Thursday, April 7, 2016

Kearny's 2-page limit on faxed and e-mailed record responses challenged in OPRA action.

Update 02/02/17:  In its January 31, 2017 Order, the Government Records Council ruled that the Town of Kearny (Hudson County) violated the Open Public Records Act (OPRA) by a) failing to substantively respond to an OPRA request within seven business days, b) failing to individually respond in writing to each record requested, c) failing to honor the requestor's wish to have the responsive records e-mailed rather than mailed and d) charging the requestor $5.56 for copying and mailing records that should have been provided via e-mail at no cost.

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On April 1, 2016, Libertarians for Transparent Government, a New Jersey non-profit corporation filed a Denial of Access complaint with the Government Records Council (GRC) against the Town of Kearny (Hudson County).  At issue is the Town's policy of providing a requestor electronic copies of records only if they consist of two or fewer pages.

The requestor sought the minutes of the Town Council's meetings held in April and October 2015 and requested to receive the minutes as an e-mail attachment.  Kearny, apparently relying on its policy of only e-mailing records that consist of two or less pages, advised the non-profit that it needed to send the Town a check for $5.56 so that paper copies of the records could be mailed.

Hackensack attorney CJ Griffin, who is representing the non-profit in the matter, argued that the Open Public Record Act (OPRA) expressly holds that "[a]ccess to electronic records and non-printed materials shall be provided free of charge, but the public agency may charge for the actual costs of any needed supplies such as computer discs." N.J.S.A. 47:1A-5(b).  She also argued that Kearny's response, received fourteen business days after the request was received, violated OPRA and should be considered a "deemed denial."

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