The Covid-19 crisis has prompted the Legislature to enact a change to OPRA’s section on the deadline for responding to OPRA requests.

The statute now provides that the 7-business day response deadline does not apply during a period that has been declared a state of emergency, public health emergency, or state or local disaster emergency. However, the statute further states that the custodian must “make a reasonable effort, as the circumstances permit, to respond …within seven business days or as soon as possible thereafter.”

I’m concerned that this well-intentioned law will have negative consequences in the future for public bodies, by casting doubt on what has been the settled rule that custodians may extend the 7-day period where reasonably necessary under the circumstances. The courts and the GRC have consistently upheld this principle, permitting extensions well beyond 7 days, as long as the custodian could show good cause for the delay.

However, the amended version of OPRA gives requestors an argument that now extensions are permissible only during an emergency period, and not for any other reason. I doubt the Legislature intended this result, but the legislative intent is not clear in this regard. Public bodies should expect to see requestors raise this argument in future OPRA matters, once we finally get past our current public health crisis period.