Thursday, May 21, 2009

Custodians can choose transmission methods for OPRA requests

UPDATE 10/21/09:  The Supreme Court declined to hear my appeal of the Appellate Division's decision.

In a published decision released today, the Appellate Division held that Section 5(g) of OPRA, which states:

"[a] request for access to a government record shall be in writing and hand-delivered, mailed, transmitted electronically, or otherwise conveyed to the appropriate custodian,"

does NOT require a records custodian to accept requests transmitted by every method mentioned in the statute. Rather, custodians may adopt policies that specify which of the transmission methods are acceptable. Thus, a custodian can adopt a policy saying "I accept OPRA requests only by fax" or "I accept OPRA requests only when they are mailed to me."

The court went on to say that a custodian's transmission policy must be "reasonable" and not "impose an unreasonable obstacle to the transmission of a request for a governmental record, such as, for example, by requiring any OPRA request to be hand delivered."

The decision, which was authored by Judge Stephen Skillman, is online here. (Paff v. City of East Orange, Appellate Docket No. A-4280-07T2)

I think that it's probable that custodians, after reading this decision, will adopt policies that specify regular mail and personal delivery as being the only acceptable methods of submitting OPRA requests. This will add at least one business day--and perhaps more--to the time that a requestor needs to wait in order to have the request fulfilled.

Also, fax transmissions provide the requestor with confirmation showing the date and time that the transmission was received. Using mail will leave the requestor wondering whether and when the request was received by the custodian, unless the requestor is willing to spend substantially more for certified mail service or proof of delivery. Thus it will be more difficult for requestors who mail their requests to judge when OPRA's seven business day response period expires.

Finally, requestors who wish to submit requests to custodians who do not post their OPRA request forms or transmission policies on the Internet will have difficulty knowing which transmission methods are acceptable. For example, if they fax a request without first telephoning the custodian's office to learn its transmission policies, they take the risk of finding out several days later that the custodian has adopted a policy requiring requests to be mailed.

More troublesome will be those custodians who do not consider themselves obligated to inform a requestor that his or her request is being rejected for having been submitted by way of a disallowed transmission method. Those requestors will not know whether to interpret the custodian's non-response as being a denial of the request or a rejection of the request because of the requestor's failure to adhere to an unannounced transmission policies.

John Paff
Somerset, New Jersey

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