A trial judge recently issued this opinion dismissing Senator Loretta Weinberg’s lawsuit against the New Jersey Sports and Exposition Authority (NJSEA) over its response to her OPRA request for information concerning the closure of the Izod Center. Although this opinion doesn’t carry the weight of judicial precedent, it’s of interest because it shows how an agency and a judge dealt with a common problem under OPRA–how to handle OPRA requests that are overbroad and improperly fail to identify specific records.
The request in issue here was a classic example of an information demand that is not valid under OPRA case law. The request had 16 parts and sought a wide range of information, including all documents “related in any way” to the agency’s consideration of and decision to close the Izod. Also, many of the sections of the request asked for all records concerning other broad topics. For example, one part sought any documents showing discussions or communications with “any individual or entity” concerning the Prudential Center’s plan to “explore investment opportunities in real estate projects near the Prudential Center within the previous five years.”
In my view, the NJSEA responded to this improper request in a sensible way that minimized its litigation risk. The agency could have simply denied the entire request outright on the ground that it failed to ask for specific records and required the custodian to conduct research. Instead, it advised Sen. Weinberg’s office that much of the request was overbroad and asked that it be clarified and narrowed. In addition, the agency indicated that it would supply some records, but needed more time due to the voluminous nature of the request. It eventually released approximately 400 documents and offered to meet with the requestor to discuss further.
The requestor declined to narrow the request and filed suit. Judge Doyne held that the request was invalid because it required the custodian to conduct research and exercise discretion in order to respond. The judge said the custodian would have to interview agency employees to determine what documents might, for example, relate to their consideration of the closure decision, and then exercise discretion as to which of these documents were responsive.
The judge concluded that this procedure would violate the basic principle under OPRA that it is up to the requestor to identify the records sought, rather than force the custodian to make that judgment.
The judge’s decision was also influenced by the NJSEA’s efforts to work with the requestor and provide some documents. The fact that the NJSEA released documents did not alter the invalidity of the OPRA request. As the judge astutely observed, the NJSEA should not be found in violation of OPRA for making good faith attempts to reach a resolution of the improper request, consistent with OPRA’s policies favoring cooperation between requestors and agencies.