When it comes to OPRA requests, local governments around the state are surprisingly similar. We all encounter the same roadblocks and delay tactics. As a result, we can utilize the same defenses.
With that in mind, we wish to share with our readers a recent exchange that activist John Paff had with a records custodian from Cumberland County.
Paff explains, “The records I seek are litigation records that are within the physical custody of the County’s outside lawyer, and the custodian seems to believe that this, without more, justifies an indefinite extension of the seven business day period. As you can see, I have a different idea. My response to this custodian may be of value to others similarly situated.”
Below, see the custodian’s initial response to Paff’s request followed by Paff’s reply to the custodian. We’ve included only the portion of Paff’s reply related to the issues above. Also, we haven’t provided a copy of Paff’s OPRA request because you don’t need it to follow the string.
On Wed, Jul 8, 2015 at 10:12 AM:
I am in receipt of your OPRA request. Please see attached for the Civil complaint in the case of Lynn Wehling v. Cumberland County.
I am pending a response from outside counsel that is working this case for any order to pay counsel fees and/or and certification and brief that may be accompanied and supported Plaintiff’s motion for counsel fees. I cannot guarantee that the outside counsel will respond within seven days as per requirements of responding to an OPRA request. I request an extension to completely fulfill this request [due] to…the reason named above.
Regarding the settlement or other agreement that resolved the matter, no such document exists at this time.
Thank you and I will contact you with further information as I receive correspondence from the outside counsel.
Blake V. Hetherington
County of Cumberland
Interim Custodian of Records
On Wed, Jul 8, 2015 at 12:55 PM
Dear Mr. Hetherington:
Thank you for your e-mail. I have two issues with it.
1. I have absolutely no problem agreeing to extensions for specific reasons. For example, if you told me, “Outside counsel, who has some of the requested documents, is on vacation until July 16th so I’ll need an extension until July 20th,” I’d agree to the extension.
Your request for an extension, however, is different in two respects. First, it contains no specific extended deadline by which a response is due. In that regard, you’re basically telling me, “We’ll get to responding to your request whenever it’s convenient to us.” Second, you state no reason for needing an extension. Rather, you seem to be saying “Well, these outside lawyers are beyond the County’s control so they probably won’t assign a very high priority to Mr. Paff’s request. I better warn Mr. Paff of this possibility and seek an extension for an indefinite period of time.”
The litigation records I requested belong to Cumberland County. If the County decided to entrust the physical custody of those records to outside counsel, that’s the County’s prerogative. But, the County can’t then use that decision as a general excuse to justify extensions of OPRA’s seven business day response period. Rather, the County is obliged to contact outside counsel promptly and endeavor to get the record request fulfilled within the seven business day period. If, after making contact, there is a specific reason why more than seven business days is needed, only then is the County justified in seeking an extension. In sum, I find the nonchalant manner in which you’re treating the seven business day response period offensive and contrary to the legislative policy underpinning OPRA. Accordingly, unless I am informed of a specific reason justifying an extension, your request for one is denied.
Very truly yours,