Friday, January 30, 2009

GRC holds that municipalities can designate multiple custodians

The Open Public Records Act (OPRA) expressly states that "in the case of a municipality,.the municipal clerk" is the designated custodian of government records. N.J.S.A. 47:1A-1.1.

I've always taken this to mean that once an OPRA request was submitted to the municipal clerk, the clerk was responsible for fulfilling and responding to the request even if the records sought were in the possession of the police department, health department or some other municipal agency or department.

Therefore, I was a bit surprised when the Government Records Council (GRC) recently ruled in Paff v. Berkeley Heights, GRC Complaint No. 2007-271, that since the Berkeley Heights Police Department had its own OPRA form and records custodians (see the police department's web site here), that the Berkeley Heights municipal clerk was no longer under an obligation to process my request for records that were allegedly police records. Rather, according to the GRC, all the Berkeley Heights Township Clerk needs to do when she receives a request for police records is to forward the request to the "proper custodian of record or direct the Complainant to the proper custodian of record." The decision Paff v. Berkeley Heights is here.

If this is the case, then any municipality can, conceivably, designate separate custodians for each municipal department who, in turn, would each develop their own department-specific OPRA request form. Then, requestors would be burdened with the tasks of a) determining the custodian to which his or her request should be directed and b) securing a blank copy of that custodian's specific OPRA request form. Also, a requestor who desired two different types of records (e.g. a municipal council resolution and the minutes of a rent levelling board meeting) would have to submit two requests on two different forms.

Since I had never previously seen a GRC decision holding that a municipality can have more than one custodian, I wrote to GRC Case Manager Frank F. Caruso. My letter and Caruso's response is here.

In his response, Caruso correctly stated that the GRC, in the past, has recognized municipal officers other than the clerk as the municipality's custodian for certain categories of records. For example, Caruso cites L.D. v. Bayonne Police Department, GRC Complaint No. 2004-64 as a case where an official from a municipal police department acted as the custodian of police records. In the Bayonne case, and in all of the other cases cited by Caruso, the requestor had originally made his or her request to the police department, was denied and then filed a GRC complaint to challenge the denial.

None of the cases Caruso cites, however, address the propriety of a municipal clerk refusing to process a records request because it asks for a record within a category for which a different municipal officer had been designated custodian. Accordingly, it appears that the GRC has broken new ground in Paff v. Berkeley Heights.

Caruso also claims that having multiple municipal custodians (and multiple municipal request forms) "facilitate[s] public access to the records of those departments [and] make[s] it easier for requestors to seek and obtain government records in an expeditious manner consistent with OPRA." I think that the opposite is true. Having multiple municipal custodians and multiple forms makes the request process more difficult and burdensome for requestors.

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