As discussed here, last week the Appellate Division rejected a challenge to the legality of the new Attorney General Directive requiring public disclosure of the names of officers who have committed serious disciplinary infractions. The challengers quickly sought Supreme Court review, and the Attorney General notified the Supreme Court that the State will not publish the names of disciplined officers until the Supreme Court resolves the case.

Last week, in addition to releasing a major, precedential OPRA opinion, the Appellate Division issued an interesting unpublished opinion that also may have a significant impact on OPRA matters. In Smith v. Moorestown Twp., the Appellate Division addressed a novel issue under OPRA–when a requestor receives the requested record within 7 business days, may he appeal to the GRC on the basis that the custodian did not respond to the request “as soon as possible?”

In this case, Smith filed a GRC complaint 5 business days after submitting his request, and the custodian granted his request on the 6th business day. The GRC dismissed his complaint as “unripe,” because it was filed during the statutory 7-business-day period. But Smith pointed out that OPRA requires custodians to grant or deny access to a government record “as soon as possible, but not later than seven business days after receiving the request.” (Italics added). He argued that this language gave him the right to challenge whether the custodian here failed to respond as soon as possible to his request.

The Appellate Division rejected this argument because OPRA only permits appeals to the GRC by a person who is “denied access” to a record. Smith was not denied access to the record he requested. And, the court said, the statute does not define the custodian’s failure to respond “as soon as possible” as a denial of access; instead, only the failure to respond within 7 business days is deemed a denial under the statute.

The Smith case is the first time I’ve seen the statute’s “as soon as possible” language directly addressed by a court. The court’s conclusion that this phrase does not override the statute’s language concerning the right to challenge the custodian’s denial of access is important. Requestors often complain that their requests were not answered quickly enough. The Appellate Division’s opinion makes clear that this type of claim cannot be the basis of an appeal to the GRC, or a court complaint, if the custodian grants the request by the specific deadline set by the statute.

It’s worth noting that the argument raised in Smith is likely to come up more often in the near future, due to the recent amendment to OPRA suspending the 7-business day response deadline during public health emergencies. The amendment says that although this deadline does not apply, custodians must make an effort to answer requests “as soon as possible.”

The GRC has issued a “special statement” (under “OPRA Alerts” on its website) on how to apply the recent amendment to OPRA’, which abolishes the 7-business day response deadline during a period that has been declared a state of emergency, public health emergency, or state or local disaster emergency.

This guidance focuses on the amendment’s statement that although there is no deadline during such a period, the custodian has to “make a reasonable effort, as the circumstances permit, to respond …within seven business days or as soon as possible thereafter.” The GRC construes this requirement as equivalent to the longstanding ability of a custodian to extend the time to respond to an OPRA request where reasonably necessary.

While the GRC’s guidance makes sense, ideally, custodians will not need to litigate over whether they made a reasonable effort to respond to an OPRA request submitted during the current health crisis. Requestors presumably appreciate that due to the extraordinary emergency faced by New Jersey, agencies cannot necessarily answer OPRA requests quickly.

The Covid-19 crisis has prompted the Legislature to enact a change to OPRA’s section on the deadline for responding to OPRA requests.

The statute now provides that the 7-business day response deadline does not apply during a period that has been declared a state of emergency, public health emergency, or state or local disaster emergency. However, the statute further states that the custodian must “make a reasonable effort, as the circumstances permit, to respond …within seven business days or as soon as possible thereafter.”

I’m concerned that this well-intentioned law will have negative consequences in the future for public bodies, by casting doubt on what has been the settled rule that custodians may extend the 7-day period where reasonably necessary under the circumstances. The courts and the GRC have consistently upheld this principle, permitting extensions well beyond 7 days, as long as the custodian could show good cause for the delay.

However, the amended version of OPRA gives requestors an argument that now extensions are permissible only during an emergency period, and not for any other reason. I doubt the Legislature intended this result, but the legislative intent is not clear in this regard. Public bodies should expect to see requestors raise this argument in future OPRA matters, once we finally get past our current public health crisis period.

I had a great time last week presenting a full day training session to the Office of the Union County Prosecutor on “The Open Public Records Act for New Jersey Prosecutors.” The presentation, geared to assistant prosecutors, covered all the basics of OPRA, and also included in-depth discussion of topics such as access to law enforcement records, important OPRA case law, and OPRA litigation practice tips.

This presentation can be customized to the needs of any New Jersey law enforcement agency. Please email me at lewscheindlin@gmail.com if you would like more information about OPRA training.

In the wake of the Supreme Court’s Lyndhurst opinion, the AOC has issued a directive on how judges must handle lawsuits which seek release of a dashcam video of a fatal police shooting. The directive says that these are common law right to know cases which should be subject to the summary action court rule procedures that apply to OPRA cases.

This is a clear statement from the Judiciary that litigation over fatal police shooting videos should be handled as quickly as possible. Note, however, that the common law, unlike OPRA, does not have a deadline for the agency’s response to the request for disclosure. While a response to a common law request should not be unreasonably delayed, there’s no legal requirement that it be made within OPRA’s 7-business day time frame.