Custodians may lawfully extend the time to answer an OPRA request beyond the statutory period of 7 business days. However, as shown in a recent decision, the GRC may determine that too long an extension period constitutes a violation of OPRA.

In Rodriguez v. Kean Univ., the request sought correspondence among a large group of people concerning certain topics. The custodian needed 11 extensions, totaling around 100 business days, to answer this request. The request was made on November 4, 2014 and was answered on April 23, 2015.

The GRC noted that the custodian had to work with several people to determine if there were any responsive records. However, it did not consider this a sufficient reason to justify what it deemed “an extensive delay” in responding to the request. The GRC concluded that the custodian violated OPRA by “unnecessarily” extending the response time. The agency did not penalize the custodian, finding that the violation was not knowing and willful.

Public bodies need to be aware of the risk that the GRC will find a violation, and perhaps impose a fine, where multiple extensions are taken before responding to an OPRA request.

A few months ago, I discussed the GRC’s decision in Scheeler v. Dept. of Ed., which involved, in my view, a misinterpretation of OPRA’s provision requiring immediate access to certain types of records. The GRC recently denied the custodian’s request for reconsideration of this decision. Unfortunately, the reconsideration decision continues the GRC’s pattern of misapplying this aspect of the statute.

In this case, the requestor made a multi-part request, one part of which sought certain legal bills. After a brief extension period, the custodian responded to the entire request, providing some documents and advising that the agency did not have the requested legal bills. The GRC ruled that the custodian had violated OPRA by not immediately telling the requestor that there were no legal bills.

I think this conclusion is inconsistent with the statute, which says that citizens must be given immediate “access” to certain types of basic government documents, such as bills and contracts. There can be no violation of this right to “access” where the requested records do not exist.

In addition, I think that legal bills don’t fall under the immediate access requirement. They are significantly different from the other records covered by this provision–all of which can be quickly disclosed–because legal bills must be carefully reviewed for attorney-client privileged information before being released.

The Department of Education sought reconsideration of the GRC’s decision on a different basis. It argued that the records requested are not subject to the immediate access provision because they were not bills submitted to the Department for payment; instead, they were the documents submitted in litigation by a plaintiff in support of its application for an award of attorney fees.

The GRC rejected this argument, saying that the applicability of OPRA’s immediate access provision doesn’t depend on whether the bills were submitted to the agency. But this misses the whole point of OPRA’s immediate access provision. Its purpose is to require speedy disclosure of certain basic information held by public bodies, such as budgets, contracts, bills and employee salaries. Litigation records that are held by a different entity plainly do not come under the immediate access requirement.

There are no court cases on the immediate access provision, so the GRC’s decisions are the only precedent covering this section of the statute.

This blog regularly summarizes the final decisions issued by the GRC at its meetings. The following are the final decisions issued at the GRC’s most recent meeting. For summaries of decisions from prior meetings, see here.

Shapiro v. City of Newark–The City correctly denied the request as invalid because it sought all documents concerning several topics. Although City employees failed to timely forward the OPRA request to the custodian, the evidence did not show who was at fault.

Garcia v. NJ Public Defender–The request was properly denied because it asked for Public Defender case file records, which are exempt.

Spillane v. NJDOC–The request was correctly denied because the records are exempt under regulations of the NJDOC.

Avila v. NJ Parole Bd.–Records related to executive clemency petitions are exempt under Executive Order 9 (1963).

Avila v. NJDOC–The request was properly denied because the agency had no responsive records.

Muata v. NJ Div. on Civil Rights–The request was properly denied because the agency had no responsive records.

Rodriguez v. Kean U.–The custodian violated OPRA by not immediately responding to the portion of the request seeking vouchers and invoices; the first response to the request came on the 8th business day after receipt. However, there was no knowing and willful violation, or denial of access, because the records were eventually provided.

Scheeler v. NJ DOE–The complaint was dismissed because it was filed before expiration of the extension period for responding to the request.

Rizzo v. Middlesex Prosecutor–The requested records were exempt criminal investigatory records. In addition, the agency’s mistaken previous disclosure of these records, during an inspection, did not preclude the subsequent denial of access on the basis that these records are exempt.

Drukerhoff v. NJ Parole Bd.–The request was properly denied because parole hearing records are exempt.

This blog regularly summarizes the final decisions issued by the GRC at its meetings. The following are the final decisions issued at the GRC’s most recent meeting. For summaries of decisions from prior meetings, see here.

-Zahler v. Ocean County College: The custodian made several errors in responding to the lengthy OPRA request–she did not respond to each part of the request, did not provide a basis for some of the redactions made, did not give a date certain for responding to the requestor’s amended request, and did not disclose all responsive information. The GRC also upheld the imposition of a special service charge, but reduced the fee by a few hundred dollars, on the basis that the proposed charge did not represent the actual time and effort needed to produce the record. Finally, the custodian’s violations were not knowing and willful.

-Scheeler v. NJ Attorney General’s Office: The custodian violated the “immediate access” provision by disclosing attorney invoices 3 days after receipt of the request. The custodian also erred in not providing a detailed basis for each redaction in the response. The custodian’s violations were not knowing and willful.

-Kemery v. Gloucester Tp. Fire Dist. 4: The custodian’s violation, in not initially providing the requested report, was not knowing and willful. The GRC also upheld the redaction of the personal email address of an official.

-Scheeler v. Galloway Tp.: The request for a settlement agreement was properly denied because at the time of the request, the agreement had not been finalized.

-Kleiner v. Ventnor: The custodian’s failure to provide the requested resume was not a knowing and willful violation. The custodian eventually disclosed the resume, with proper redactions made for the individual’s home address and for salary information concerning a non-public job.

-Mawhinney v. Egg Harbor Police Dept.: The custodian properly denied a request for various criminal investigatory records, but should have disclosed certain information from an arrest report. Traffic tickets also were incorrectly withheld. The failure to disclose these items was not knowing and willful.

-George v. NJ Div. of Consumer Affairs: The request was improperly submitted by email. The agency’s policy of declining to accept emailed requests was reasonable.

-Steelman v. Summit Parking Services Agency: The requested report was still in draft form and was therefore exempt as deliberative material. Although the custodian did not answer the request in a timely fashion, this was not a knowing and willful violation.

-Merritt v. NJDOC: The request was properly denied because the agency did not have possession of the requested records.

Scheeler v. NJ State Police: The requestor unreasonably rejected the custodian’s request for a brief additional extension of time to provide the records. Also, there was no basis to redact State Police firearm serial numbers from the records; however, these numbers were subsequently disclosed by the custodian, so this aspect of the complaint was moot. The initial failure to disclose was not a knowing and willful violation.

This blog regularly summarizes the final decisions issued by the GRC at its meetings. The following are the final decisions issued at the GRC’s most recent meeting. For summaries of decisions from prior meetings, see here.

-Walker v. City of Newark–there was no denial of access because the requested record did not exist.

-Caldwell v. East Brunswick–the complaint was dismissed because the complainant was neither the requestor nor the representative of the requestor.

-Long v. NJ Dept. of Corrections–there was no denial of access because the requested record did not exist.

Vandy v. Newfield Police Dept.–the OPRA request was invalid because it requested information rather than specific records.

-Murphy v. NJDEP–the custodian’s failure to respond sufficiently to the request was not a knowing and willful violation.

This blog regularly summarizes the final decisions issued by the GRC at its meetings. The following are the final decisions issued at the GRC’s most recent meeting. For summaries of decisions from prior meetings, see here.

-Ciccarone v. Dept. of Treasury–GRC partially reconsiders prior decision ordering disclosure and permits redactions of certain advisory, consultative, deliberative and attorney-client material. Also, the custodian did not commit a knowing and willful violation.

-Post v. NJ Highlands Council–the custodian properly denied access because a draft document is exempt, and the other documents sought by the request did not exist at the time of the request.

-Campisi v. City of Millville–the complaint was dismissed because it was filed before the expiration of the extension of time to answer the request.

-Dello Russo v. East Orange-the City’s policy of not accepting electronically-submitted OPRA requests is unreasonable under OPRA, and therefore the City was required to respond to the request here, which was submitted by email. The custodian did not commit a knowing and willful violation.

-Lio v. Boro. of Fairview–the custodian erred by not timely answering the request, but the request was properly denied because police internal affairs records are exempt.

-McGeachy v. NJ DOC–the request for inmate financial records was properly denied under Exec. Order 26 (2002), which exempts personal financial information from disclosure.

-Stolte v. State Police–the request was properly denied because no responsive records existed.

-Watts v. City of Pleasantville–the custodian conducted an inadequate search, but the violation was not knowing and willful because she searched again and provided all responsive records to the requestor.

-Bangala v. NJ Office of Public Defender and Lemmon v. NJ Office of Public Defender–the requests were properly denied, because OPRA exempts all case file records of the Public Defender.

-DeYoung v. Boro. of Folsom–the complaint was dismissed because the complainant was not the requestor.

In a recent decision, the GRC rejected the argument that a custodian is in violation of OPRA if he fails to designate another person to deal with OPRA requests while he is temporarily absent from the office.

The facts in this case, as recited by the GRC, seem to show a requestor trying to play “gotcha” with the public body. The requestor submitted his request on September 10, 2014. The same day, he received an automatic email reply stating that the custodian was away until after September 14. Thereafter, the requestor did not contact the agency about the status of his request. He filed a complaint with the GRC on September 23, based on the agency’s failure to respond by September 19 (7 business days after the request was made).

The custodian, through counsel, contacted the requestor on September 23 to advise that the request had been received on the 15th, when the custodian returned to the office, and therefore the 7-day period had not yet expired. The requestor refused to withdraw his complaint. The custodian fulfilled the request on September 24, which was 7 business days from the 15th.

The GRC held that the time frame for responding to the request began on September 15, when the custodian actually received the request. It also rejected the requestor’s claim that the custodian violated OPRA by not arranging for someone else to deal with OPRA requests while he was away. The GRC stated that OPRA imposes no such requirement.

The GRC noted that its position is that “best practices” would be to designate another employee to handle OPRA requests if the custodian is to be “unavailable for an extended amount of time.” But this suggestion is not equivalent to a mandate, and a custodian’s failure to follow the suggestion cannot be a violation of the statute.

Moreover, this case did not involve a material delay in responding to the OPRA request. The custodian told the requestor on September 23 that the deadline for responding to his request was September 24, which was only 3 business days after the date he had anticipated receiving a response. Despite this, the requestor pursued his GRC case.

The GRC’s decision here is consistent with the approach taken in various court opinions, see this post, in which judges have declined to impose liability upon public bodies that committed inconsequential errors in handling OPRA requests. These cases should serve as notice to requestors that they should not race to file complaints over trivial matters, such as minor delays caused by a custodian’s brief absence.

This blog regularly summarizes the final decisions issued by the GRC at its meetings. The following are the final decisions issued at the GRC’s most recent meeting. For summaries of decisions from prior meetings, see here.

Tompkins v. City of Newark–The custodian properly denied the request on the basis that there were no records, and appropriately indicated to the requestor that the records instead may be held by another agency.

Tompkins v. Essex Prosecutor–the portion of the request seeking the identity of the prosecutor who dismissed a certain complaint was an invalid request for information. The second part of the request was properly denied on the basis that the office did not have the requested records.

Kovacs v. Newark Police Dept.–the GRC reconsidered and reversed its order directing the custodian to comply with the request. Upon reconsideration, the GRC determined that the request, which asked for all arrest records and other reports pertaining to a specific individual, was an invalid research request. Because the request had no date range, the GRC concluded it would be an “immense burden” to locate responsive records.

King v. NJ DOC–the custodian properly denied access to information in a contractor’s RFP submission, based on the financial/proprietary/advantage to competitors exemption.

Scutro v. City of Linden–the custodian erred in failing to find and produce a requested record, but this was not a knowing and willful violation.

Nichols v. Bergen County Housing Authority–the GRC upheld the denial of the request because a trial judge had previously considered the same request and upheld its denial by the Bergen Housing Authority.

Barker v. Boro of Lakehurst–an agreement between the Boro and an employee, resolving a disciplinary matter involving that employee, is a confidential personnel record.

Verry v. Franklin Fire Dist. 1–the GRC dismissed the complaint as not ripe, because it was filed before the deadline for the custodian’s response to the OPRA request.

Rodriguez v. Kean U.–the custodian erred in withholding portions of some documents, but this was not a knowing and willful violation.

Scheeler v. Galloway Tp.–the custodian properly denied the initial request for a settlement agreement because at the time the request was made, the agreement had not been fully executed. And because the custodian subsequently provided the requestor with the executed agreement, there was no denial of access.

Durham v. NJ DOC–the custodian properly denied one request on the ground that there were no records. There was no denial of access as to another request, because the custodian made those records available for inspection.

Stolte v. Burlington Prosecutor–the request was properly denied because it did not contain enough information for the custodian to locate responsive records.

Stolte v. NJ Div. on Civil Rights–the request was properly denied because the agency had no responsive records.

Altomonte v. Branchburg School District–the custodian properly withheld records of a student pusuant to the requirements of FERPA.

Post v. NJ Office of Attorney General–there was no unlawful denial of access because the agency had no responsive records.