Wednesday, November 5, 2014

Availability of records maintained by an agency's insurers, lawyers or other third parties.

Today, I had a records custodian claim that she was not obligated to search beyond the walls of her office for records responsive to my Open Public Records Act request.

Since it is fairly common for custodians to take this position, I have publicly posted my response to her.  I hope that this might be helpful for other requestors who encounter similar situations.
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Dear Records Custodian:

As you know, I submitted an Open Public Records Act request for a settlement agreement that resolved a civil lawsuit against the municipality.  You had initially responded that "no settlement [is] available for this case."

I then requested clarification, explaining that "[i]t is not clear from your response whether a settlement agreement exists, but you don't have it available in your office or whether no such settlement agreement exists."  Today, in an e-mail, you responded that "please note that our records do not contain a settlement agreement.  I am only able to provide you with records in my custody, and have provided the record(s) in your original request that were within my custody."

Please be advised that your duty to disclose records is not limited to disclosing those that are in your office.  You are also required to disclose responsive records that are maintained on the municipality's behalf by third parties such as outside legal counsel.  

When presented with the question of a government agency's duty to disclose settlement agreements held by outside counsel, the Appellate Division held that the agency's custodian's duty was to retrieve those records for the requestor.

Were we to conclude otherwise, a governmental agency seeking to protect its records from scrutiny could simply delegate their creation to third parties or relinquish possession to such parties, thereby thwarting the policy of transparency that underlies OPRA.  
Burnett v. Gloucester County, 415 N.J.Super. 506, 517 (App. Div. 2010).
Accordingly, the question of whether you are required to retrieve records responsive to an OPRA request turns on the nature of the records, not their physical location.

Very truly yours,

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