Appellate Division reverses decision in OPRA case due to procedural deficiencies

Appellate Division reverses decision in OPRA case due to procedural deficiencies
Photo by Tingey Injury Law Firm / Unsplash

In a recent decision posted on April 20th, 2023, the New Jersey Superior Court, Appellate Division, reviewed an order denying defendants Jeanne Hitchner, the City of Millville, and the City of Millville Police Department's motion to dismiss an unverified complaint filed by plaintiffs African American Data and Research Institute, LLC (AADARI), and Obafemi Simmons. The order also required defendants to provide plaintiffs with certain internal affairs records under the Open Public Records Act (OPRA) and common law right of access requests.

The plaintiffs had filed an Order to Show Cause (OTSC) and unverified complaint under Rule 4:67 against defendants, alleging that the denial of the document requests violated OPRA and common law. The complaint was signed by plaintiffs' counsel and contained a Rule 4:5-1 certification also signed by counsel. However, neither Simmons nor an officer of AADARI submitted a verification or affidavit based on personal knowledge in support of plaintiffs' application.

The trial judge denied defendants' application, stating that defendants waived the jurisdictional defense and that the matter was a simple one. The judge then addressed the merits of plaintiffs' application and granted disclosure of some records under the common law right of access.

On appeal, the court disagreed with the trial judge's decision, stating that plaintiffs did not comply with the court rules and order. Specifically, a verified complaint was not filed and served on defendants, rendering the unverified OPRA complaint a "nullity." This meant that the trial court's subject matter jurisdiction was not properly invoked.

Moreover, neither Simmons nor an officer of AADARI submitted an affidavit with personal knowledge of genuine facts to support plaintiffs' application. The trial judge relied only on counsels' representations, which is insufficient to provide support for factual allegations.

Due to these procedural deficiencies, the appellate court reversed and vacated the February 5, 2021 order. This decision highlights the importance of complying with procedural rules in OPRA cases to ensure that the court has the proper jurisdiction to address the merits of the case.