OPRA: An Important Tool In The Construction Industry's Toolbox - Client Newsletter
From obtaining land use approvals to submitting bids to build public projects, the construction industry interacts with the government perhaps more than any other industry. The Open Public Records Act (OPRA) can be an important tool from the early planning stages of a project to disputes that arise after a project is completed.
OPRA provides broad access to records held by municipalities, counties, and state agencies, as well as independent state authorities and some quasi-public non-profit organizations (such as business improvement districts or the League of Municipalities).There is no residency requirement to file an OPRA request—both citizens and non-citizens can utilize OPRA, as can businesses.
Except where records might involve a privacy interest, OPRA does not contain any requirement that the requestor have an interest in the records, which means you do not have to disclose your reason for seeking them.
While OPRA itself does contain approximately 24 exemptions and many records are exempt according to other statutes or regulations, most land use records or records one would seek relating to construction or redevelopment are not exempt.
How You Can Use OPRA
OPRA can be a helpful tool to those in the industry from start to finish of a project. In the earliest stages of a project, OPRA can supplement a title search with additional information about a property.vConstruction permits, zoning permits, land use approvals, or other permits and approvals that have been issued for a property can be obtained, as well as any denials of those permits. Such records are often beyond the scope of a mere title search.
You can obtain notices of violations and summonses that have been issued for any property by the Building Department/Construction Official, the Health Department, or the Zoning Department, as well as environmental records such as environmental impact statements. These records might lead you to discover ongoing issues that may need to be remedied before undertaking development on a property.
Unfortunately, disputes often arise when government is involved. Developers have been on the road to a successful zoning approval only to have a local election change the make-up of the local governing body and suddenly zoning relief is denied. Other times, redevelopment work may be shifted to another developer, leaving you in the dark as to why.
In such circumstances, OPRA can be a helpful pre-litigation tool. A request for e-mails sent or received by the agency’s decision-makers may reveal conversations about your application or development project that evidence bias, political influence, or even corruption. By digging through an agency’s public records, you may discover information that provides the basis for a lawsuit. Importantly, OPRA requests can also be filed anonymously so that the public agency is not “tipped off” that a requestor might be seeking records for use in potential or current litigation. This can easily be accomplished by hiring an attorney to file the request on your behalf or by creating an anonymous email account on a platform such as Gmail.
After a lawsuit is filed, OPRA can be a discovery tool. In MAG Entertainment, LLC v. Div. of Alcoholic Beverage Control, 375 N.J. Super. 534 (App. Div. 2005), the Appellate Division held that the fact that a party is adverse to a public agency in no way limits the right of that party to utilize OPRA to gain access to the agency’s records. There are real benefits to using OPRA in lieu of discovery—responses are due within 7 business days and you do not need to state any reason for seeking the records, unlike civil discovery where only relevant documents may be sought.
How to Draft a Valid Request
When using OPRA, it is important to hire an attorney who is well-versed in crafting OPRA requests because a valid OPRA request is written much differently than a typical discovery request. In N.J. Builders Ass’n v. N.J. Council on Affordable Hous., 390 N.J. Super. 166 (App. Div. 2007), the Appellate Division rejected the requestor’s “fivepage, thirty-nine paragraph request” and found that it “bears no resemblance to the record request envisioned by the Legislature” when it enacted OPRA.
A valid OPRA request must seek specific, identifiable records, rather than requesting “the entire file” or “any and all records” relating to a property. This is often a difficult task, given that you do not always know which records are in an agency’s file. Requests for information or requests that require the custodian to conduct research will be considered invalid.
Targeted OPRA requests are required and it often takes skill and practice to master that art.