As discussed here, compliance with OPRA’s ambiguous requirement that “immediate access” be granted to certain records is difficult. The GRC takes an extremely strict approach to applying this statutory section. Unfortunately, in a recent decision, the GRC also incorrectly interpreted this portion of the statute, in holding that a custodian had violated OPRA even though access to the requested records had not been denied. See Scheeler v. Dept. of Ed.

In this case, the requestor made a multi-part request. One part sought legal bills, which are subject to the immediate access provision. After a brief extension period, the custodian responded to the entire request, providing some documents and advising the requestor that the requested legal bills did not exist.

The GRC ruled that the custodian had violated OPRA with regard to the legal bill portion of the request. It said that the custodian was obligated to tell the requestor immediately that there were no such bills, rather than wait until the final day of the extension period.

In my view, the GRC’s conclusion is inconsistent with the statute, which by its plain language is directed at ensuring that citizens can obtain 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, as here, the requested record does not exist.

In any event, custodians must keep in mind that the GRC will find them to have violated OPRA if they fail to advise a requestor right away that requested “immediate access” records do not exist.