Tag Archives: opra denied

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.

close-up-photography-of-crumpled-paper-963048

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

 

“The Legal Implications of Governmental Social Media Use”

Pashman Stein Walder Hayden partner CJ Griffin has published an article in the April 2019 issue of New Jersey Lawyer magazine, titled “The Legal Implications of Governmental Social Media Use.” A full copy of the article can be viewed here:

You Only Have 45 Days to Sue for an OPRA Violation

Perhaps the most important thing to remember about OPRA is that there is a very, very short statute of limitations period. This means that if you receive a denial, you need to act very quickly or you may lose your rights to gain access to the record you seek.

What do you do if you receive a denial from an agency or if the agency unlawfully redacts information from government records?

The best course of action is to immediately speak to an attorney, who can work with you to gain access to the records. This frequently requires a lawsuit filed in Superior Court.  Again, the most important thing to remember is that your action must be filed within the statute of limitations, which is only 45 calendar days. The process for filing in Superior Court is as follows:

  • You will sign a retainer agreement with an attorney, who will likely agree to represent you on a fee-shifting basis (meaning, there will be no charge to you–the agency will pay the fees if and when you prevail)
  • A Verified Complaint and Order to Show Cause is filed. These will be drafted by the requestor’s attorney, though the requestor must sign the complaint to verify it is accurate.
  • The judge will review and sign the order, which sets for a briefing schedule and a hearing date.
  • The pleadings are then served upon the public agency and they will submit an opposition brief. Sometimes, an agency may opt to release the records and settle the attorney fee amount rather than proceed with the litigation.
  • The requestor’s attorney has an opportunity to file a reply brief.
  • A hearing is held, wherein the judge will hear arguments from both sides. For simple cases, the judge will usually enter a ruling that day. More complex cases may require a little more time for an opinion to issue. The requestor need not be present for the hearing.
  • If the requestor is declared a prevailing party, the court will order the agency to pay the requestor’s attorney fees.

Again, the most important thing to remember is that there is a very short timeline for filing the initial Verified Complaint – 45 days from the date your request was denied.

For more information about this blog post and challenging a denial of access, please contact cgriffin@pashmanstein.com.

Sunshine Week: Jennifer A. Borg, Esq.

We close Sunshine Week by featuring Jennifer A. Borg, Esq.

Ms. Borg is General Counsel and Vice President of North Jersey Media Group, publisher of The Record.  She is a recognized authority in First Amendment and open governance matters, particularly as they affect newspapers, and has recently served as Chair of the New Jersey Press Association.  She also has litigated numerous OPRA lawsuits with successful results.  Ms. Borg was featured in the ABA Journal (July 2014) for her expertise in OPRA and public records access issues.  Pashman Stein regularly serves as co-counsel with North Jersey Media Group on complex OPRA cases, several of which are presently on appeal before the Appellate Division.

Interview with Jennifer A. Borg, Esq:

  1. How many OPRA requests do North Jersey Media Group’s reporters submit each month? How many result in violations and/or litigation?

I have no way of knowing exactly how many requests are filed for any given time-period.  North Jersey Media Group has over 100 reporters and very few requests actually make it to my desk.  Usually, I am only contacted when a request is denied, although I do encourage reporters to allow me to help them draft the request.  Requests that are too broad or unclear are often denied so I like to work with reporters to make sure the  request is valid and specific.

I would estimate that we file 6-12 OPRA lawsuits a year.

  1. What are the most common OPRA violations that you see?

The most common violations are not providing a privilege log or Vaughn index with the denial.  Too often, an agency will just deny a request outright without listing the specific documents being withheld or explaining the reasons why each document is being withheld.

  1. Do you think OPRA and OPMA are working well?

I think OPRA is an improvement over the former Right to Know Law.  But, I agree with Senator Weinberg that amendments are greatly needed.  OPRA has been in effect for over a dozen years so we have had time to evaluate where it can be strengthened.  I have less experience with the Open Public Meetings Act (“OPMA”), but I find that it too is missing important language clarifying its terms.  For instance, agencies need to be more specific when giving reasons for going into closed session. “Personnel” and “litigation” do not suffice.    Because OPMA does not provide for attorneys’ fees to the prevailing party, many people don’t take significant violations to court. It’s simply too expensive for most people to pay a lawyer to litigate these claims.

  1. If you could persuade the Legislature to take steps to improve government transparency, what would be your top suggestions?

OPMA needs to provide for attorneys’ fees so that members of the public have lawyers willing to take their cases to court.  Without attorneys’ fees, the practical effect is that agencies can violate the statute without consequence.  There are many changes I would like to see made to OPRA.  For starters, I think the statute should make it clear that courts, and not just the GRC, can impose penalties against those who knowingly and willfully violate the statute and that requestors be allowed limited discovery to prove that an official engaged in such conduct.   It makes no sense that a public official can flagrantly violate the law and not be held accountable for his or her misconduct.  Custodians are required to perform an adequate search for records but too often judges do not allow a requestor limited discovery into whether the custodian’s search was proper and adequate.     Without looking under the hood, how can we hold officials accountable when they knowingly violate the law?   It is crucial for the public to be able to verify that a custodian or other official properly performed his or her job duties when responding to an OPRA request.

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

So You Were Denied Access – What’s Next?

Per OPRA, public agencies must respond to a request for records within seven business days. But what do you do if the government fails to respond (a deemed denial) or unlawfully refuses to grant access to the records?

The best course of action is to immediately speak to an attorney, who can work with you to gain access to the records. This frequently requires a lawsuit filed in Superior Court.  The most important thing to remember is that your action must be filed within the statute of limitations, which is 45 days. The process for filing in Superior Court is as follows:

  • A Verified Complaint and Order to Show Cause is filed
  • The judge will review and sign the Order to Show Cause. It sets a briefing schedule and a hearing date.
  • The pleadings are then served upon the defendants (public agency and the custodian of records )
  • The defendants will submit their answer and opposition
  • Plaintiff has an opportunity to file a reply brief
  • A hearing is held, wherein the judge will hear arguments from both sides. For simple cases, the judge will usually enter a ruling that day. More complex cases may require a little more time for an opinion to issue. In rare circumstances, the court may allow for discovery (interrogatories, depositions) to occur.
  • If the plaintiff is declared a prevailing party, it can file a fee application asking the Court to order the defendants to pay plaintiff’s counsel fees and costs of suit.

Again, the most important thing to remember is that there is a very short timeline for filing the initial Verified Complaint – 45 days from the date your request was denied (or, if the agency fails to respond, the date the response was due).

For more information about this blog post, please contact cgriffin@pashmanstein.com.