Public bodies often receive overbroad OPRA requests that don’t identify specific records. These requests are written in the style of discovery interrogatories, demanding all correspondence about a topic, or all correspondence involving various people or entities. The courts have ruled that this type of request is invalid.

The Appellate Division has once again upheld the denial of such an invalid request, in an unpublished opinion, Serringer v. Office of the Governor.

The request sought all correspondence between the Governor’s Office and Choose NJ, Inc. between 1/1/13 and 4/24/15. The court held that this is an invalid blanket request. The court said that the request’s failure to identify the subject matter of the correspondence rendered it improper, as answering the request would have required every employee of the Governor’s Office to search every file and email account for potentially relevant records.

Even though the law is clearly settled that OPRA does not require a custodian to conduct research in order to answer a request, requestors continue to make this demand. In an unpublished opinion issued today, Branin v. Collingswood Boro Custodian, the Appellate Division once again rejected a requestor’s argument that the custodian should have performed research to find the documents sought.

In Branin, the requestor asked for the settlement agreement in certain litigation. There was no such document. The court stated that the custodian could have figured out the terms resolving the litigation by researching documents in the Borough solicitor’s litigation file, and having the solicitor explain the significance of various documents. But, the court stated flatly, “OPRA does not require such research.”

Since OPRA’s enactment, on an almost daily basis custodians have struggled with the issue of whether they  must comply with a request that they produce a report showing certain information extracted from an agency’s computer databases. See this post for additional discussion of the question. Although the compilation sought can be put together by running an electronic search, the statute does not clearly require custodians to perform this function and produce the requested report.

In a precedential opinion issued today, Paff v. Galloway Township, the Appellate Division unambiguously held that OPRA does not permit this type of request, because it involves the creation of a new record. The court stated that “OPRA does not require the creation of a new government record that does not exist at the time of a request, even if the information sought to be included in the new government record is stored or maintained electronically in other government records.”

The requestor in this case had asked the Township for a log showing the sender, recipient, date and subject matter of emails of certain Township employees over a specific period of time. He argued that OPRA requires the log to be disclosed because the information requested is part of the emails, which are government records, and the data can be easily compiled into a log. But the court rejected this position because the record that was actually requested–the email log itself–simply did not exist, and therefore a new record would have to be created.

Critically, the court noted that the ease of compiling a particular log is not relevant. It understood that a contrary ruling would have “far-reaching implications,” in requiring public agencies to produce many kinds of new lists and compilations.

This is why this opinion is so significant. The requestor’s argument did not apply only to email logs; it covered any compilation of information drawn from any agency database. If the requestor’s position had been upheld, OPRA would have become a vehicle for requestors to require public bodies to compile and produce an unlimited variety of reports from the agency’s records. This result is completely contrary to the basic principle that OPRA does not obligate record custodians to research and collate information for requestors.

While other OPRA cases, such as ones involving law enforcement records, may receive more press attention, the Paff v. Galloway opinion will have a far greater impact on the daily work of all record custodians in New Jersey.

In its recent opinion in Lagerkvist v. Office of the Governor, the Appellate Division rejected the notion that a records custodian is required to work with the requestor to turn an invalid request into a proper request that will result in providing the information sought by the requestor.

The courts have long held that OPRA does not permit overbroad requests that require the custodian to perform research. The request in Lagerkvist was denied for this reason. On appeal, the requestor argued that if the custodian rejects a request as overbroad, the statute obligates him to work with the requestor to refashion the request into one that properly asks for specific, identifiable records. Under this interpretation of OPRA, the task of a custodian is to be like a reference librarian, and make suggestions that will aid a requestor’s research project.

The Appellate Division firmly rejected this position. The court stated that OPRA contains no such requirement. The statute spells out the custodian’s duties in N.J.S.A. 47:1A-5g, and nothing there indicates that the custodian must assist the requestor with his research. The statute limits the custodian’s duties to finding and releasing the specific records requested. Quoting a 2014 Appellate Division opinion, the court emphasized that there is “no legal basis to expand the custodian’s role beyond what the Legislature specifically described in N.J.S.A. 47:1A-5g.”

The court’s refusal to add a new duty to the custodian’s obligations is crucial, in view of the heavy workload already shouldered by custodians in dealing with the high volume of valid OPRA requests.

The Appellate Division issued a significant opinion today, Lagerkvist v. Office of the Governor.  In just 10 pages, this published opinion deals with several difficult issues that regularly confront OPRA custodians, including how to identify an invalid OPRA request and how a custodian must respond to such a request.

The request in Lagerkvist asked the Governor’s Office for all records of out-of-state travel, since 2012, by the Governor and members of his senior staff to “third-party funded events,” including records of travel arrangements, expenses, schedules, and documents showing the Governor’s or other official’s role in the event. The request also sought all emails regarding the arrangements and events.

The court held that this was an invalid research request. It explained that to satisfy the request, the custodian would have to determine which travel records correlated to the Governor and staff members; attempt to determine which of these were for events funded by third parties; and collect all relevant paper and electronic documents. The court said that doing all this “convert[s] a custodian into a researcher,” which is contrary to OPRA.

The Appellate Division also rejected the requestor’s argument that the Governor’s Office custodian did not respond properly to the invalid request. Lagerkvist complained that the denial letter incorrectly said the request was “unclear.” The court dismissed this argument as irrelevant to the question of whether the request in fact was valid. The court further noted that because the denial letter also cited case law stating that overbroad requests are invalid, the custodian appropriately explained that he was denying the request for this reason.

In addition, the court rejected the argument that the custodian violated OPRA by not replying to an email the requestor sent him in response to the denial letter, which purported to clarify the request. Lagerkvist argued that OPRA imposes a duty upon a custodian to explain “the reasons for denial of access with such specificity that the requestor can modify the inquiry in order to achieve success.” The court disagreed, saying that OPRA requires only that the custodian give a specific basis for the denial of the request, as the custodian did here. Having answered the request, the custodian had no additional duty to work with the requestor to assist him in his effort to obtain records.

This last holding is particularly useful. This is the first precedential opinion to say expressly that the custodian has no legal obligation to explain the basis for denial of the request in a way that will enable the requestor to submit a valid request. While the custodian of course has the discretion to provide such assistance to the requestor, there is no OPRA violation if he chooses not to do so.

Custodians often receive OPRA requests that do not properly ask for identifiable records, and instead require research to find responsive records. A common example of this problem is a request that seeks all information about a broad topic. As shown in this recent trial court opinion, this type of request is invalid.

The request, made to Lakewood Township, sought

Any proposal, request, inquiry or application, formal or informal, from any entity or individual  to acquire, swap, lease, exchange or engage in any other transaction related to any land contained within or directly adjoining, the Crystal Lake Preserve, and any communications…concerning same, since January 1, 2013.

The custodian denied the request on the ground that it sought “information and research.” She encouraged the requestor to refine the request and be more specific about what it was looking for. The requestor responded by filing suit.

Judge Grasso determined that the request was invalid for failing to identify records with specificity. He held that the request’s broad language, which covered any individual or entity and applied to any type of communication regarding any type of transaction related to land in or adjoining the Preserve, was an improper open-ended demand that required analyzing all Township records.

The judge made the salient point that requests like the one at issue here, “which are fashioned more like an interrogatory, are usually problematic [under OPRA] due to their lack of specificity….” Unfortunately, requestors continue to make such “interrogatory” requests, even though they are invalid under OPRA.

A trial judge recently issued this opinion dismissing Senator Loretta Weinberg’s lawsuit against the New Jersey Sports and Exposition Authority (NJSEA) over its response to her OPRA request for information concerning the closure of the Izod Center. Although this opinion doesn’t carry the weight of judicial precedent, it’s of interest because it shows how an agency and a judge dealt with a common problem under OPRA–how to handle OPRA requests that are overbroad and improperly fail to identify specific records.

The request in issue here was a classic example of an information demand that is not valid under OPRA case law. The request had 16 parts and sought a wide range of information, including all documents “related in any way” to the agency’s consideration of and decision to close the Izod. Also, many of the sections of the request asked for all records concerning other broad topics. For example, one part sought any documents showing discussions or communications with “any individual or entity” concerning the Prudential Center’s plan to “explore investment opportunities in real estate projects near the Prudential Center within the previous five years.”

In my view, the NJSEA responded to this improper request in a sensible way that minimized its litigation risk. The agency could have simply denied the entire request outright on the ground that it failed to ask for specific records and required the custodian to conduct research. Instead, it advised Sen. Weinberg’s office that much of the request was overbroad and asked that it be clarified and narrowed. In addition, the agency indicated that it would supply some records, but needed more time due to the voluminous nature of the request. It eventually released approximately 400 documents and offered to meet with the requestor to discuss further.

The requestor declined to narrow the request  and filed suit. Judge Doyne held that the request was invalid because it required the custodian to conduct research and exercise discretion in order to respond. The judge said the custodian would have to interview agency employees to determine what documents might, for example, relate to their consideration of the closure decision, and then exercise discretion as to which of these documents were responsive.

The judge concluded that this procedure would violate the basic principle under OPRA that it is up to the requestor to identify the records sought, rather than force the custodian to make that judgment.

The judge’s decision was also influenced by the NJSEA’s efforts to work with the requestor and provide some documents. The fact that the NJSEA released documents did not alter the invalidity of the OPRA request. As the judge astutely observed, the NJSEA should not be found in violation of OPRA for making good faith attempts to reach a resolution of the improper request, consistent with OPRA’s policies favoring cooperation between requestors and agencies.