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.