Monthly Archives: June 2024

Don’t Overlook These Beneficial Changes Made In The OPRA Reform Law

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The provisions of the recent OPRA amendments that have gotten the most attention are new sections dealing with attorney fee awards, commercial requests, and authorization of suits against requestors who seek to interfere with government operations. These are important, but today I want to focus on other significant revisions that have been somewhat under the radar.

Over the years, OPRA’s unclear language, or in some cases, the absence of language, caused several problems in implementing the statute. The new law addresses many of these issues. Here are a few examples of these beneficial changes:

-Since OPRA’s original enactment, it’s been unclear whether the statute’s privacy provision required custodians to redact individuals’ personal information, particularly home addresses and personal email addresses, from government records. This ambiguity led to much litigation over the years, and as I’ve often noted, the case law has not resulted in much clarity. The new law resolves this problem by expressly stating when address information must be kept confidential. And the statute specifically overturns the Supreme Court’s untenable interpretation of the privacy section in the Bozzi case, where the Court determined pet owners have no expectation of privacy when they apply for a pet license, and therefore their home addresses must be disclosed.

-Custodians constantly struggle with responding to overly broad requests that don’t identify specific records, and instead require custodians to conduct research to satisfy the request. Although the courts have consistently stated that such a request is invalid, requestors keep making this type of request. The amended statute now expressly says that requests involving research are invalid, and more specifically defines what’s needed for a request to be valid.

-One of the most problematic aspects of the courts’ interpretation of OPRA has been that a person who is litigating against an agency, with the opportunity to obtain agency records through discovery, is allowed to separately submit an OPRA request with that agency, seeking the same records. The new law expressly precludes litigants from doing this.

-Unlike all other state agencies (and the courts), the GRC does not have a deadline for a requestor to file a complaint with the GRC, giving a requestor an unlimited amount of time to challenge a custodian’s OPRA request. The statute resolves this absurd situation, imposing a 45-day period for filing GRC complaints.

The Amended OPRA Law Means Some New Work for Custodians

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A primary purpose of the recently-enacted amendments to OPRA is to make OPRA compliance by public bodies more efficient and less costly, thereby saving taxpayers’ money. Various provisions in the new law are aimed at this objective. For example, there are some new exemptions from what is a government record; there’s language that enables custodians to refer requestors to a website for the documents sought; and there are sections permitting the denial of duplicative requests as well as requests for records that are also the subject of discovery in litigation.

But the law also potentially creates a lot of new work for custodians. I’ll delve into these in detail in subsequent posts, but here are a few examples:

-Custodians must ensure they’ve redacted from records “personal identifying information,” which covers several additional types of information, such as credit and debit card numbers, bank account information, month and day of birth, telephone numbers, the street address of a person’s home, and a personal email address.

-Metadata is exempt, except for the “portion that identifies authorship, identity of editor, and time of change,” so custodians will have to take the time to go through metadata to identify this public information.

-OPRA now says that government records “shall be made available to the public on a publicly available website to the extent feasible,” and the custodian must provide the requestor with directions to assist in finding these records on the website.

-There are new requirements for fulfilling requests for a “commercial purpose.” Such requests must be answered within 14 business days, but if a commercial requestor would like to receive the record within 7 business days, the custodian must provide the record, and may charge a special service fee for it.

In addition to creating new work, I anticipate that these and other new provisions in the statute will generate legal disputes as well. I’ll discuss potential legal issues posed by the legislation in future posts.

Substantial Revisions to OPRA Enacted

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As readers of this blog know, on June 5th the Governor signed into law a bill that, for the first time since OPRA’s inception, significantly revises the law. Over the next several weeks, I’ll publish posts analyzing each of the various new provisions in the statute. Today, I want to make a few general comments about this comprehensive revision of OPRA.

Requestors, the media, and other organizations that oppose the bill have levelled the charge that enacting the bill has “gutted” government transparency under OPRA. I disagree. OPRA continues to provide public access to most records made, maintained or received by the government. The statute’s key requirements governing requests for government records, and responding to requests, have not changed.

The claim that the new legislation undermines public access is based primarily on the fact that attorney fees will now not be automatically awarded to a requestor who succeeds in OPRA litigation. This argument rests on two premises: without mandatory fee awards, attorneys will not take on cases for OPRA requestors; and without the prospect of such awards, public bodies will have less motivation to comply with OPRA.

But OPRA, as revised, still provides for fee-shifting. It states that a court or the GRC “may” award attorney fees to a prevailing requestor; moreover, if the agency unreasonably denied access, or otherwise acted in bad faith, an attorney fee award is mandatory. So there is still a substantial threat that a public agency will have to pay the requestor’s attorney fees when there is litigation.

It appears, as indicated in the Governor’s bill signing statement, that OPRA now follows the model of the federal FOIA, which gives a court discretion to award fees to a prevailing requestor, and requires consideration of the reasonableness of the government’s denial of access in making this determination. I’m not aware of FOIA requestors having problems retaining attorneys for litigation.

The other reason given for claiming that OPRA will no longer be effective focuses on the new provision that allows public entities to sue for a protective order where the requestor sought records “with the intent to substantially interrupt the performance of government function.” The argument is that this threat of being sued will deter people from making requests.

This logic doesn’t hold up. The section does not apply to the typical requestor who is legitimately seeking records, and it’s appropriate for the Legislature to provide a means to deal with someone who uses OPRA to interfere with government.

In addition, I doubt there will be much of a deterrent effect because I think this type of protective order suit will rarely be filed. First, such a complaint may be filed only after the public body has made a “good faith effort to reach an informal resolution of the issues relating to the records requests.” And if this step doesn’t work out, there is an exceptionally high bar to filing a complaint against the requestor: it’s often very difficult to prove in court what the requestor’s intent was, and this is heightened even more by the fact that the statute says this intent must be proven by clear and convincing evidence, an extremely strict burden of proof.

In short, OPRA has not been severely weakened. I think requestors will continue to use OPRA as extensively as they have over the past 22 years of the statute’s existence.

The present situation reminds me of the state of affairs when OPRA was originally enacted, and I was overseeing OPRA legal issues for the Attorney General’s Office. Over the first several years of the statute’s existence, we fielded countless questions, and handled many litigation matters, concerning how to interpret OPRA’s provisions. I expect public bodies throughout the State will similarly have numerous questions, and face a lot of litigation, over the meaning of the new language of OPRA.