The GRC’s Strict Application Of OPRA’s “Immediate Access” Provision

I’ve previously pointed out that the GRC’s interpretation of the “immediate access” provision is unrealistic. The agency has said that custodians must respond to these requests “at once,” and has found custodians in violation of this section of the statute where they’ve provided the records within only 4 days of receiving the request.

A recent GRC decision continues this strict approach. In Scheeler v. Office of Attorney General (2014-236), the requestor asked for legal bills submitted by a law firm over an 8-month period. Three business days later, the custodian provided 150 pages of responsive records. The GRC  held that the custodian violated OPRA because she did not immediately write to the requestor to advise that some time would be needed to review and release the records.

I don’t think this interpretation is consistent with OPRA.  A requestor has to appreciate that it is impossible for a custodian to release several months’ worth of attorney bills instantly. As the GRC acknowledged, because attorney bills must be carefully reviewed for privileged information, they ordinarily cannot be disclosed quickly. In other words, a custodian simply cannot release attorney bills immediately upon receiving a request. Here, the custodian disclosed a large number of such records only 3 days after receiving the request, which is surely the type of reasonable outcome the statute intends.

There are no court cases addressing this issue, so custodians must keep in mind the GRC’s hard line approach in handling “immediate access” requests.


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