OPRA Requestor’s Declaratory Judgement Action Deemed Moot

by Jessica F. Gonzalez on July 7, 2017

In Stop & Shop Supermarket Company, LLC v. County of Bergen, the Appellate Division affirmed the dismissal of a declaratory judgment action arising from a records dispute under the state’s Open Public Records Act (OPRA). Because the OPRA requestor had received the documents at issue prior to filing the suit, the appeals court held that the lawsuit was moot.

OPRA Requestor’s Declaratory Judgement Action Deemed Moot

OPRA Litigation

The OPRA dispute arose in conjunction with Plaintiff the Stop & Shop Supermarket Company, LLC’s (Stop & Shop) opposition to a site plan application of Inserra Supermarkets, Inc. (Inserra) for the construction of a ShopRite supermarket in Bergen County. On July 7, 2011, Stop & Shop submitted two OPRA request forms requesting various documents relating to Inserra’s site plan application. Stop & Shop received responsive documents on August 8, 2011.

Nearly three years later, Stop & Shop submitted another OPRA request form requesting documents provided by Inserra relating to its site plan application. The additional responsive documents provided to Stop & Shop included several documents regarding the installation of a traffic signal that dated back to 2011.

Stop & Shop advised the Board of Freeholders that the documents should have been produced in response to its 2011 OPRA request. Stop & Shop requested, and the Board agreed, to consider these documents. Two days before the Board approved Inserra’s site plan application, Stop & Shop filed a complaint seeking a declaratory judgment “that [OPRA] Defendants violated Stop & Shop’s rights under the Open Public Records Act” and the common law right of access. Stop & Shop also requested counsel fees.

The Defendants filed a motion to dismiss, which the trial court granted. It held that Stop & Shop’s action was moot because it received the documents prior to initiating its OPRA lawsuit.

Appellate Division’s Decision

The Appellate Division agreed. “We hold that OPRA litigation is authorized to allow a party who is denied access to records to obtain access to those records, and counsel fees are authorized under OPRA if the litigation causes the production of those records,” the panel wrote. “Because Stop & Shop had already obtained the records before it filed its declaratory judgment action, that action was moot and it is not entitled to counsel fees.”

The appeals court rejected Stop & Shop’s argument that the OPRA litigation was not moot because it seeks counsel fees. As the court explained:

”Here, the OPRA defendants voluntarily produced the records before Stop & Shop filed suit. Such voluntary disclosure would be discouraged if Stop & Shop is allowed to file suit to obtain counsel fees for records it has already received. In any event, Stop & Shop did not obtain a judgment or enforceable consent decree granting it access to the records, and its filing of its lawsuit did not cause the production of the already-produced records.”

The Appellate Division also highlighted that Stop & Shop failed to seek the imposition of a penalty for withholding the 2011 documents. The court’s opinion stated:

Notably, Stop & Shop did not allege the OPRA defendants “knowingly and willfully violate[d]” OPRA and “unreasonably denied access under the totality of the circumstances.” N.J.S.A. 47:1A-11(a). Nor did Stop & Shop sue for imposition of the civil penalties which OPRA authorizes for such non-disclosure. Ibid. Thus, Stop & Shop did not claim entitlement to the remedy OPRA provides for such non-disclosure.

Lastly, the Appellate Division held that Stop & Shop could not “avoid the proscription against litigating moot issues by bringing its action under the Declaratory Judgment Act.”

For more information about the court’s decision in Stop & Shop Supermarket Company, LLC  v. Bergen County or the legal issues involved, we encourage you to contact a member of Scarinci Hollenbeck’s Government Law Group.

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