Tuesday, March 2, 2010

Use of an agency's official OPRA request form

Even though Renna v. Union County was decided on May 21, 2009, I still get letters from record custodians around the state "requesting" that I use their agencies' official OPRA forms instead of the form that I generate on my word processor.

While it probably is not the best use of my time, I decided today to thoroughly explain to the Jersey City Clerk's office exactly why I won't complete its official form. For those who are interested, my request form and Jersey City's request form are on-line here and my explanation to the City Clerk's office is set forth below.

March 2, 2010

Sean J. Gallagher, Deputy City Clerk
City of Jersey City - via e-mail

Dear Ms. Gallagher

Thank you very much for your very prompt acknowledgement of my OPRA request.

I note that you sent me Jersey City's official request form and asked that I use it in the future. I decline to do so because the Appellate Division, on page 22 of its decision in Tina Renna v. County of Union, held that we "conclude that the form should be used, but no request for information should be rejected if such form is not used."

There are also other reasons why I prefer to use my own form.

1. Environmental and cost concerns.

I generate my form electronically by use of my word processor's mail merge function. I "print" my request forms as PDF files. If the custodian published his or her e-mail address on the agency's web site, I submit the PDF file by e-mail. If, such as in the case of Jersey City, the custodian does not publish his or her e-mail address on the web site, I transmit the PDF form through my fax software. In either case, I'm able to transmit the form to the custodian electronically without every having to print a piece of paper. This saves paper and toner. Also, on the issue of cost and the environment, please note that my OPRA request form is one page long, while Jersey City's form--with its Part A and B--is four pages long.

2. Forms that are non-compliant, cumbersome and confusing.

Jersey City's OPRA form, like most agencies' forms, doesn't appear to be very well thought out. For example, there is no place on the form for a requestor to put his or her fax number or e-mail address. Also, there is no place for the requestor to indicate whether he or she prefers to view the records in your office or whether he or she prefers to receive copies. Finally, if the requestor wants copies of the requested records, there is no place on your form for the manner of transmission (i.e. regular mail, fax or e-mail) to be expressed.

Also, it is confusing whether or not the requestor is supposed to sign the third page of the form. By signing the form before submitting it, the requestor certifies to three things. First, the requestor certifies that he or she "acknowledges receipt of a copy of this form with the date on which the information is expected to be available and the estimated cost." Second, the requestor certifies that he or she has "not been convicted of any indictable offense." Third, the requestor swears that he or she is "not seeking government records containing personal information pertaining to a victim or victim's family."

Without even getting into the merits of the second and third certification (i.e. perhaps people who have been convicted of indictable offenses should not be dissuaded from asking for meeting minutes, budgets and other records that do not contain victims' names), there is simply no way that anyone could legitimately certify, at the time of submitting a request form, that he or she had already received a copy of the form and been informed of "the date on which the information is expected to be available and the estimated cost."

So, when exactly is a requestor supposed to sign page 3 of the form? The only way I can make sense of it is that the requestor is supposed to submit the form without signature and wait for you to return the form with page 2 completed, which will inform the requestor of the date when the record will be ready and the estimated costs. Presumably, the requestor is then supposed to sign the form and return it to you. Do you agree that this is an unduly complicated process?

Finally, Jersey City's form does not comply with a decision of the Government Records Council. Page 3 of Jersey City's form states that "the term ‘government record’ . . . does not include . . .employee personnel files.” Yet, this form language was struck down by the Council in O’Shea v. West Milford, Complaint No. 2007-237. In O’Shea, the Council found that the form’s blanket statement that all “personnel files” are exempt, without informing the requestor that some “personnel files” were nonexempt, was “misinformation” that could "deter [some requestors] from submitting an OPRA request for certain personnel records." Although the Council made its ruling on May 28, 2008, Jersey City's form--nearly two years later--still contains the same "misinformation."

So, in sum, I decline to complete Jersey City's OPRA request form.

Very truly yours,

John Paff

No comments:

Post a Comment