So You Were Denied Access – What’s Next?
Per OPRA, public agencies must respond to a request for records within seven business days. But what do you do if the government fails to respond (a deemed denial) or unlawfully refuses to grant access to the records?
The best course of action is to immediately speak to an attorney, who can work with you to gain access to the records. This frequently requires a lawsuit filed in Superior Court. The most important thing to remember is that your action must be filed within the statute of limitations, which is 45 days. The process for filing in Superior Court is as follows:
- A Verified Complaint and Order to Show Cause is filed
- The judge will review and sign the Order to Show Cause. It sets a briefing schedule and a hearing date.
- The pleadings are then served upon the defendants (public agency and the custodian of records )
- The defendants will submit their answer and opposition
- Plaintiff has an opportunity to file a reply brief
- A hearing is held, wherein the judge will hear arguments from both sides. For simple cases, the judge will usually enter a ruling that day. More complex cases may require a little more time for an opinion to issue. In rare circumstances, the court may allow for discovery (interrogatories, depositions) to occur.
- If the plaintiff is declared a prevailing party, it can file a fee application asking the Court to order the defendants to pay plaintiff’s counsel fees and costs of suit.
Again, the most important thing to remember is that there is a very short timeline for filing the initial Verified Complaint – 45 days from the date your request was denied (or, if the agency fails to respond, the date the response was due).
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