In an unpublished opinion, the Appellate Division determined that a public body acted appropriately, and did not violate OPRA’s response deadline, where it told the requestor it would search for the requested records after the end of a Covid shutdown. C.E. v. Elizabeth Public School Dist. This is the first appellate opinion to deal with the effect of pandemic closures on the handling of an OPRA request.

The OPRA request was submitted to the School District in May 2020, when all District schools and offices were closed indefinitely due to Covid. As a result, the District advised the requestor, “we will respond to your request for records when circumstances allowing for the reopening of the District and access to records permit.” It explained that the search of the records sought could only be done on the premises. The District eventually provided the requested records in March 2021, shortly after being able to return to the office.

The appeal concerned the requestor’s claim for attorney fees, based on the catalyst theory–that its litigation, which it had filed in the Law Division in 2020, caused the release of records in 2021. The Appellate Division rejected this argument because the District had not refused to disclose any records; instead, its answer to the OPRA request was that it would produce responsive records when able to do so. The requestor’s litigation, said the court, did not cause the District to release the records.

The requestor attempted to avoid this conclusion by arguing that the District’s initial response should be deemed a denial of the request, because the District did not fulfill the request within OPRA’s 7-business day deadline. The court found this argument to be flawed, because the Legislature suspended this OPRA response deadline during the Covid emergency. Instead of requiring the custodian to respond within a specific time frame, the statute stated that a custodian must make a reasonable effort under the circumstances to respond. The Court concluded here that the District did make a reasonable effort, given the impact of the Covid-related closure on its ability to search for responsive records.