Monthly Archives: February 2016

Update: OPRA Requests By Non-Citizens

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As discussed in this article, a Cape May County trial court judge recently dismissed an OPRA complaint on the ground that OPRA permits requests only by New Jersey citizens. The article notes that a Burlington County trial judge reached the opposite conclusion in another case a few weeks ago. The public body in that case has appealed, and the requestor’s attorney in the Cape May case said that her client will appeal as well.

As a result, the Appellate Division will be resolving this novel question of whether the Legislature intended to preclude those who are not New Jersey citizens from making OPRA requests. The appellate court probably won’t issue its decision until the middle of 2017. Until then, because of the conflicting trial court decisions, there’s no way to predict how another trial judge will rule if a public body denies a non-citizen’s OPRA request.

As noted here, my view is that it really doesn’t matter how the courts ultimately resolve the issue, because it is impossible to stop requestors from other states from obtaining New Jersey public records. If the Appellate Division interprets OPRA to mean that only New Jersey citizens may make requests, non-citizens will get around the prohibition by submitting  anonymous requests, or by having a New Jersey citizen make OPRA requests for them.

 

 

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

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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.

 

Summaries of GRC Decisions, January 2016 meeting

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This blog regularly summarizes the final decisions issued by the GRC at its meetings. The following are the final decisions issued at the GRC’s most recent meeting. For summaries of decisions from prior meetings, see here.

-Zahler v. Ocean County College: The custodian made several errors in responding to the lengthy OPRA request–she did not respond to each part of the request, did not provide a basis for some of the redactions made, did not give a date certain for responding to the requestor’s amended request, and did not disclose all responsive information. The GRC also upheld the imposition of a special service charge, but reduced the fee by a few hundred dollars, on the basis that the proposed charge did not represent the actual time and effort needed to produce the record. Finally, the custodian’s violations were not knowing and willful.

-Scheeler v. NJ Attorney General’s Office: The custodian violated the “immediate access” provision by disclosing attorney invoices 3 days after receipt of the request. The custodian also erred in not providing a detailed basis for each redaction in the response. The custodian’s violations were not knowing and willful.

-Kemery v. Gloucester Tp. Fire Dist. 4: The custodian’s violation, in not initially providing the requested report, was not knowing and willful. The GRC also upheld the redaction of the personal email address of an official.

-Scheeler v. Galloway Tp.: The request for a settlement agreement was properly denied because at the time of the request, the agreement had not been finalized.

-Kleiner v. Ventnor: The custodian’s failure to provide the requested resume was not a knowing and willful violation. The custodian eventually disclosed the resume, with proper redactions made for the individual’s home address and for salary information concerning a non-public job.

-Mawhinney v. Egg Harbor Police Dept.: The custodian properly denied a request for various criminal investigatory records, but should have disclosed certain information from an arrest report. Traffic tickets also were incorrectly withheld. The failure to disclose these items was not knowing and willful.

-George v. NJ Div. of Consumer Affairs: The request was improperly submitted by email. The agency’s policy of declining to accept emailed requests was reasonable.

-Steelman v. Summit Parking Services Agency: The requested report was still in draft form and was therefore exempt as deliberative material. Although the custodian did not answer the request in a timely fashion, this was not a knowing and willful violation.

-Merritt v. NJDOC: The request was properly denied because the agency did not have possession of the requested records.

Scheeler v. NJ State Police: The requestor unreasonably rejected the custodian’s request for a brief additional extension of time to provide the records. Also, there was no basis to redact State Police firearm serial numbers from the records; however, these numbers were subsequently disclosed by the custodian, so this aspect of the complaint was moot. The initial failure to disclose was not a knowing and willful violation.