OPRA litigation, in both court and the GRC, often involves the question of whether the public body did an adequate search for responsive records. When this issue is raised, the custodian, and any other employees involved, may have to submit a certification detailing how they conducted the search. Although this seems to be a straightforward requirement, a recent Appellate Division case shows that some public bodies do not fully understand how the search must be described.

Carter v. Franklin Fire District 1 involved a GRC case in which the requestor challenged the adequacy of the public body’s search. The custodian’s certifications explained that he had asked various people to search for responsive records, including District employees and its IT vendor. The Appellate Division held that these certifications were deficient because they were not based on his personal knowledge. Because the custodian could not say how the other people conducted their searches, he could not properly certify, based on personal knowledge, as to the process and scope of the searches, and whether all responsive records were in fact produced.

This unpublished opinion does not break any new ground; the Appellate Division held in 2017, in a published opinion, that a similar certification submitted in court litigation describing an OPRA records search was invalid because it was not based on the certifying individual’s personal knowledge. Still, it’s helpful to have a reminder that in OPRA litigation, it’s not sufficient for custodians to describe searches that they were not personally involved in.