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Time to file a lawsuit challenging a denial of access under OPRA or the common law is one of the shortest statutes of limitations in New Jersey, which is 45 days after the date of the denial of access.
In Dalnoky v. Pinelands Regional School District, which is an unpublished opinion, the Court addressed when the statute of limitations begins to run when a requestor files multiple OPRA requests for the same or nearly identical information. In this case, according to the opinion, the plaintiff was a substitute teacher. According to the opinion, “[d]uring his tenure, students recorded plaintiff sleeping in the classroom and raising his voice at students.” After the District reviewed the video, plaintiff was terminated by the District.
On September 17, 2020, Plaintiff filed an OPRA request with the District in which he requested the electronic recordings of himself. On October 23, 2020, the District denied the request, stating that the recordings were student records, but invited him to view the recordings in person. After this denial, Plaintiff filed six additional OPRA requests that sought copies of the same videos, although each individual request was slightly different.
Over a year after the first denial, Plaintiff filed a suit that, among other things, alleged an OPRA denial of access count. After sorting out other procedural issues, after a hearing the Trial Court dismissed Plaintiff’s denial of access complaint because the Plaintiff had not filed his complaint within 45 days after the denial of access occurred. Plaintiff appealed.
On appeal, the Appellate Division affirmed. The reviewing court held that Plaintiff’s six subsequent OPRA requests were for essentially the same thing (the recordings of himself made by the students) and that Plaintiff “cannot pick and choose denial dates in order to make his complaint timely.”
What happened here to this pro se Plaintiff is a cautionary tale for all OPRA requestors: seek advice and counsel immediately after receiving a denial of access. This case also raises some interesting hypothetical scenarios or alternatives. The Plaintiff was told he could view the videos in person, but not receive copies. The opinion was silent regarding whether the Plaintiff availed himself of this opportunity. In our view, anything that can be viewed can also be copied, but this issue was not discussed by the Court, probably in light of their ruling on the statute of limitations issue. Another hypothetical is: what if the Plaintiff hired an attorney in connection with his termination, and the attorney filed an OPRA request for the same information, which the attorney needed in connection with their representation of the Plaintiff? Would the statute of limitations also apply to Plaintiff’s agents? Finally, the opinion does not mention the common law right of access at all. Could Plaintiff make a new request, today, for the same records solely under the common law right of access? All of these questions will have to wait, for the time being.