As we have recently written, agencies currently do not have to comply with OPRA’s 7-day deadline due to COVID-19. There is no such deadline relaxation for requestors to file OPRA lawsuits, however. Although there were prior orders by the Supreme Court that tolled such deadlines in March and April, those orders have now expired. Therefore, a person who receives a denial from a public agency must act very quickly. An OPRA suit must be filed within 45 calendar days from the date of the denial.
What should you do if an agency denies your request or otherwise violates OPRA?
The best course of action is to immediately speak to an OPRA attorney, who can review your denial and file a lawsuit on your behalf in Superior Court. Importantly, OPRA contains a fee-shifting provision that requires a public agency to pay a requestor’s legal fees when they prevail in court. This allows attorneys to represent you on a contingency basis, meaning there is no charge to you. The overwhelming majority of OPRA cases are handled with this fee-arrangement.
Typically, most OPRA lawsuits are resolved in Superior Court within 4-10 weeks either through settlement or a court order. This process is much faster than filing a complaint in the Government Records Council (GRC). Although the GRC is a free process, decisions are often not issued for two to three years. Therefore, we always recommend a Superior Court lawsuit.
Again, a requestor only has 45 calendar days to file an OPRA lawsuit. Given that it takes an attorney time to draft the lawsuit, it is best to act immediately after receiving a denial.
For more information about this blog post and challenging a denial of access, please contact CJ Griffin at firstname.lastname@example.org or 201-488-8200.
As we previously wrote on this blog, the Legislature amended OPRA in mid-March 2020 in response to the COVID-19 pandemic. Now and in the future, during a public health emergency, state of emergency, or state of local disaster emergency, a public agency no longer needs to respond to an OPRA request within seven business days. Instead, an agency must only make “a reasonable effort, as the circumstances permit, to respond to a request for access to a government record within seven business days or as soon as possible thereafter.” N.J.S.A. 47:1A-5(i)(2).
Journalists Expose Transparency Issues
The COVID-19 pandemic has become a roadblock for the news media and those who seek information from the government. Reporters from NorthJersey.com, the Star Ledger, and the Associated Press collaborated and published three news stories today reporting about the serious lack of transparency in New Jersey during COVID-19. The articles discuss not only the State’s over-use of a confidentiality provision in the Emergency Health Powers Act to keep reporters from gaining important information about the State’s response to COVID-19, but also the fact that some counties and municipalities have essentially shut down their OPRA responses altogether. Other agencies are taking lengthy extensions, making it hard for reporters to report about local news. As NorthJersey.com wrote in its article:
Response to New Jersey’s amended law has been mixed, and some places continue to provide records in seven days. Others, like Jersey City, tell people not to expect a response at all.
“Due to the active state of emergency in relation to COVID-19, the City of Jersey City will not be able to respond to OPRA requests within seven (7) business days,” the city’s website says. “The City appreciates your patience during this difficult time.”
. . .
Dozens of government bodies from Hawthorne to Wildwood Crest have sought extensions and referenced or cited the pandemic as a reason, according to data provided by OPRAmachine, a website that helps residents submit record requests and tracks and analyzes the responses from public officials.
Delays range from a few days to weeks, and often cite closed municipal buildings and lack of staff. The website provides just a snapshot of the response, because most records requests across the state aren’t publicly tracked.
“This is very troublesome and a crisis unto itself,” said Pashman Stein Walder Hayden partner CJ Griffin. “We know from experience that secrecy inevitably leads to corruption, misconduct, waste and abuse. OPRA was enacted to permit the public to keep a watchful eye on government, but right now it can’t perform that function in many municipalities across this state.”
Today’s reporting follows an earlier article by New Brunswick Today, which also expressed concern about the State’s rush to amend OPRA and pointed out that public agencies have a long tradition of violating OPRA’s statutory deadlines in the past:
Advocates for transparency found the altered OPRA law confusing, given that records clerks often respond to requests within the seven business days only to make a request of their own: for an extension for more time to put together a substantive response.
Many government agencies have been known to play games with those who request records, asking for extension after extension, only to come back with a final decision that the request was improper or that the records cannot be released. Still others can’t seem to meet their own self-imposed timelines, and need to be reminded repeatedly about outstanding requests.
Guidance from the GRC
Recently, the Government Records Council took the extraordinary step of issuing a “Special Statement” on the amendment to OPRA, providing guidance on how it will determine whether an agency’s response is reasonable when receives denial of access complaints:
Please note that any dispute over extensions will be reviewed on a case-by-case basis because OPRA does not include a limitation on requesting extensions. However, the GRC’s analysis of this issue has included recognition of “extenuating circumstances.” Those circumstances would include, but not be limited to, retrieval of records that are in storage or archived (especially if at a remote storage facility), conversion of records to another medium to accommodate the requestor, emergency closure of the public agency, or the public agency’s need to reallocate resources to a higher priority due to force majeure.
In closing, the GRC stresses that custodians within agencies operating under normal business hours during an emergency, even if closed to the public or working off-site, are obligated to respond to OPRA requests upon receipt in due course to the extent possible. Additionally, custodians should proactively advise the public (by website notification and/or other methods) if the method of transmission for OPRA requests has changed or been limited due to a state of emergency. Similarly, members of the public wishing to submit OPRA requests should contact the applicable public agency for updates on any limitations or disruptions affecting the OPRA process during a state of emergency.
Courts are, of course, free to disregard the GRC’s guidance and they have done so before. Nonetheless, the GRC’s Special Statement makes it clear that agencies that are open for business, even if working remotely, cannot simply ignore OPRA requests and must act reasonably to try to respond to them. It may be reasonable to request a extension for records that exist only in paper copy or that are locked away in storage somewhere, but some agencies are taking lengthy extensions even for electronic records that are easily retrievable.
For information about this article or public records issues, contact CJ Griffin at email@example.com or 201-488-8200.
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:
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.
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.
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.
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 4: State 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.
Although smaller newspapers usually do not have in-house counsel to litigate public records lawsuits, in New Jersey OPRA provides a fee-shifting mechanism to make it possible for to find competent counsel who will litigate denials on a contingency basis. Newspapers, journalists, and other media entities can take advantage of this fee-shifting provision to challenge denials of access without incurring any costs at all. As the Times notes, doing so greatly benefits the public and is an important part of the journalistic process.
According to N.J.S.A. 47:1A-6, a records requestor who prevails in any proceeding shall be entitled to an award of reasonable attorneys’ fees. We have written about OPRA’s fee-shifting provision before, noting that without the fee-shift most requestors would not have the funds to challenge denials of access. As a result, the state would be far less transparent.
On August 14, 2019, the United States Court of Appeals for the Third Circuit issued an important published opinion relating to OPRA’s mandatory fee-shifting provision.
The case, titled Golden v. New Jersey Institute for Technology, involved OPRA requests filed by Pulitzer Prize-winning journalist Daniel Golden, who was seeking records from NJIT to use as research for his book, “Spy Schools: How the CIA, FBI, and Foreign Intelligence Secretly Exploit America’s Universities.” Many of the responsive records in NJIT’s files originated from the FBI and were purportedly subject to prohibitions on public dissemination.
The records custodian reached out to the FBI to determine how to respond to the request and the FBI directed NJIT to withhold most of the records “[i]n no uncertain terms.” NJIT thus denied the OPRA requests by claiming the records were exempt. Golden sued.
After the lawsuit was filed and removed to federal court, the FBI reviewed the previously withheld records and NJIT produced thousands of pages of documents that it had formerly deemed to be exempt. Golden moved for attorney’s fees, arguing that he was a prevailing party because his lawsuit was the “catalyst” for NJIT’s release of records that were not exempt. The District Court denied the fee motion and was “persuaded by NJIT’s position that it had acted reasonably in following the FBI’s direction.”
The Third Circuit disagreed and all but stated, “If a public agency permits a third party–even if it’s the FBI–to dictate its OPRA response, then that public agency will be on the hook for attorneys’ fees if it turns out that the denial of access was unlawful.” The court made it clear that it is the custodian who has the obligation “to parse the requested records, decide whether exemptions appl[y], and withhold documents pursuant to those exemptions” and that obligation cannot be outsourced to a third party outside the agency.
Importantly, the Third Circuit flatly rejected the argument that OPRA’s fee-shifting provision contains any “reasonableness” requirement. State courts have reached the same conclusion based on the plain language of OPRA, but public agencies still make this argument to trial courts.
This decision is important because there are often times where issues of first impression are litigated and the agency was operating under good faith when it denied a request, but nonetheless was wrong as a matter of law. In such situations, the OPRA requestor is still entitled to an award of attorneys’ fees. Indeed, OPRA contains a mandatory fee-shifting provision so that requestors can find competent counsel to litigate those types of cases.
“There’s hundreds of millions or billions of dollars, of tax dollars, at stake,” said CJ Griffin, a partner at Pashman Stein Walder Hayden, who argued the case. “That’s taxpayer money. When you give tax breaks, that impacts other people, so the public has a right to know.”