Monday, January 7, 2013

Government Records Council declines to issue advisory opinion

The Government Records Council (GRC) was created in 2002 when the Open Public Records Act (OPRA) was signed into law.  One of the things that OPRA requires the GRC to do is "issue advisory opinions, on its own initiative, as to whether a particular type of record is a government record which is accessible to the public." (N.J.S.A. 47:1A-7(b))

Since its creation, however, the GRC has issued only one advisory opinion and it had nothing to do with "whether a particular type of record is a government record which is accessible to the public."  Rather, the advisory opinion, rendered in 2006 (and numbered Advisory Opinion No. 2006-1), forced requestors to use an agency's particular OPRA form, if the agency had adopted one.  As can be seen by my blog entry here, this requirement caused practical problems for requestors when an agency declined to make its request form available on its Internet site.  Fortunately, the GRC was forced to repeal 2006-1 after it was overruled by the Appellate Division in  Tina Renna v. County of Union, 407 N.J. Super. 230 (App. Div. 2009). 

So, as it stands now, the GRC has not issued a single advisory opinion that is still in force since its establishment over ten years ago. 

I believe that state agencies, like the GRC, ought to honor and fulfill their statutory mandates.  Also, I think that well reasoned advisory opinions by the GRC would really help both requestors and custodians navigate and better understand OPRA.  To that end, on October 9, 2012, I sent the GRC a rather straightforward request for an advisory opinion.  My request sought to clarify the position taken by some school districts that they had to redact students' names and identifying information from civil lawsuits even though undredacted versions of those lawsuits were available from the court clerk.  I've put my request on-line here. I felt, and still feel, that it's silly for one government agency to suppress information that is readily available from another government agency, and thought that the GRC might be able to inject some sense into this matter through an advisory opinion.

But, unfortunately, GRC Acting Executive Director Karyn G. Gordon informed me today that the Council considered my request at its December 18, 2012 meeting and, without further explanation, "declines to issue an advisory opinion on this issue."  Gordon's e-mail is on-line here.  Perhaps the issue I presented wasn't important enough to warrant the GRC's attention.  Or, perhaps the GRC doesn't want to break its ten-year streak of not issuing valid advisory opinions, even though issuance of such opinions is mandated by state law.

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