On September 30th the Appellate Division issued an unpublished opinion, Academy Express v. Rutgers, which deals with several critical OPRA issues. Most importantly, the court ruled that a custodian is not obligated to give a detailed description of the records that are withheld in the response to the OPRA request.

Requestors often argue that such a description must be provided by the agency to enable them to assess the validity of the stated basis for withholding the record, but the court rejected this claim.

In addition, the court stated that an OPRA complaint cannot be brought as part of a complaint asserting non-OPRA claims, and it reaffirmed that a request for all correspondence concerning a topic is invalid.

Academy Express filed a multi-count complaint against Rutgers concerning Rutgers’ failure to award it a contract to operate the University’s bus system. The complaint also included an OPRA claim regarding Rutgers’ response to Academy’s requests for documents related to the contract award. The trial judge rejected the various claims pertaining to the contract, but determined that Rutgers had violated OPRA and was liable for attorney fees.

One violation, said the trial judge, was that  while Rutgers correctly denied access to a few pages of another bidder’s bid proposal under the exemption for proprietary, commercial or financial material, it did not sufficiently describe the withheld documents, leaving Academy “unable to ascertain the propriety of the assertion of privilege.”

The Appellate Division disagreed. It found that Rutgers’ response was proper, where it simply identified the applicable exemption and the pages that were redacted. And crucially, the Appellate Division said there is no authority supporting the claim that “notwithstanding the proper withholding of a document, a perceived shortcoming in the description of what was properly withheld would be sufficient to find a violation of OPRA.”

This is the first appellate court opinion to deal with the argument frequently made by requestors that a custodian’s response to a request must provide a detailed description of any document that is withheld. The court recognized that the law does not impose such a requirement. The statute only requires that the custodian state the basis for denying a request, as Rutgers did in this case.

The Appellate Division also held that Academy’s request for all correspondence concerning the RFP and the contract award was an invalid request. This is yet another example of what I’ve noted before: requestors continue to make this type of request, even though courts consistently say such a request is invalid.

Finally, attorneys should take note of the court’s ruling that an OPRA case cannot be brought as part of a complaint that asserts other claims. An OPRA complaint must be filed as a summary action and therefore cannot be litigated together with non-OPRA claims.