Last week, in addition to releasing a major, precedential OPRA opinion, the Appellate Division issued an interesting unpublished opinion that also may have a significant impact on OPRA matters. In Smith v. Moorestown Twp., the Appellate Division addressed a novel issue under OPRA–when a requestor receives the requested record within 7 business days, may he appeal to the GRC on the basis that the custodian did not respond to the request “as soon as possible?”

In this case, Smith filed a GRC complaint 5 business days after submitting his request, and the custodian granted his request on the 6th business day. The GRC dismissed his complaint as “unripe,” because it was filed during the statutory 7-business-day period. But Smith pointed out that OPRA requires custodians to grant or deny access to a government record “as soon as possible, but not later than seven business days after receiving the request.” (Italics added). He argued that this language gave him the right to challenge whether the custodian here failed to respond as soon as possible to his request.

The Appellate Division rejected this argument because OPRA only permits appeals to the GRC by a person who is “denied access” to a record. Smith was not denied access to the record he requested. And, the court said, the statute does not define the custodian’s failure to respond “as soon as possible” as a denial of access; instead, only the failure to respond within 7 business days is deemed a denial under the statute.

The Smith case is the first time I’ve seen the statute’s “as soon as possible” language directly addressed by a court. The court’s conclusion that this phrase does not override the statute’s language concerning the right to challenge the custodian’s denial of access is important. Requestors often complain that their requests were not answered quickly enough. The Appellate Division’s opinion makes clear that this type of claim cannot be the basis of an appeal to the GRC, or a court complaint, if the custodian grants the request by the specific deadline set by the statute.

It’s worth noting that the argument raised in Smith is likely to come up more often in the near future, due to the recent amendment to OPRA suspending the 7-business day response deadline during public health emergencies. The amendment says that although this deadline does not apply, custodians must make an effort to answer requests “as soon as possible.”