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
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