A few months ago, I discussed the GRC’s decision in Scheeler v. Dept. of Ed., which involved, in my view, a misinterpretation of OPRA’s provision requiring immediate access to certain types of records. The GRC recently denied the custodian’s request for reconsideration of this decision. Unfortunately, the reconsideration decision continues the GRC’s pattern of misapplying this aspect of the statute.

In this case, the requestor made a multi-part request, one part of which sought certain legal bills. After a brief extension period, the custodian responded to the entire request, providing some documents and advising that the agency did not have the requested legal bills. The GRC ruled that the custodian had violated OPRA by not immediately telling the requestor that there were no legal bills.

I think this conclusion is inconsistent with the statute, which says that citizens must be given immediate “access” to certain types of basic government documents, such as bills and contracts. There can be no violation of this right to “access” where the requested records do not exist.

In addition, I think that legal bills don’t fall under the immediate access requirement. They are significantly different from the other records covered by this provision–all of which can be quickly disclosed–because legal bills must be carefully reviewed for attorney-client privileged information before being released.

The Department of Education sought reconsideration of the GRC’s decision on a different basis. It argued that the records requested are not subject to the immediate access provision because they were not bills submitted to the Department for payment; instead, they were the documents submitted in litigation by a plaintiff in support of its application for an award of attorney fees.

The GRC rejected this argument, saying that the applicability of OPRA’s immediate access provision doesn’t depend on whether the bills were submitted to the agency. But this misses the whole point of OPRA’s immediate access provision. Its purpose is to require speedy disclosure of certain basic information held by public bodies, such as budgets, contracts, bills and employee salaries. Litigation records that are held by a different entity plainly do not come under the immediate access requirement.

There are no court cases on the immediate access provision, so the GRC’s decisions are the only precedent covering this section of the statute.