Last week, NJFOG announced that it had sent a letter to the Government Records Council (GRC) requesting that the GRC review an OPRA response from the City of Bayonne granting itself an extension of time to fill a request without providing a specific reason or response date. NJFOG asked the GRC to advise the city that such responses are not acceptable and to educate others through GRC publications and training opportunities.
We received an email reply from Frank Caruso of the GRC on December 18, 2015. His letter is posted below. In short, he states that the GRC does not engage in pre-complaint intervention because it lacks enforcement authority without a Council order. He also provides examples of GRC materials that he feels adequately address the issue in question.
Thus, a requestor has little option other than to file a complaint with the GRC or in Superior Court or just wait for a custodian to provide the records. The eventual provision of the records does not by itself put a public agency in compliance with OPRA, however, because the Act stipulates not only that records be provided, but that they be provided timely.
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December 18, 2015
Mr. Luers,
As always, thank you for contacting the NJ Government Records Council (“GRC”). The information provided by the GRC is guidance and does not constitute legal advice or a final decision of the GRC regarding whether a particular record is exempt from disclosure or not since the provisions of the Open Public Records Act (“OPRA”) are applied to the specific facts of the request and/or complaint. Specifically, the GRC adjudicates denial of access complaints filed against state and local government records custodians.
Generally, OPRA provides that “… government records shall be readily accessible for inspection, copying, or examination …. with certain exceptions …” N.J.S.A. 47:1A-1. Additionally, OPRA defines a government record as a record “made, maintained or kept on file … or that has been received in the course of … official business …” N.J.S.A. 47:1A-1.1. Also, OPRA requires a custodian to grant access, deny access, request an extension of the statutory response time, or seek clarification of the request as soon as possible but no later than seven (7) business days from receipt of the request. N.J.S.A. 47:1A-5(i). OPRA further requires that custodians prove and inform requestors of the lawful basis for any denial of government records. N.J.S.A. 47:1A-6.
The GRC has reviewed your letter (attached) and is providing the following response.
For a basic background on extensions, OPRA requires a custodian to respond in writing within the statutorily mandated time frame stating that an extension until a date certain is necessary. See Werner v. NJ Civil Service Commission, GRC Complaint No. 2011-151 (December 2012). Historically, the Council has previously ruled that so long as a custodian responds in writing and provides a date certain on which he/she will respond, the extension was proper. Criscione v. Town of Guttenberg (Hudson), GRC Complaint No. 2010-68 (November 2010); Rivera v. City of Plainfield Police Dep’t (Union), GRC Complaint No. 2009-317 (May 2011). The GRC can definitively state that no time limit on extensions is included in the plain language of OPRA: a custodian must simply identify a date certain on which he/she will respond. N.J.S.A. 47:1A-5(i).
However, in determining complaints regarding disputed extensions of time, the GRC recently decided on the reasonableness of multiple extensions. Ciccarone v. v. NJ Dep’t of Treasury, GRC Complaint No. 2013-280 (Interim Order dated July 29, 2014)(http://www.state.nj.us/grc/decisions/pdf/2013-280.pdf). Please note that any dispute over extensions will likely be reviewed on a case by case basis because OPRA does not include a limitation on requesting extensions. See also Christian v. City of Newark (Essex), GRC Complaint No. 2015-11 (Interim Order dated December 15, 2015)(http://www.state.nj.us/grc/decisions/pdf/2015-11.pdf).
Regarding your request to have the GRC “counsel” Bayonne on proper responses, please be advised that the GRC cannot provide any type of legal advice to agencies or requestors. The GRC’s inquiry forum is limited to guidance based on past GRC and court case law. Additionally, the GRC does not engage in pre-complaint intervention since it does not have enforcement authority unless the Council issues an official Order, which occurs only in response to a Denial of Access Complaint. The City of Bayonne can certainly contact the GRC on an inquiry basis to seek guidance on appropriate responses.
Regarding your request to integrate extensions into GRC publications/training sessions, please note that the GRC’s “OPRA Alert” Volume 1 (July 2008) contains language similar to that memorialized in the “Handbook for Records Custodians” Fifth Edition (January 2011)(“Handbook”). See http://www.state.nj.us/grc/home/rules/pdf/OPRA%20Alert,%20Vol%201%20(July%202008).pdf. Moreover, the GRC can confirm that it already addresses appropriate methods of response at trainings. As an example, slide No. 17 of the Council’s “OPRA Presentation for Law Enforcement Agencies” also contains language similar to that memorialized in the Handbook. See http://www.state.nj.us/grc/meetings/present/Outreach%202015%20-%20Law%20Enforcement%20(January%202015).pdf. This information is disseminated at all training sessions conducted by the GRC (notwithstanding any additional questions on the topic that might be asked by participants).
As you know, if Mr. Paff believes he has been unlawfully denied access to government records, you may file an action in Superior Court and pay the court filing fee or file a denial of access complaint with our agency (the Government Records Council). Please note that filing in court may result in your complaint being resolved more quickly than filing with the GRC. Additionally, the court can assess your common law right of access whereas the GRC cannot. Should you choose to file a complaint in Superior Court, you must contact the Court Clerk for the county in which you plan to file. Should you choose to file a complaint with the GRC, you must download a Denial of Access Complaint form from our website (http://www.nj.gov/grc/register/), fill it out and send it to our agency.
All Denial of Access Complaints must be submitted to the following:
Government Records Council
101 South Broad Street
PO Box 819
Trenton NJ 08625-0819
or
(609) 633-6337 Fax
or
[email protected]
Sincerely,
Frank F. Caruso
Government Records Council
Communications Specialist/Resource Manager
Tel: (609) 292-6830 | Fax: (609) 633-6337
http://www.state.nj.us/grc/