How Does the Government Records Council Work?

We are frequently asked about the Government Records Council (“GRC”). The GRC adjudicates complaints regarding the Open Public Records Act. The GRC is not authorized to enforce any other law, or to enforce the common law right of access. A case that is weak under OPRA can be strong under the common law right of access. You should discuss with an attorney the differences between the two.

An individual can represent themselves before the GRC or they can be represented by an attorney. The public agency is almost always represented by an attorney.

Filing a complaint with the GRC is easy an free; its forms are available on its website, and they can be filled out and emailed, faxed or mailed to the GRC for filing. Once a complaint is filed with the GRC, it is assigned a case number and a case manager.

If the person who filed the complaint consented to mediation, then the Records Custodian is asked whether they want to consent to mediation. If both parties consent to mediation, then the case is assigned to one of the GRC’s mediators. A telephone mediation conference will usually be held within 1-3 months; if the matter doesn’t settle by the end of the three months, the matter will usually be referred back to the GRC for formal resolution.

If at least one side does not consent to mediation, or if the matter is referred back from mediation, the GRC will issue a request for a “Statement of Information” (“SOI”) from the Records Custodian. The requests are generally sent out between five and thirty days after a case number is assigned or after the matter comes back from mediation. The Records Custodian is given five business days to complete the “SOI”, although extensions of up to 10-20 days may be sought or granted.

The GRC’s rules do not explicitly permit additional unsolicited filings once the initial Complaint and Statement of Information have been filed. However, the GRC will not reject additional filings by the person who filed the complaint if they provide information about new developments or if they are rebutting new issues raised by the Records Custodian. (Don’t simply repeat what you’ve said before). If you make such a supplemental filing, the Records Custodian will probably respond. Such submissions should be made quickly.

Once the Complaint and SOI have been filed, the GRC will review the case to determine if OPRA has been violated. This can take 12-18 months.

Once that review is complete, several events may happen:

  • If the GRC is satisfied that it has all the facts it needs to make a decision, it will issue an interim or final order at a regularly scheduled meeting of the GRC.
  • If the GRC thinks it needs more information from one or the other parties, it will request additional information.
  • If the GRC thinks the privacy interests of a person are implicated by the documents being requested, the GRC will conduct a balancing test and will ask the parties specific questions to determine their interests in disclosure or non-disclosure.
  • If the GRC does number 2 or number 3, after it receives the info, it will then probably make a decision as discussed in 1 above.

GRC decisions come in three flavors: (1) administrative dispositions; (2) interim decision and orders; and (3) final decision.

An administrative disposition means that the GRC was able to decide the case on a technicality or on consent without issuing a full-blown decision. Examples include: (1) the complainant did not file a proper OPRA request; (2) the complainant alleges a violation of some law other than OPRA; or (3) the case was settled in mediation or the complaint was withdrawn.

An interim decision and order is when the GRC requires the Records Custodian to do something, such as (1) produce copies of documents to the Complainant; or (2) produce copies of documents to the GRC for in camera review. In general, an interim decision and order is a “win” for the Complainant, especially if the GRC orders disclosure of documents to the complainant.

If an interim decision and order is issued, the GRC will usually require compliance within 5 business days, which can be extended another 5-10 business days.

In cases where the GRC performs an in camera review, the GRC will then determine what portions of the documents, if any, should be disclosed to the complainant. This will be in the form of a future interim decision and order.

In cases where the GRC orders disclosure of records, the GRC will determine whether the records have been disclosed.

In cases where the GRC believes a knowing and willful violation of OPRA may have potentially occurred, the GRC will refer the issue to the Office of Administrative Law (“OAL”) for a hearing. Also, in cases where the complainant is represented by an attorney, the GRC will refer the issue of prevailing party attorneys fees to the OAL. Finally, if there are disputed issues of facts, the GRC will refer the case to the OAL for a fact-finding.

OAL proceedings can take 3-12 months, depending on several factors, including how busy the individual judge is who is assigned to the case and how aggressively the case is managed by the judge. OAL judges issue decisions in 30-60 days.

The OAL judge must make an “initial decision” on any issue referred to him or her by the GRC. Once the OAL judge issues their decision, the GRC has 45 days to accept it, modify it or reject it and replace it with its own decision. The GRC usually accepts the OAL judges’ decisions.

A final decision occurs when all issues within the jurisdiction of the GRC have been resolved.