Wednesday, May 30, 2012

GRC asked to settle two issues

In separate complaints filed in May 2012, I have asked the Government Records Council (GRC) to settle and clarify two Open Public Records Act (OPRA) issues.  Attorney Walter Luers is representing me in both cases.


This case involves a records custodian who produced, in response to an OPRA request, heavily redacted versions of closed (i.e. executive) meeting minutes, but failed to explain the reasons for the redactions in enough detail to allow me to judge whether or not the redactions were justified.  Current case law, Paff v. New Jersey Department of Labor, Board of Review, 379 N.J. Super. 346, 354 (App. Div. 2005) holds that custodians are required to provide detailed reasons that "will enable other parties to assess the applicability of the privilege or protection."  But, that decision doesn't require the custodian to provide those detailed reasons until after a Denial of Access Complaint has been filed.

We argue that it would make a lot more sense to require custodians to provide detailed justifications in their original responses to the request.  Such would enable requestors and their lawyers to better evaluate whether or not to challenge the redactions by filing a complaint with either the Superior Court or GRC.  As it is, requestors who encounter unexplained, heavy redactions do not possess enough information to allow them to make an informed decision as to whether or not a Denial of Access complaint should be filed.


This case involves a records custodian who has adopted a "no electronic submission" policy, disallowing OPRA requests to be filed by either e-mail or fax.  The leading case on this topic is Paff v. City of East Orange, 407 N.J. Super. 221 (App. Div. 2009) which allowed East Orange to refuse to accept requests via fax.  But, in that decision, the Appellate Division held that East Orange's no-fax rule was not unreasonable because the City still "allowed submission by mail or ‘electronically.’“ Id. at 229.  Accordingly, a question exists as to whether it is reasonable for a custodian to forbid both common forms of electronic submission (i.e. fax or e-mail) leaving requestors with regular mail and hand delivery as their only options.  We argue that a "no electronic submission" policy is opposed to N.J.S.A. 47:1A-5(g) which expressly permits “a request for access to a government record [to be] hand-delivered, mailed, transmitted electronically, or otherwise conveyed to the appropriate custodian.”   We also argue that it is not reasonable to presume that the New Jersey Legislature, which was aware of Internet technology when OPRA was enacted, to have intended to restrict requestors to pre-Internet technology for submission of their requests.

Unfortunately, it may take the better part of two years for the GRC to adjudicate these cases.  But, while it would have been best for these cases to have been filed two years ago, the second best time for them to be filed is now.

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