers, DeAngelo's chief of staff, who confirmed that it was never DeAngelo's intention to so dramatically alter OPRA's fee-shifting structure. Meyers said that DeAngelo has instructed the Office of Legislative Services to amend the bill to make it clear that the bill's limitation on fee-shifting applied onto to court cases where "personal government records" (i.e. pet and home alarm licenses) were being sought. She said that the curative language, which should be available on-line within a few days, would be offered as an amendment when the bill reaches the Assembly floor.