The law is clear that a custodian must make a reasonable search for records that are responsive to an OPRA request. However, there’s no law that defines what constitutes a reasonable search, and there are no court cases that provide guidance as to what a custodian must do to satisfy the reasonable search requirement.
The absence of standards governing searches leads to unnecessary, wasteful litigation. A recent Appellate Division opinion illustrates this problem. In Lawyers Comm. for 9/11 Inquiry v. State Police, the requestor asked the State Police for records related to the FBI’s investigation of a suspicious van in East Rutherford during the afternoon of September 11, 2001. The State Police denied the requests on the basis that it had no responsive records.
The requestor challenged this denial in the Law Division, claiming that the State Police did not make a sufficient search for records. In the trial court, the State Police submitted certifications from three officers, who explained how and where they searched, and stated that they found no responsive records. For reasons not described in the Appellate Division opinion, the trial judge required the State Police to submit additional certifications further detailing the search for records. The trial judge ultimately ruled that the State Police made a reasonable search and had “looked in the most logical places where anything related to the 9/11 inquiry would be.”
The Appellate Division affirmed. It noted that the requestor offered nothing but speculation in response to the State Police’s certifications, and that its argument that the search was improper lacked sufficient merit to warrant further discussion.
As can be seen, even though the requestor had no basis to indicate that the search was unreasonable, the agency still had to go to great lengths to prove to the court that its search was reasonable. If there were case law providing guidance as to what is a reasonable search, this matter might have been resolved without litigation. But in the absence of such standards, the requestor felt free to pursue litigation, in both the trial and appellate courts, despite lacking a basis for claiming that the State Police failed to make a legally proper search.