As citizen oversight of government grows, public agencies are resisting the oversight. One of the ways public agencies resist oversight is by threatening to sue members of the public who exercise their rights. These types of lawsuits are called “SLAPP” lawsuits – Strategic Lawsuits Against Public Participation.

SLAPP lawsuits frequently come up when corporations or others want to quell public dissent on an issue. For example, citizens may oppose land-use or zoning measures, often using the public process to do so. In response, the proponents of such measures sue their political opponents, claiming libel, slander, tortious interference with contract, and similar torts. While sometimes meritorious, at other times such lawsuits are intended to intimidate or prevent members of the public from participating meaningfully in the public process. Citizens can be intimidated because they do not want to be burdened with the costs and stress of defending a lawsuit.

Several States have enacted into law so-called anti-SLAPP statutes. In general, these statutes allow defendants in SLAPP lawsuits to file a special motion that requires the Court to make a quick decision regarding whether the defendants were being sued because they exercised their First Amendment rights. New Jersey has no anti-SLAPP statute.

In our experience, citizens who use the Open Public Records Act (“OPRA”) to request documents or who vigorously enforce their rights by bringing lawsuits or administrative actions in the Government Records Council (“GRC”) are threatened with litigation by public entities or their lawyers. In one recent examples, one borough attorney from a reputable law firm responded to a citizen’s letter by claiming any lawsuit would be frivolous and that the borough would counter-claim for its attorneys fees. In another recent example, a municipal official threatened to sue a person who litigated against the municipality for “being an obstructionist to department procedures.””

What options are available to citizens who are threatened with civil legal action because they have exercised their rights? Unfortunately, the options are limited and, at this time, they appear to be untested. If a person has threatened or intimidated you from enforcing your rights, you may be able to sue them based on the New Jersey Civil Rights Act or the common law tort of “prima facie tort.” Also, if a lawsuit brought against you was dismissed, you may be able to sue the person who sued you for malicious use of process.

Under the New Jersey Civil Rights Act, persons acting under the color of state law (e.g., public employees) cannot interfere with or attempt to interfere with another person’s exercise of their rights through threats, intimidation, or coercion. N.J.S.A. 10:6-2(c). This is very broad language that may be applicable to a municipality’s threats to sue you based on your exercise of your rights.

In addition, New Jersey courts recognize the tort of “prima facie tort.” Prima facie tort is conduct that amounts to unjustified willful, malicious or intentional harm, which is not addressed by any other law or cause of action. If a municipal agency’s threats or intimidation were strong enough, it very well may qualify as a “prima facie tort.”

A public agency’s threat of litigation is serious; it is also often a sign of frustration and weakness. If a public agency threatens to sue you because you are exercising your rights, candidly assess what you are doing. If you have proceeded in good faith, treated the public agency respectfully, and have legal justifications for your actions, call their bluff by continuing to exercise your rights.

I would like to thank John Paff for helping me research and think through several of the points in this article.

The author is an attorney licensed to practice law in New Jersey. If you think that your town has violated OPRA or other laws, you may contact the author at 908-453-2147 or This e-mail address is being protected from spam bots, you need JavaScript enabled to view it Whether OPRA or any other law has been violated depends on the circumstances of each individual case. This article does not reflect changes in the law that may have occurred after publication.