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.