Thursday, October 15, 2009

The Custodian needs legal advice, but how long am I supposed to wait?

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

QUESTION:

On September 30, 2009, I made an Open Public Records Act (OPRA) request for closed session minutes. The borough clerk responded same day and informed me that my request was forwarded to the borough attorney.  The Clerk said that she had no idea how long it would take for the attorney to get to my request, but that she would let me know as soon as she finds out.  Two weeks have now passed.  When I asked the clerk today (October 14, 2009) about the status of my request, she told me that her hands are tied because the attorney still hadn't informed her of a date by which my request would be handled.  What do I do?

ANSWER:

If I were you, I'd put something like the following in a letter and send it to the borough clerk.
As you know, I submitted a records request on Wednesday, September 30, 2009 and that you immediately referred my request to the municipal attorney.  As you are also aware, more than seven business days have elapsed and I have not yet received either a formal response (i.e. a grant or denial of access) to the requested records or a definite date by which I will such a response.

While it is reasonable for you to seek legal advice on how to appropriately respond to my request, your decision to seek legal advice does not, by itself, constitute a lawful reason for delaying your response beyond the seven business day period prescribed by N.J.S.A. 47:1A-5(i).  See Paff v. Bergen County, GRC Complaint No. 2005-115.

And, while I don't object to the Borough having a reasonable amount of time within which to properly respond to my request, we have not yet established a specific date by which the Borough must respond to my request.  I insist upon a specific due date by which I can expect the Borough's response.

Accordingly, I offer an extension until the close of business on Wednesday, October 21, 2009.  If the Borough believes that formally responding within this time frame "would substantially disrupt" the Borough's operations (see N.J.S.A. 47:1A-5(g)), please contact me before October 21st so that we can attempt to reach a reasonable solution that accommodates both of our interests.  Otherwise, I expect to receive a formal response to my request prior to the the above date and hour.
 
If you don't agree to a further extent ion, and the Clerk doesn't either grant or deny your request by October 21st, then the Clerk has violated OPRA and you can proceed in either the Government Records Council or the Superior Court.

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