Tuesday, July 7, 2009

Dealing with Custodians who "cannot locate" records.

Sometimes I get questions that I think might be of general interest. Here's one such question and my answer to it.

Question:

I asked for a record from my local school board and the custodian informed me in writing that the board "cannot locate this document at this time." Is this allowable under the Open Public Records Act (OPRA)? How long am I supposed to wait for the custodian to either find the record or determine that it cannot be found?

Answer:

No, the custodian's response is not sufficient.

Whenever a custodian receives a records request, OPRA requires him or her to provide the requestor with a written response within seven business days. Failure to do so is considered a "deemed" denial. Further, a custodian’s response must do one of four things: a) grant access, b) deny access, c) seek clarification or d) request an extension of time within which to answer. (see Jacqueline Andrews v. Township of Irvington, Government Records Council Case No. 2009-39, Executive Director's May 20, 2009 Findings and Recommendations, p. 4.)

Of the four types of responses allowed, a response that a custodian "cannot locate this document at this time" comes closest to a request for an extension of time. But the Government Records Council has held that when requesting an extension of time to respond to an OPRA request, a custodian must specify the length of time he or she is requesting. A response that "fail[s] to provide an anticipated deadline date upon which the requested records will be provided" "[is] inadequate pursuant to N.J.S.A. 47:1A-5.i." (See John Paff v. Township of Springfield, Government Records Council Case No. 2008-77 ­ Executive Director's June 16, 2009 Findings and Recommendations, pp. 11-12.)

In sum, OPRA does not permit custodians to simply respond that they "cannot locate this document at this time." If a custodian needs extra time to locate a record, he or she is required to establish a specific deadline within which access to a record will be granted or denied. (Note: the requestor doesn't have to accept the custodian's proposed deadline. N.J.S.A. 47:1A-5(g) states that "If a request for access to a government record would substantially disrupt agency operations, the custodian may deny access to the record after attempting to reach a reasonable solution with the requestor that accommodates the interests of the requestor and the agency.")

I suggest that you present the above argument to the custodian and consider filing a denial of access complaint if you don't receive a proper, timely response.

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