On June 21, the Appellate Division issued an opinion on a novel issue: whether an OPRA request may validly be submitted to the outside attorney for a public body, rather than to the custodian. The court held that such a request is invalid, because OPRA requires that requests be made to the custodian of records. S.W. v. Elizabeth Board of Ed.

The requestor in this case sought records of the Elizabeth Board of Education by sending an OPRA request to the Board’s “solicitor.” The opinion doesn’t say, but I understand this term to mean the outside attorney representing the Board, rather than an attorney who is a Board employee. The request was denied because it had not been sent to the custodian, nor to an officer, employee, or office of the school district.

The court upheld this denial as consistent with OPRA’s clear requirement that a request must be submitted to the agency’s custodian. It also rejected the claim that the Board’s attorney was covered by the statutory requirement that “an officer or employee of a public agency” who receives an OPRA request must forward the request to the custodian. Plainly, an outside attorney representing the agency is not an “officer or employee” of the agency.

The Appellate Division also addressed an issue that I discuss in my program on OPRA and the Rules of Professional Conduct, but that’s never been considered previously by a New Jersey court: whether RPC 4.2 prohibits a party that’s sued a public agency from submitting an OPRA request directly to the agency. The RPC prohibits direct communication with a client known to be represented by counsel; is submission of an OPRA request to the custodian, where the agency is represented by an attorney, covered by this rule? The court said it is not, emphasizing that the RPC actually exempts from its prohibition communications with the government, such as OPRA requests. Specifically, RPC 4.2 contains an exception for when the law authorizes such direct contact, to ensure “a citizen’s right of access to government decision makers.”

This is the first time a New Jersey court has addressed this ethics issue (although courts in other states have reached the same conclusion with regard to their public records laws and the RPCs). It’s unfortunate that the court’s opinion is not published, but it nevertheless provides helpful guidance.