Monday, May 3, 2010

Lesson learned: Don't refer to outside sources in OPRA requests.

On March 2, 2009, I submitted an OPRA request to the Borough of Lawnside (Camden County) in order to determine whether or not the Lawnside Police Department's Internal Affairs Unit was following the Attorney General's rules and regulations regarding internal affairs functions. The request contained five paragraphs, each defining a type of record that I wanted.

Lawnside promptly acknowledged my request and asked for a 10-day extension, which I agreed to. Then, the Borough stopped communicating with me despite several attempts to get the Borough Clerk to act on my request. Finally, on May 7, 2009--more than two months after my request was made--I filed a complaint against Lawnside with the Government Records Council (GRC). Richard Gutman represented me in the GRC and all the documents from my GRC complaint are on-line here.

After my complaint was filed, Lawnside provided me with records responsive to the first of the five paragraphs in my request and informed me that no records existed that were responsive to the other four paragraphs.

On April 29, 2010, the GRC, in ruling on my complaint, held that the Borough violated OPRA by failing to provide me with the records responsive to the first paragraph of my request until after I had filed a complaint. The GRC ruled that this made me a "prevailing party" who was entitled recover attorney fees from Lawnside.

But, disturbingly, the GRC also held that the second through fifth paragraphs of my request were not proper because they "require the Custodian to perform some type of research in order to identify any records responsive" to the request. (Findings and Recommendations, p. 10.) Since OPRA does not require custodians to conduct research, the GRC held that "the Custodian has not unlawfully denied access to the requested records." (Findings and Recommendations, p. 12.)

An example of one category of records to which I was denied access was:

"Any rule which 'requires an officer or employee to notify the agency if he or she has been charged with an offense, received a motor vehicle summons, or have been involved in a domestic violence incident' as recommended at the bottom of page 11-24 of the Attorney General’s Manual."

I felt (and still feel) that this request clearly identified the record I sought. Basically, I a) informed Lawnside that the New Jersey Attorney General recommended that each local police department adopt a rule requiring their police officers to notify the department if the officers are charged with an offense, receive a traffic ticket or are involved in a domestic violence incident and b) asked for a copy of the rule if it had indeed been adopted. In case there was any confusion, I provided Lawnside with a link to the Attorney General's Manual where the recommendation was made. (That manual is on-line here. )

Although I believe that my request was clear, the GRC ruled that the request required Lawnside's Custodian "to conduct research in said manual to determine which records, if any, are required to be created and maintained by the police department." (Findings and Recommendations, p. 11.)

It appears that my request's reference to an outside source, i.e. the Attorney General's Internal Affairs Policy Manual, is what made it fall into the GRC's impermissible "needs research" category. Apparently, had I simply requested "any rule which requires Lawnside police officers to notify the Lawnside Police Department whenever they are charged with an offense, receive a motor vehicle summons, or are involved in a domestic violence incident," the GRC might have found it to be a proper request.

The GRC's logic in this case is confusing. Suppose I asked Lawnside for "any juvenile curfew ordinance currently in effect." I think that the GRC would find that to be a valid request.

But, suppose my OPRA request instead stated:

"N.J.S.A. 40:48-2.52(b)(1) authorizes every New Jersey municipality 'to enact an ordinance making it unlawful for a juvenile of any age under 18 years within the discretion of the municipality to be on any public street or in a public place between the hours of 10:00 p.m. and 6:00 a.m.' unless certain conditions apply. I would like a copy of any such ordinance currently in effect in Lawnside."

Would the GRC rule that my request, since it referred to curfew ordinance's authorizing legislation, was improper because it required "research"?

I would understand the GRC's position better had I requested, for instance, "any rule that the Lawnside Police adopted based on the recommendation at the bottom of page 11-24 of the Attorney General’s Internal Affairs Policies and Procedures Manual." Clearly, such a request would be onerous because it would require the Borough Clerk to consult the Attorney General's Manual to learn what was recommended on that page.

But, when a request is clear and can be responded to without making reference to an outside source, the fact that the request also refers to an outside source should not invalidate it. In my case, the request contained enough information to allow the Clerk to respond to it without having to consult the Attorney General's manual.

The lesson I've learned is that if I intend to ask the GRC to enforce an OPRA denial, I should refrain from referring to any statute, rule or other document in my request, even if I believe that the reference will clarify my request and make it easier to understand.

Another lesson that could be taken from this experience is to look for future OPRA enforcement in the Superior Court instead of the GRC.

John Paff
Somerset, New Jersey

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