One of OPRA’s more confusing requirements is that a custodian “ordinarily shall” grant “immediate access” to certain records, such as bills, contracts and employee salary information. The statute doesn’t define the meaning of the vague terms “ordinarily” and “immediate,” and the courts have not interpreted this language. As a result, it’s not clear exactly how quickly a custodian must respond to a request covered by the immediate access provision.
The GRC also has not clearly defined the immediate access requirement. In the FAQ section on its website, the GRC says the phrase means “at once, without delay,” unless there is a legitimate reason for delay, such as that the records are in use, in storage, or involve conversion to another medium.
Unfortunately, the “at once” standard is ambiguous and unrealistic. For example, it implies that the custodian must respond at the very the moment he sees a request for a bill. But as a practical matter this is impossible; the custodian needs time to figure out where the bill is located, obtain a copy, review it for potential confidential material and then prepare the document for sending to the requestor. And of course it is likely that at the same time, the custodian would be working on other matters with deadlines. Under these typical circumstances, it may take a diligent custodian a day or two to send out the requested bill. Would the GRC say this custodian violated OPRA?
The GRC’s cases do not answer this question. However, the GRC’s decisions show it takes a hard line on the immediate access provision. A recent decision illustrates this. In Giambri v. Sterling H.S. Dist. (#2014-394), the request sought contracts and salary information of 6 employees, as well as many other records. The custodian asked for an extension of time to respond to the entire request on the 5th business day after receipt of the request. The GRC stated that the custodian violated OPRA by failing to respond immediately to the contract and salary portions of the request. It noted that it had previously determined that responding on the 4th business day is a violation.
The record before the GRC showed that during the same time frame the custodian was dealing with numerous other OPRA requests submitted by Giambri. Although having to deal with the other requests presumably affected the custodian’s ability to respond quickly to the request in issue, the GRC did not mention this factor in holding that the custodian failed to comply with the immediate access requirement.
As noted above, no court has spoken on the immediate access requirement. Custodians should be aware of the GRC’s strict approach when a request for an “immediate access” record is received.