In an unpublished opinion, issued today, the Appellate Division affirmed the GRC’s conclusion that the City of Orange custodian should not be penalized for an untimely response to an OPRA request.

The City did not respond to the request for a certain invoice until about 6 weeks after the request was made. The court agreed with the GRC that no penalty was warranted for this violation of OPRA’s deadline, because the custodian did not willfully violate OPRA, and her actions did not result in an unreasonable denial of access. Despite the delayed response to the requestor, the custodian did make timely efforts to fulfill the request by contacting various employees to obtain the record in question. Also, the custodian did eventually provide responsive records to the requestor.

There are surprisingly few published court opinions dealing specifically with what type of conduct will subject a custodian to OPRA’s monetary penalties. In this case, the court cited a 2008 published opinion, which states that there must be a “positive element of conscious wrongdoing” to impose a fine. Since 2008, there have been no Supreme Court rulings, or other published Appellate Division opinions, on this issue.