Tag Archives: access to public records

Access Begins With A Valid OPRA Request

Each month, we receive dozens of inquiries from people who are upset that their OPRA requests were denied. The most frequent basis for denial is that the request is invalid as written. Although there are records custodians who will happily work with the requestor to fulfill a less-than-perfect request, other custodians will quickly deny any request that does not strictly comply with OPRA’s requirements.  A valid OPRA request is thus the critical first step to obtaining public records and it is important to draft a request that follows some basic guidelines.

Guideline 1:  Do not ask questions in an OPRA request. Although people usually file OPRA requests because they have questions about some public issue, an agency has no obligation to answer those questions. An agency’s only obligation under OPRA is to produce non-exempt public records. Although elected public officials may answer questions via email or at a public meeting, an OPRA request must stick to requesting documents.

Guideline 2: Provide a reasonable timeframe. Public agencies are permitted to impose special service charges where a request requires an “extraordinary” amount of time to fulfill. Requestors must be mindful of how many documents will be responsive to the request and keep the timeframe relatively narrow.

Guideline 3: Seek identifiable records. A valid OPRA request seeks identifiable documents. A request that seeks “any and all records relating to the town’s animal control services” is overbroad because it leaves the custodian not knowing what the requestor wants. Instead, requestors must identify specific, such as “I seek the following records relating to the town’s animal control services: shared services agreements for 2018, the health inspection report for the animal shelter for 2018, and all settlement agreements involving the animal shelter for 2018-2019.”

Tip: There are several ways to learn about what types of records might exist:

  1. Look for statutes, regulations and ordinances on the topic. Many government operations must comply with specific provisions of law. Animal control, for example, is highly-regulated and there are state statutes and regulations that require animal shelters to maintain certain paperwork. Looking at the statutes and regulations will help identify some records that might exist.
  2. Look at records retention schedules. All agencies must comply with the State’s records retention laws. Although the records retention schedules do not list every record that must be maintained, they provide some information regarding the types of documents an agency might possess.
  3. Request agency policies. An agency’s written policies, standard operating procedures, or operating handbooks might provide information regarding the types of written reports employees are required to generate or the types of records the agency must keep.
  4. Ask the agency. Believe it or not, many government employees will happily help a requestor identify what record exists if they know what type of information the requestor is seeking.

Guideline 4State the preferred format and method of delivery. A request should indicate if the requestor wants the records to be sent to them via email for free or if they want to receive hard copies, which cost 5 cents per page. The request should indicate the preferred format, such as an Excel file or a PDF. Stating these preferences up front in the OPRA request avoids confusion.

Following these general guidelines will help requestors overcome the first hurdle and send the records custodian on the hunt for responsive government records.

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 For more information about this blog post or any other OPRA question, please contact CJ Griffin at cgriffin@pashmanstein.com.

 

NJ Supreme Court grants certification in OPRA case regarding identity of State Trooper who engaged in “racially offensive” behavior

The New Jersey Supreme Court has granted an OPRA requestor’s Petition for Certification and agreed to hear an appeal in Libertarians for Transparent Government v. New Jersey State Police.

The question the Court certified is:

“Does section ten of the Open Public Records Act, N.J.S.A. 47:1A-10, require disclosure of the name of a state trooper listed in the Office of Professional Standard’s annual report to the Legislature as having been terminated for misconduct?”

For background, N.J.S.A. 47:1A-10 states that personnel records are generally exempt under OPRA, but provides three exceptions to the exemption. At issue in this case is the first exception, which states that:

an individual’s name, title, position, salary, payroll record, length of service, date of separation and the reason therefor, and the amount and type of any pension received shall be a government record”

Each year, the Office of Professional Standards of the New Jersey State Police issues a public report detailing major discipline that is imposed upon State Troopers.  The 2015 report disclosed the following:

Member pled guilty to acting in an unofficial capacity to the discredit of the Division while off-duty by having questionable associations, engaging in racially offensive behavior and publicly discussing police patrol procedures. The member was required to forfeit all accrued time and separate from employment with the Division.

Upon reviewing that report, the requestor filed an OPRA request asking for the Trooper’s name, title, date of separation and the reason therefor, pursuant to N.J.S.A. 47:1A-10. The State Police denied the request, arguing that it was exempt pursuant to N.J.S.A. 47:1A-10 and the Attorney General’s Internal Affairs Policies & Procedures.

Pashman Stein Walder Hayden partner CJ Griffin sued on behalf of the requestor and argued that “date of separation and the reason therefor” meant that the public is entitled to know the real reason a particular employee separated from employment. In this case, the State Police gave the reason, but would not provide the name or date of separation, frustrating the statute’s purpose. Clearly, the public has a significant interest in knowing the identity of a Trooper who engaged in “racially offensive behavior.” Moreover, the the phrase “required to . . . separate from employment” makes it unclear whether the Trooper was fired or whether he or she was permitted to retire in good standing and move on to another law enforcement position.

Griffin argued that disclosure of the Trooper’s name was required pursuant to the New Jersey Supreme Court’s decision in South Jersey Publishing Co. v. New Jersey Expressway Authority, 124 N.J. 478 (1991), a unanimous opinion written by retired Supreme Court Justice Gary S. Stein. In that case, it was widely rumored that the agency’s executive director was under scrutiny for misusing government credit cards.  The agency met in executive session and discussed its investigation into the matter, then worked out an agreement by which the executive director would “resign in good standing” and receive payment of his salary and fringe benefits for nearly a year after his “resignation.” OPRA did not exist at the time, but Executive Order No. 11 (EO 11) contained language essentially identical to N.J.S.A. 47:1A-10 and required disclosure of an employee’s “date of separation from government service and the reason therefor.”  Applying that provision of EO 11, the Court found it was insufficient for the agency to simply tell the public that there was a “resignation” or “voluntary separation,” but rather that it must disclose “the results of the [agency’s] investigation.”  The Court recognized that disclosure of such information was necessary so that the public could intelligently make an evaluation of whether the agency acted reasonably in permitting the executive director to resign in good standing with several months of salary and benefits.

Unfortunately, in this case, the trial court and Appellate Division both affirmed the State Police’s denial of access. Neither court addressed the New Jersey Supreme Court’s decision in South Jersey Publishing. The Supreme Court will now hear the requestor’s appeal.

The successful Petition for Certification can be found here. Amicus curiae briefs are due on December 26, 2019.

Newark Releases Its Amazon HQ2 Proposal

We previously blogged about an OPRA lawsuit we filed on behalf of an activist seeking access to Newark’s Amazon HQ2 proposal. We are happy to announce that Newark has now released its proposal to our client.

Newark’s proposal is titled, “Yes, Newark.” As evidenced by the privilege log it attached to the proposal, Newark redacted approximately 6 pages from its 200+ page proposal. These pages contained the financial incentives that Newark is offering to Amazon. All other information has been disclosed. We consider this a significant transparency victory.

“I strongly believe in open government. The people of New Jersey, especially Newark residents, deserve to know what their government is doing,” said Plaintiff Steven Wronko, a transparency advocate.

“Other finalist cities put their proposals online as part of their PR campaigns to win Amazon over. The citizens of those other finalist cities got to be part of the process and see how their cities were being promoted. That builds pride and buy-in from residents. The people of Newark were completely excluded, but we are happy that they can now be part of the process,” said CJ Griffin, who represented Mr. Wronko.

Among other things, the proposal highlights Newark’s diversity, technology infrastructure, and transportation systems. It includes more than 50 pages of letters of recommendations and details the proposed locations within the city for the headquarters:Locations

 

The full proposal may be downloaded here:

Proposal Part 1
Proposal Part 2
Proposal Part 3

Please contact CJ Griffin at cgriffin@pashmanstein.com or 201.270.4930 for further information.

Agencies May Charge Special Service Charges, But Only In Rare Cases

One question we frequently receive is whether an agency can charge a requestor an hourly rate to respond to an OPRA request.   The answer is yes, but only in specific circumstances where a requestor seeks an extraordinarily large volume of records.

N.J.S.A. 47:1A-5(c) provides that:

Whenever the nature, format, manner of collation, or volume of a government record embodied in the form of printed matter to be inspected, examined, or copied pursuant to this section is such that the record cannot be reproduced by ordinary document copying equipment in ordinary business size or involves an extraordinary expenditure of time and effort to accommodate the request, the public agency may charge, in addition to the actual cost of duplicating the record, a special service charge that shall be reasonable and shall be based upon the actual direct cost of providing the copy or copies

Our courts and the Government Records Council consider several factors in determining what constitutes an “extraordinary expenditure of time and effort.”  Specifically, they look at:

  • The volume of government records involved
  • The period of time over which the records were received by the governmental unit
  • Whether some or all of the records sought are archived
  • The amount of time required for a government employee to locate, retrieve and assemble the documents for inspection or copying, and then return them to their original storage location
  • Whether redaction is required
  • The size of the agency and number of employees available to accommodate document requests
  • The availability of information technology and copying capabilities

In other words, what may be “extraordinary” to one very small agency might be routine to larger agencies.

There are only three published judicial opinions on the issue of special service charges.  The Supreme Court permitted a special service charge where millions of microfilmed land records needed to be redacted by an outside vendor. See Burnett v. County of Bergen, 198 N.J. 408 (2008) (permitting the agency to pass along the actual cost to the requestor). The Appellate Division permitted a special service charge where deputy attorney generals spent over 55 hours reviewing and redacting 15,000 emails. Fisher v. Division of Law, 400 N.J. Super. 61, 65 (App. Div. 2008).  Finally, the Law Division permitted a special service charge where the requestor sought six-and-a-half years of legal invoices by four different law firms, which totaled thousands of redacted pages. See Courier Post v. Lenape Reg’l High Sch., 360 N.J. Super. 191, 199 (Law Div. 2002).

Generally, however, most special service decisions reside with the GRC.  Though they are not precedential in court, the decisions are instructive.  Recently, in Rozzi v. Lacey Twp. Bd. of Educ., GRC Complaint No. 2015-224 (Jan. 31, 2007), the GRC ruled that a school board could not charge a special service charge for a request where it took the agency four hours to retrieve 37 pages of records from storage. Even though the custodian certified that the requested checks were difficult to locate in numerous boxes in the agency’s storage site, the GRC held that “given the amount of time expended, just over half of a working date, in tandem with the number of responsive records (37 pages) that were not redacted, and the resources available to the school district [(a district with 3,000 students and a $60 million budget)], the evidence of record does not support that the special service charge was warranted or reasonable due to an ‘extraordinary amount of time and effort.’”

As a general rule, most GRC decisions have found no special service charge was warranted where a request took less than ten to twenty hours to fulfill, but response times above ten hours may invoke a special service charge for small agencies. See Diamond v. Twp. of Old Bridge, GRC Complaint No. 2003-15 (Feb. 18, 2014) (holding 4 hours of time did not justify special service charge); Carter v. Franklin Fire District No. 1, GRC Complaint No. 2013-281/2013-282/2013-283 (Oct. 28, 2014) (holding no special service charge warranted for nearly roughly 8 hours of time to search for emails); Verry v. Borough of South Bound Brook, GRC Complaint No. 2010-105/2010-106. Compare Loder v. County of Passaic, GRC Complaint No. 2005-161 (Feb. 8, 2016) (permitting special service charge where it took 32 hours to review thousands of pages); Vessio v. Twp. of Barnegat, GRC Complaint No. 2006-70 (April 25, 2007)(permitting special service charge where request took 14 hours of review in small agency); Renna v. County of Union, GRC Complaint No.: 2004-134 (April 11, 2006) (permitting service charge for nearly 40 hours of time to compile records.).

Often, agencies hold the records “hostage” unless the requestor first pays the fee.  Luckily, our courts have held that paying the fee in order to gain access to the records does not mean that a requestor forfeits the right to challenge the fee in court and get a refund.

For more information about this blog post or any other OPRA question, please contact cgriffin@pashmanstein.com.